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Government Speech in Transition

7 Pages Posted: 13 Jul 2012 Last revised: 15 Dec 2012

Helen L. Norton

University of Colorado School of Law

Date Written: October 29, 2012

Abstract

This symposium essay explores the legacy of the Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n. There the Court offered its clearest articulation to date of its emerging government speech doctrine. After characterizing contested expression as the government’s, the Court then held such government speech to be exempt from free speech clause scrutiny. In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today. On one hand, Johanns marked the Court’s long overdue recognition of the ubiquity and importance of government speech, appropriately exempting the government’s own expressive choices from free speech clause challenges by private speakers seeking to prevent or alter the delivery of the government’s own message. On the other hand, the Court’s failure to clarify that the government speech defense is a shield and not a sword -- much less to define and limit the scope of the defense (and thus the size of the shield) -- has emboldened some governments and courts to misappropriate the doctrine to punish individuals for speech that does not encroach on the government’s expressive interests.

Suggested Citation

Norton, Helen L., Government Speech in Transition (October 29, 2012). 57 S. Dak. L. Rev. 421 (2012); U of Colorado Law Legal Studies Research Paper No. 12-14. Available at SSRN: https://ssrn.com/abstract=2104222

Helen L. Norton (Contact Author)

University of Colorado School of Law ( email )

401 UCB
Boulder, CO 80309
United States

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