Ignore the Man Behind the Curtain: On the Government Speech Doctrine and What it Licenses

Abstract:     
While federal and state governments have long been communicating to various audiences in multiple ways in a variety of contexts, the United States Supreme Court has only recently invoked the government speech doctrine to protect certain state acts and policies from First Amendment challenge. The contours of the doctrine are rather fuzzy — there are no clear criteria by which to determine when the government is speaking or what, if anything, the government must be saying in order for the doctrine’s protections to be invoked. This lack of clarity has caused great confusion in the lower courts — judges seem not to know how or when the doctrine should be applied. This article discusses the government speech doctrine and its application, concluding that the Court seems to have created yet another open-ended exception in First Amendment jurisprudence that has the potential to greatly eviscerate the First Amendment protections that are allegedly held quite dear.

Keywords: government speech, monuments, license plates, advertizing

JEL Classification: K10

Accepted Paper Series