Government Speech: An Introduction to a Constitutional Dialogue
Day, David S., South Dakota Law Review
It is a great pleasure to prepare this Introduction to the South Dakota Law Review's Symposium Issue. The Board of Editors selected the timely and controversial topic of the Government Speech Doctrine for this year's Symposium.
The Symposium was structured around two panels. The first panel focused on the Court's decision in Yohanns v. Livestock Marketing Association. (1) This is one of the important milestones in the development of the government speech doctrine. It also is a case deriving from events and lawyers in South Dakota. The trial in Johanns was held in federal District Court in Aberdeen, South Dakota before U.S. District Court Judge Charles Kornmann. The Symposium's first panel was composed of lawyers who tried the case. The panel's discussion traced the progression of Yohanns as it evolved (like almost all civil cases) over the course of several years.
The lawyer panelists were Scott Heidepriem, Ron Parsons, Jeff Cole, and myself. The audience was treated to continuing "debate" on the merits of Judge Kommann's ruling that the "speech" at issue was not government speech. The audience (especially the students) also gained valuable insight into the strategy decisions underlying the case. (2)
After a break, the second panel assembled. It took a broader focus on the present status of the government speech doctrine. The panelists included Professor Steven H. Goldberg (Pace Law School); Professor Helen Norton (University of Colorado); Professor Bob Bums (South Dakota State University); and Professor Donald Dahlin (The University of South Dakota). (3)
II. THE CURRENT GOVERNMENT SPEECH DOCTRINE
The government speech doctrine, as Justice John Stevens noted, is relatively newly "minted." (4) "New," of course, is not necessarily "good." Today, the government speech doctrine is a highly controversial analysis. Traditionally, "government speech" was considered the speech of the government (in the course of its business of governing). While there certainly could be controversy regarding the wisdom or soundness of the government's speech (for example, consider the 1960's Warren Commission Report on the Kennedy Assassination or the Meese Commission Report on Pornography in the 1980's), there seemed to be a general consensus that the government, in the course of its business, could use "government speech" to communicate and to inform the people about governmental policies. Such government speech seemed necessary and proper.
All this, however, changed. Today, we face the "new government speech" doctrine. The new government speech doctrine is conventionally traced back to the Rust v. Sullivan (5) decision, but Rust was not decided as a government speech case. I think the new government speech doctrine is traceable to Legal Services Corp. v. Velazquez. (6) In Legal Services, Justice Kennedy suggested that Rust (which was not a government speech decision) should be read as a government speech decision. Legal Services constituted the point where the Rehnquist Court dramatically expanded the government speech concept. After Legal Services, government speech was composed of two types of speech: (1) the speech of government as the speaker; and (2) the speech of private speakers which carried the "government's message." These two types of speech are reflected in the chart below.
In the new government speech doctrine, government speech is not controlled by Free Speech principles. (7) After Johanns and Summum, the Government speech doctrine is subject only to the constraints of the political process. Accordingly, the cases in the new government speech doctrine apply only a deferential, rational basis standard of judicial review.
Without a counter-majoritarian (heightened) judicial review, there is concern that the government's use of its government speech "power" will create burdens or problems for the system of free expression. …