Remarks on the South Dakota Law Review Symposium: "The Government Speech Doctrine" March 1, 2012
Burn, Bob, South Dakota Law Review
I am truly honored to be included among those invited to participate as a panelist in the 2012 South Dakota Law Review Symposium. I am particularly pleased to share a spot on this panel with my long time friend and colleague, Dr. Don Dahlin. As many of you know, Professor Dahlin challenged his USD students with the study of American constitutional law at the same time that I was attempting the same with my SDSU students. In addition, I am pleased to become acquainted with Professors Norton and Goldberg and to learn from their comments.
As an undergraduate professor of American civil rights and liberties, I frequently encountered students who harbored a very simplistic understanding of protected freedom of expression at the start of the semester. "It is a free country, under the First Amendment, I can say or write whatever I want" was a common view expressed. It was then my pleasure to observe students grasp a more sophisticated understanding of the breadth and limitations of freedom of expression as we discussed case law that introduced them to a host of expression doctrines, including prior restraint versus subsequent punishment regulations; time, place and manner of expression regulations versus content regulations; unprotected forms of expression versus quasi- protected and preferred forms of expression; pure speech versus symbolic expression; and the freedom to speak versus the freedom not to speak.
I sought to demonstrate to my students through the discussion of case law that freedom of expression doctrines evolved over time and were in a constant state of flux. For example, we might study a strand of case law that would illustrate how commercial expression evolved from a form of unprotected expression to a form of quasi-protected expression with its own four-prong test applied by the courts to determine the validity of a governmental commercial expression regulation. In a similar fashion we might study a strand of case law that would illustrate freedom of religious expression includes the freedom of a public school student not to recite a mandatory but offensive secular pledge and freedom of the press includes the prerogative of a newspaper editor not to afford equal space to those who might have been on the receiving end of the newspaper's caustic editorial comments. We might then proceed to discuss another strand of case law to illustrate how two separate strands might intertwine to create yet another doctrine. In reviewing the examples previously mentioned, we might study case law that would serve as legal precedent for recognizing commercial expression as including the freedom to express commercial speech and the freedom not to express other commercial speech that is not in agreement with one's personal commercial interests. Today's symposium reveals how our study becomes more complicated by the unexpected introduction of a third strand of cases that provides legal precedent for the "government speech" doctrine as a barrier to one's ordinary right to assert freedom of expression as a defense against involuntary participation in speech that one might find offensive or in conflict with one's own beliefs or interests. All of this is certainly a long way from "It is a free country, I can say or write what I want," but complexity is the norm in the study of American civil rights and liberties. Today's topic of "Government Speech" and the contribution that the 2005 ruling of the United States Supreme Court titled, Johanns v. Livestock Marketing Ass'n (1) added to the government speech doctrine exposes us to a particularly complex legal subject matter that includes elements that both satisfy and challenge our desire for logic and reason in law. Let us pursue more carefully the complexity of the government speech doctrine.
As noted in my comments earlier, today's symposium invites the conversion of three diverse speech doctrines: commercial expression, freedom from government coerced expression and government speech. …