Mixed Speech: When Speech Is Both Private and Governmental

88 Pages Posted: 31 Mar 2008 Last revised: 16 May 2015

Caroline Mala Corbin

University of Miami School of Law

Date Written: 2008

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

Suggested Citation

Corbin, Caroline Mala, Mixed Speech: When Speech Is Both Private and Governmental (2008). New York University Law Review, Vol. 83, p. 101, 2008. Available at SSRN: https://ssrn.com/abstract=1114642

Caroline Mala Corbin (Contact Author)

University of Miami School of Law ( email )

1311 Miller Drive
Coral Gables, FL 33146
United States

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