The End of Government Speech

54 Pages Posted: 4 Aug 2022 Last revised: 5 Dec 2023

See all articles by G. Alex Sinha

G. Alex Sinha

Maurice A. Deane School of Law at Hofstra University

Date Written: August 1, 2022

Abstract

Thirty years ago, the Supreme Court created the government speech doctrine to protect certain forms of government action against First Amendment challenges. The government must speak to govern, the thinking goes, and the First Amendment regulates private rather than governmental speech. Therefore, government action that is classified as “government speech” should not be vulnerable to free-speech claims. The doctrine has since been used accordingly, vaccinating certain government programs against the First Amendment. For example, the doctrine has insulated regulations banning federally-funded medical providers from counseling patients about abortion; advertising campaigns spearheaded by the federal government; state-level choices about which specialty license plates to approve; and municipal decisions about which privately-funded statues to install in public parks. The doctrine now features in dozens of decisions in federal and state courts, and it continues to be deployed by the Court in decisions as recently as this past May.

Commentators have complained about the government speech doctrine for years. They have been especially critical of the Court’s deployment of the doctrine, which appears unnecessary at times and inconsistent or even unprincipled at others. And they have offered a range of suggested reforms meant to steady the ship, such as the adoption of certain transparency requirements for government speech. This paper offers the deepest, most sweeping critique yet of the government speech doctrine: The doctrine cannot be saved. It is intrinsically unconstitutional, and it should be eradicated in its entirety. More specifically, this paper argues that the government speech doctrine is anchored in a conceptual mistake: it is not that the government can sidestep its burdens under the First Amendment whenever it communicates, but rather that the benefits of the First Amendment do not extend to government communication. Moreover, although governments communicate ceaselessly, there is no such thing as government speech, and doing away with that fiction will clarify First Amendment jurisprudence considerably. Instead, the paper outlines a more elegant replacement for the government speech doctrine—and one that remains true to the First Amendment: the recognition of a new type of forum for governmental communication that subsumes the traditional, limited, and nonpublic forums the Court has long recognized.

Keywords: Government speech, government speech doctrine, First Amendment, forum analysis, traditional public forum, limited public forum, nonpublic forum, governmental communication, Supreme Court

JEL Classification: K10, K19, K30, K39, K40, K49

Suggested Citation

Sinha, G. Alex, The End of Government Speech (August 1, 2022). 44 Cardozo Law Review 1899 (2023), Hofstra Univ. Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4177452 or http://dx.doi.org/10.2139/ssrn.4177452

G. Alex Sinha (Contact Author)

Maurice A. Deane School of Law at Hofstra University ( email )

Hempstead, NY 11549
United States

HOME PAGE: http://alexsinha.com

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