Government Viewpoint and Government Speech

Joseph Blocher

Duke University School of Law

August 4, 2010

Boston College Law Review, Vol. 52, 2011

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.

Number of Pages in PDF File: 74

Keywords: First Amendment, government speech

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Date posted: August 6, 2010 ; Last revised: December 21, 2014

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

Contact Information

Joseph Blocher (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States

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