65 Pages Posted: 7 Aug 2012 Last revised: 23 Nov 2013
Date Written: March 7, 2013
What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no Establishment Clause for secular ideas. So today there is a common belief that government is free to endorse secular ideas. But that belief is mistaken. In this Article, I argue that in fact the Constitution properly imposes a broad principle of government nonendorsement. That principle cuts across multiple provisions — including equal protection, due process, and free speech itself — and it shows how they work together to prohibit endorsements that abridge full and equal citizenship in a free society. Situations where official expression runs up against such limitations include racialized speech, electioneering, same-sex marriage exclusions, political gerrymandering, and messages concerning reproduction. Through analysis of these examples, I establish the requirement of government nonendorsement for the first time. Furthermore, I argue that appreciating the constitutional limits on official endorsement leads to new contributions to theoretical debates surrounding political morality, free speech, and religious freedom.
Keywords: government speech, free exercise, establishment clause, due process, equal protection, free speech, first amendment
Suggested Citation: Suggested Citation
Tebbe, Nelson, Government Nonendorsement (March 7, 2013). Minnesota Law Review, Vol. 98, p. 648, 2013; Brooklyn Law School, Legal Studies Paper No. 287. Available at SSRN: https://ssrn.com/abstract=2125243 or http://dx.doi.org/10.2139/ssrn.2125243