Why Should the First Amendment Protect Government Speech When the Government Has Nothing to Say?

Abstract

It is an uncontroversial fact of political life that the government sometimes must communicate with the public. For several years, however, the Supreme Court has used this uncontroversial fact as a justification for developing a First Amendment doctrine of government speech. This new doctrine does more than simply recognize the government's authority to speak out on matters of public policy; as envisioned by the Supreme Court, the doctrine also allows the government to silence or coerce the speech of those in the private sector who wish to speak out against the government. In much the same way that private speakers have long been given a First Amendment right to fend off government control of their speech, the government now has been afforded a First Amendment "right" to free speech as well. The question is whether this new "right" is necessary. Both the facts and theory of the Court's new government speech cases suggest that the answer to this question is no. For the most part, the cases in which the Court has resorted to its new government speech doctrine involve situations in which the government's ability to communicate with the public would not have been inhibited in any way if such a doctrine did not exist. The Court has even relied on its new government speech doctrine in several cases in which the government either was communicating ambiguously or not at all. It is a mystery why the government should be allowed to employ a First Amendment "right" to government speech against private speakers when the government has nothing to say. This Article addresses the Court's new government speech doctrine. After reviewing the cases in which the Court develops this doctrine, the Article concludes that these cases do not support the Court's increasingly expansive conception of government speech. These cases indicate instead that all of the legitimate purposes of government speech would be served just as effectively by a much more truncated conception of the government speech doctrine than by the broader version being developed by the Court. The Article concludes by proposing, in the alternative, that the government speech doctrine could be eliminated entirely without harming a single one of the government's legitimate objectives. It may be, in other words, that from a First Amendment perspective, the best government speech doctrine is no doctrine at all.