The Emerging Oversimplifications of the Government Speech Doctrine: From Substantive Content to a 'Jurisprudence of Labels'

Abstract

In the past couple of decades, the U.S. Supreme Court has created, and continues to develop the contours of, what it refers to as the "government speech" doctrine. In its current incarnation, this doctrine holds that whenever it can be said that the government is engaging in speech, then it is not subject to First Amendment limitations with respect to the impact its actions or message may have on private speakers associated with that speech. Under some iterations of this doctrine, the Court has sanctioned the imposition of normally prohibited viewpoint restrictions on private speakers who accept government funds or on government employees speaking on matters of public concern, the compulsion of private party funding for speech with which it disagrees, and the selective exclusion of speakers from traditional public fora based on the content of the speakers’ message. In other words, the government speech doctrine has become a First Amendment "escape hatch" for placing substantial restrictions or burdens on private speakers that would otherwise be subject to serious judicial scrutiny and constitutional doubt if traditional free speech principles were applied to these situations.

In this Article, Professor McDonald begins by tracing the development of the government speech doctrine, focusing primarily on the Supreme Court cases of Abood v. Detroit Board of Education, Keller v. State Bar of California, Rust v. Sullivan, Board of Regents v. Southworth, and Johanns v. Livestock Marketing Association. Through this discussion, Professor McDonald demonstrates that the government speech doctrine has become unhinged from its original purpose of assisting in the ordering of governmental and private speech interests in cases where they intersect and conflict. Instead, he argues, the current Court has transformed the doctrine from a tool of substantive analysis into what Justice Breyer has recently termed "a jurisprudence of labels." Based on this view, whenever the Court can label a message involving the interaction of both government and private speakers as primarily that of the government, it washes its hands of assessing the constitutionality of the burdens placed on the interests of the private speakers. Professor McDonald contends that this modern development is misguided and urges a return to a formulation and application of the government speech doctrine as it was originally conceived.

Keywords: speech, free speech, First Amendment, Supreme Court, Abood, Keller, Rust, Southworth, Johanns, public speech, private speech, jurisprudence of labels, government, Constitution, government speech