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Government Viewpoint and Government Speech

74 Pages Posted: 6 Aug 2010 Last revised: 21 Dec 2014

Joseph Blocher

Duke University School of Law

Date Written: August 4, 2010

Abstract

Government speech creates a paradox at the heart of the First Amendment. To satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City, Utah v. Summum, the city’s disagreement with a private message was the heart of its successful government speech argument. Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another? This Article explores that question and why it matters, and suggests ways to reconcile these apparently incompatible principles.

Keywords: First Amendment, government speech

Suggested Citation

Blocher, Joseph, Government Viewpoint and Government Speech (August 4, 2010). Boston College Law Review, Vol. 52, 2011. Available at SSRN: https://ssrn.com/abstract=1653642 or http://dx.doi.org/10.2139/ssrn.1653642

Joseph Blocher (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

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