Government Speech and Circumvention of the First Amendment

Abstract

This article explores the Government Speech doctrine. While the First Amendment severely limits the government’s ability to prohibit disfavored speech, it does not impose similar constraints on the government’s ability to craft its own message. Regrettably, the United States Supreme Court has not offered helpful criteria to determine when the government is acting as speaker rather than as regulator, and the circuit courts have illustrated both some of the difficulties in attempting to cabin the current doctrine and some of the dangers posed until the doctrine is limited in a coherent and meaningful way. Unless the Court clarifies this matter, we can only expect a more confused jurisprudence and an increasing number of instances in which the circuit courts will treat relevantly similar cases differently.

Keywords: Government Speech, Neutrality, Attribution, Control, Public Meaning

JEL Classification: K10