Government Speech and Circumvention of the First Amendment

Posted: 28 Sep 2017

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

Date Written: 2016

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

Suggested Citation

Strasser, Mark, Government Speech and Circumvention of the First Amendment (2016). 44 Hastings Constitutional Law Quarterly 37-60 (2016) , Available at SSRN: https://ssrn.com/abstract=3043344

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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