State Actors as First Amendment Speakers

Abstract

Can the First Amendment serve as a source of protection for the speech of state actors? This issue - which courts have often considered but never satisfactorily resolved - arises where one sovereign attempts to limit the speech of another, or where a state actor seeks to take advantage of a statute or common-law rule designed to safeguard constitutional speech interests. I first examine this issue in light of constitutional text, history, and theory, concluding that none of these sources on its own can provide a complete solution. I thus suggest a hybrid approach that draws from two strains of extant constitutional theory, arguing that government speech can lay claim to constitutional protection only where the expressive conduct at issue is intrinsic to the public function of the entity speaking and where that conduct furthers the values of democratic self-government that animate the First Amendment.

Keywords: Constitutional law, First Amendment, Government Speech, Legal status