Imaginary Threats to Government's Expressive Interests

Abstract

The Supreme Court’s emerging government speech doctrine permits the government to refuse to allow other parties to join, and thus change or distort, its own message. In this way, the government speech doctrine appropriately protects government’s legitimate – and valuable – expressive interests by providing a defense to free speech clause claims by private speakers who seek to compel the government to deliver their own views. Too often, however, governmental bodies are asserting their own expressive interests to claim – and some courts are permitting them to exercise – the power to punish private parties’ speech that does not threaten the government’s ability to express its own views. For example, some federal courts have relied on government speech interests to justify the exclusion of peaceful dissenters from attendance at the government’s public functions, and another has invoked government’s expressive interests to justify the punishment of student speech in public schools. These cases feature courts that are disturbingly quick to define government’s expressive interests broadly, and quicker still to perceive private speakers as threatening those interests. By identifying such troubling examples, this sessay urges attention to, and concern for, this trend’s potential trend.

Keywords: constitutional law, First Amendment, government speech, student speech

JEL Classification: K30