From Substantive Content to a "Jurisprudence of Labels"
By Barry P. McDonald
2010 BYU Law Review 2071
[T]he “government speech” doctrine . . . hold[s] 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 . . . this doctrine, the [U.S. Supreme] Court has sanctioned the imposition of normally prohibited viewpoint restrictions on private speakers who accept government funds1 or on government employees speaking on matters of public concern2; the compulsion of private-party funding for speech with which it disagrees3; and the selective exclusion of speakers from traditional public fora based on the content of the speakers’ message4. 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. . . .
In this Article, I . . . trace the development of the government speech doctrine and demonstrate that it 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.5 [W]henever 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. . . .6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57
A year after Keller v. State Bar of California [asserting thatregular taxpayers do not have a First Amendment right to prevent ordinary government agencies from using their taxes to promote disagreeable views], the Court decided Rust v. Sullivan58 [and took] the position that the government could constitutionally ban the operators of family planning clinics from providing abortion counseling as a condition of receiving federal funding, rejecting the contention that such a ban
amounted to viewpoint discrimination prohibited by the First Amendment.59. . . 60 61 The Court made no reference to Keller or the government speech doctrine. . . .
Four years later, Justice Kennedy . . . built on this theme from Rust in dictum in a case where a religious student publication contended that the denial of printing subsidies by a public university amounted to unconstitutional viewpoint discrimination because secular student publications were eligible to receive them.62 The Court agreed with the plaintiff on the grounds that the university had created a virtual public forum to encourage student speech with the funds, and any viewpoint discrimination in administering them was unconstitutional.63 Kennedy rejected the university’s reliance on Rust and related cases. . . . Instead, he characterized Rust as standing for the principle that when the government itself speaks or grants funds to private speakers to convey the government’s own message, it is then entitled to control that message.64 . . . But in the case under review, Kennedy reasoned, the government was facilitating the expression of a diversity of private views through the creation of a limited public forum.65 Once again, the Court made no mention of Keller or the government speech doctrine. . . .
Kennedy later extended this reconceptualization of Rust in Board of Regents v. Southworth.66 . . . In dictum in that case, he set forth the central premise of the government speech doctrine articulated in Keller . . . but oddly cited to Rust, rather than Keller, in support of it.67 One year later, Kennedy again continued his morphing of Rust in a government speech subsidy decision . . . to support the proposition that the government can promote its own views through its speech or funding decisions.68 . . .69 And somewhat ironically, two years later . . . the Court seemed to return to the original meaning of Rust . . . and explicitly rejected the characterization of Rust as being dependent upon the government speaking a message.70
Thus we can see that Justice Kennedy contributed substantially to the decoupling of the government speech doctrine from Keller. . . . [O]ne suspects [the reason behind] it had something to do with the specific results of Keller and Rust. Keller was the decision in which the Court validated the principle that as a general matter the government can take positions contrary to that of dissenting citizens, but the Court found it inapplicable to the agency speaking in that case (the State Bar) and decided against the government’s position. By contrast, in Rust the Court sided on behalf of the government interests over those of the dissenting private speakers (the objecting staff of the family planning clinics). Thus, when Kennedy was seeking support in Rosenberger v. Univ. of Virginia for the notion that the government can choose to fund its own messages through restrictions on private speakers in order to further its policies, he naturally turned to Rust rather than Keller. . . . The irony is that in Rosenberger, Southworth, and Legal Services Corp. v. Velazquez, where Kennedy uncritically lifted the government speech doctrine out of its Keller context, his discussions were all dicta since the government was not a speaker in them. . . .
[Did] this uncritical translation of the Keller government speech doctrine to the restricted funding decisions matter[?]71 I would argue that it did since what got lost in the translation was the principle that just as the government should not have carte blanche power to compel funding of disagreeable messages in every case where it speaks, so it should not have similar powers to impose speech restrictions on private speakers simply because they receive government money as part of a program that reflects a particular policy position.
Barry P. McDonald, professor of law, is a recognized scholar in the area of First Amendment Law. His writing on freedom of expression and religion has appeared in law reviews published by Northwestern, Emory, Notre Dame, Ohio State, and Washington and Lee. McDonald clerked for Chief Justice William H. Rehnquist during the court’s 1989–90 term.
Reprinted with permission of the BYU Law Review.
3 Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005).
4 Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).
59 Id. There is little doubt that if Justice Brennan had remained on the Court one more year, the decision would have gone 5–4 in the opposite direction. Indeed, one suspects from Justice Souter’s later voting pattern that he would have been on the side of the dissenting justices if he had possessed a little more experience on the Court when Rust was decided.
71 As noted earlier, at least in the compelled subsidy decision in Southworth, Kennedy acknowledged that, consistent with Keller, there were some constraints on the government’s ability to escape constitutional scrutiny in those disputes, at least until Justice Scalia abandoned that notion in Johanns.