Government speech

The government speech doctrine, in American Constitutional Law, deals with speech made by the government. The doctrine says that the government need not maintain viewpoint neutrality in its own speech, broadly defined. For example, the Drug Enforcement Administration need not present alternative viewpoints on the benignity of marijuana, but may unequivocally propound its own viewpoint on marijuana's perniciousness.

On its face, the government speech doctrine is unobjectionable, as it is difficult to imagine how a government could accomplish many goals without adopting definite stances on issues. However, when applied in First Amendment cases, the doctrine can be highly controversial. This is because courts often must decide whether a governmental action that prevents an individual from expressing his or her viewpoint is better seen as unconstitutional suppression of individuals' speech in a forum or unbounded government speech.

Central to the First Amendment is a prohibition on content based government regulation of speech. In 1972 in Police Department of Chicago v. Mosley the Supreme Court wrote, “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” In 1992, in R.A.V. v. City of St. Paul, it wrote “Content-based regulations are presumptively invalid.” Most recently, in Morse v. Frederick, the Supreme Court claimed it to be a “cardinal First Amendment principle” that “censorship based on the content of the speech, particularly censorship that depends on the viewpoint of the speaker, is subject to the most rigorous burden of justification.” This broad principle has been reinforced repeatedly in First Amendment cases. The Government Speech doctrine serves as one notable exception.

The Government Speech doctrine establishes that the government may advance or restrict its own speech in a manner that would clearly be forbidden were it regulating the speech of a private citizen. The doctrine was implied in Wooley v. Maynard in 1971, when the Supreme Court acknowledged a legitimate government interest in communicating an official, ideologically partial message to the public. The government’s right to transit its message was immediately contrasted with the private Free Speech rights conveyed by the First Amendment. Thus, when the state is the speaker, it may make content based choices. The simple principle has broad implications, and has led to contentious disputes within the Supreme Court.

In Rust v. Sullivan a statute which limited the ability of recipients of government fund, to engage in abortion related activities was challenged on Free Speech grounds as the plaintiffs claimed their ability to provide advice and information to their patients was impermissibly limited. The Court held, 5-4, that the government can selectively fund certain activities and restrict others, even it bases its restrictions on the content of private speech, stating “the Government has not discriminated based on viewpoint; it has merely chosen to fund one activity to the exclusion of the other.” The dissenters protested, “[u]ntil today, the Court never has upheld viewpoint-based suppression of speech simply because that suppression as a condition upon the acceptance of public funds.” The Supreme Court took a starkly different position in surprisingly similar circumstances in Legal Services Corp. v. Velazquez when, in another 5-4 decision, it was found that the Legal Services Corporation Act facilitated private speech rather than promoted a governmental message because attorneys who were funded by the program spoke on behalf of their clients in pursuing welfare claims. It therefore followed that because the speech at issue was private speech, the Government Speech Doctrine did not apply and the statute was an unconstitutional content-based restriction on speech. The dissenters argued that the Court was contradicting itself, writing:

The Court contends that Rust is different because the program at issue subsidized government speech, while [the program at issue in this case] funds private speech. This is so unpersuasive it hardly needs response. If the private doctors’ confidential advice to their patients at issue in Rust constituted ‘government speech’, it is hard to imagine what subsidized speech would not be government speech. Moreover, the majority’s contention that the subsidized speech in these cases is not government speech because the lawyers have a professional obligation to represent the interests of the clients founders on the reality that the doctors in Rust had a professional obligation to serve the interests of the patients.

—dissenting opinion, Legal Services Corp. v. Velazquez

The principle plays a particularly large role when it comes to identifying various forms of speech on government property. In situations when the speech being distributed has been deemed to be private speech, it has generally been found that all government restrictions must be content neutral. This restriction has been found to apply across all forms of government. When it was found that newsracks were a form of private speech, all restrictions on their placement on public streets had to remain content neutral, despite a city’s interests in safety and aesthetics.

Another concrete example of a controversial application of the government speech doctrine is Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th. Cir. 2000). In Downs, the Ninth Circuit upheld a school board's denial to a faculty member of the right to post anti-homosexual material on a high school bulletin board celebrating Gay and Lesbian Awareness Month. The court based its decision on its finding that the bulletin board was not a First-Amendment protected forum, but rather completely discretionary government speech. As another example, public broadcasting is generally considered government speech, stifling potential First Amendment claims based on unequal, viewpoint-based access to air. See, e.g., Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033 (5th Cir. 1982).

Further reading

• David L. Hudson and John R. Vile (2007). The Rehnquist Court. Greenwood Publishing Group. pp. 91. ISBN 0275989712. 
• Danial E. Troy (2005). "Do We Have a Beef With The Court? Compelled Commercial Speech Upheld, but It Could Have Been Worse". In Mark K. Moller. Cato Supreme Court Review. Cato Institute. ISBN 1930865805. 
• Jeffrey S. Lubbers (2006). "Agriculture". Developments in Administrative Law and Regulatory Practice, 2004–2005. American Bar Association. pp. 169–172. ISBN 9781590317549. 
• Jeffrey S. Lubbers (2006). "Mandatory Assessments for Generic Advertising of Agricultural Products: Johanns v. Livestock Marketing Association". Developments in Administrative Law and Regulatory Practice, 2004–2005. American Bar Association. pp. 33–35. ISBN 9781590317549. 
• Limits on Political Statements by Public Bodies State Law Penalizes Government Speech that Rises to the Level of Electioneering, Public Corporation Law Quarterly, Michigan Bar, No. 3, p. 8, Fall 2008.