Document Type
Article
Publication Title
Cardozo Law Review
Publication Date
2023
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 the Supreme Court continues to deploy it—most recently in May 2022.
Commentators have complained about the government-speech doctrine for years. They have been especially critical of the Court’s use 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 Article 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 Article 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 Article 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.
Recommended Citation
G. Alex Sinha,
The End of Government Speech, 44 CARDOZO L. REV. 1899
(2023)
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1539