Academic journal article Harvard Law Review

Three's a Crowd - Defending the Binary Approach to Government Speech

Academic journal article Harvard Law Review

Three's a Crowd - Defending the Binary Approach to Government Speech

Article excerpt


With its 2009 decision in Pleasant Grove City v. Summum, (1) the Supreme Court held that a Ten Commandments monument placed by a city in a public park was government speech, even though the monument had been designed and submitted by a private group. (2) The decision marked another step in the Court's increasingly confident use of the government speech doctrine, which seems poised to supplant forum analysis in many situations in which both private individuals and the public could be seen to be speaking. A judicial determination that an expressive act is government speech rather than private speech has dramatic consequences for the act's treatment, allowing the state to favor viewpoints in ways otherwise prohibited by the First Amendment. This strict dichotomy has led an increasing number of judges and commentators to suggest that the current framework is insufficient. Instead, they argue that some speech should be treated as a "mixture" or "hybrid" of private and governmental elements. (3) This view is intuitively appealing, seeming to treat difficult questions with suitable nuance. But this Note argues that the hybrid speech approach is both doctrinally and practically unsound, as is the more established "four-factor" approach for analyzing whether speech is governmental or private. (4) Both approaches misleadingly merge what are essentially separate private and governmental expressive acts, allowing private individuals to appropriate the appearance of government approval. Moreover, adding a new category of hybrid speech would derail a doctrine that shows increasing promise. The Supreme Court's recent government speech cases, which focus on whether the state has carefully controlled a method of communication, create manageable and intuitive criteria for distinguishing government speech from that which is entitled to First Amendment protection.

Part I will summarize the creation and growth of the government speech doctrine. Part II will explore the growing discontent with the government speech doctrine's binary approach to speech and the suggestions for a hybrid speech category. Part III will explain the weaknesses of the hybrid speech approach, on both conceptual and practical levels. Part IV will explain the benefits of retaining a binary approach with a singular focus on the amount of supervision exercised by the government. Part V will address reservations about a vigorous government speech doctrine.


The Supreme Court traces the origin of the government speech doctrine back to 1991, (5) when the Court in Rust v. Sullivan (6) scrutinized a regulation promulgated by the Secretary of Health and Human Services interpreting a statute that forbade the use of certain federal funds in "programs where abortion is a method of family planning." (7) The Secretary interpreted the provision broadly, forbidding grantees from referring a pregnant woman to an abortion provider, even upon specific request, (8) and insisting that grantee projects be "physically and financially separate" from any programs that counsel abortion as a method of family planning. (9) The Court rejected a First Amendment challenge to the regulation, reasoning that "[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way." (10) The majority acknowledged that subsidies had been held unconstitutional when they impinged on areas traditionally open to the public for expressive activity. (11) However, it found those cases inapplicable, since the challenged regulations did not require doctors to represent as their own any opinion they did not hold, but allowed them to "make clear that advice regarding abortion is simply beyond the scope of the program." (12)

The Rust decision never used the term "government speech," but later Court decisions interpreted the case as holding that the government may discriminate based on content when it enlists private entities to convey state messages. …

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