Mixed Speech: When Speech Is Both Private and Governmental

Abstract

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often not purely private or purely governmental, but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests of speakers and audiences. According it private speech status overlooks compelling state interests, including the need to avoid establishment clause violations. This Article concludes that a better approach to mixed speech is to subject viewpoint restrictions to intermediate scrutiny. This will allow a more nuanced and transparent balancing of interests than the present either-or approach.

Keywords: First Amendment, Speech, Free Speech Clause, Religion, Establishment Clause, Abortion, License Plates