Mixed Public-Private Speech and the Establishment Clause

65 Pages Posted: 27 May 2010 Last revised: 7 Mar 2011

See all articles by Claudia E. Haupt

Claudia E. Haupt

Northeastern University - School of Law; Yale University - Yale Information Society Project

Date Written: May 1, 2010


Determining responsibility for speech is important for two reasons: to address rights to forum access and to identify whether Establishment Clause limits apply. Private speakers may demand rights of access to a public forum, and in such a forum they may articulate their message free from viewpoint restrictions. Private speech, moreover, is not subject to Establishment Clause limits. If the speech is government speech, the Free Speech Clause does not apply, and the government may articulate its message to the exclusion of all other speakers. If the government speech has religious content, it may run afoul of the Establishment Clause. This Article proposes an “effective control” framework to determine Establishment Clause responsibility in cases where public and private actors jointly engage in speech. Between the end-points of purely governmental and purely private speech, it places such speech on a mixed speech continuum. After introducing the framework, this Article demonstrates how the theory of “effective control” functions in a variety of contexts implicating the Establishment Clause, including permanent and temporary displays, prayer in public schools, access to public school property, and legislative prayer. In some instances, discussed as “truly hybrid speech” in this Article, the effective control inquiry fails to identify a unilaterally responsible party. In these limited cases, this Article argues that the speech is sufficiently private for forum access purposes – meaning that the speakers may claim a right to forum access – and at the same time sufficiently governmental for Establishment Clause purposes, creating a secular forum in certain narrowly defined speech contexts.

Keywords: constitutional law, establishment clause, law and religion, first amendment

JEL Classification: K1, K11, K39

Suggested Citation

Haupt, Claudia E., Mixed Public-Private Speech and the Establishment Clause (May 1, 2010). Tulane Law Review, Vol. 85, p. 571, 2011, GWU Legal Studies Research Paper No. 506, GWU Law School Public Law & Legal Theory Research Paper No. 506, Available at SSRN: https://ssrn.com/abstract=1616167

Claudia E. Haupt (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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