Identifying Government Speech

Abstract:     
The U.S. Supreme Court has interpreted the Speech Clause of the First Amendment to mean that when the government distributes money or other resources to private speakers, it generally may not discriminate among speakers based on viewpoint. The government is, however, allowed to express its own viewpoint, even if it enlists the aid of private parties to get the message out, as long as the communication does not violate some separate legal restriction, such as the Establishment Clause. Together, these understandings form the core of what has become known as the government speech doctrine. This doctrine signals that distinguishing between government speech and private speech will become crucial in many cases involving either the Speech Clause or the Establishment Clause. While the Court has announced the distinction in general terms and has decided cases based on it - including a notable case in 2009 involving Ten Commandments monuments - the Court has yet to announce a standard by which judges can reliably identify government speech across a range of cases. After examining several attempts by others to formulate such a standard, this Article suggests that the Court has now identified three basic types of government speech. Accordingly, the Article proposes a three-factor test for identifying government speech, demonstrating how the test could function as a unifying explanation of precedent and a uniform method of resolving future cases.

Number of Pages in PDF File: 69

Keywords: First Amendment, freedom of speech, expression, government speech

Accepted Paper Series