The Government Speech Forum: Forbes and Finley and Government Speech Selection Judgments
44 Pages Posted: 19 Mar 2010
Date Written: March 18, 2010
The article explores the implications for First Amendment theory and doctrine -- especially public forum doctrine -- of the Supreme Court's 1998 decisions in Arksansas Educational Television Comm'n v. Forbes and Nat'l Endowment for the Arts v. Finley. Specifically, the article examines whether the two cases, viewed together, rest on a principle of government immunity from free speech restrictions when government acts in the capacity of a speaker; and if so, what limits should be placed on government claims of immunity.
The article explores this issue through four more specific questions: (i) How can a line be drawn between government acting as regulator of speech and government acting as speaker? (ii) When, if ever, may the government speak in the form of editorial judgment? (iii) Is a government speech selection judgment about news or public affairs, as in Forbes, different from a judgment about artistic or aesthetic expression, as in Finley? (iv) Does a government's "freedom" to speak (directly or through selection of speech by others) itself justify limiting the freedom of others to speak? Do Forbes and Finley, in other words, announce the arrival of an entirely new constitutional idea, the "government speech forum," and with it presage the radical realignment of the public forum doctrine? The article concludes that this is precisely what Forbes and Finley imply.
Keywords: government, speech, government speech, first amendment, censorship, freedom of speech, constitution, aesthetics
JEL Classification: K1
Suggested Citation: Suggested Citation