Government Speech in Transition
Norton, Helen, South Dakota Law Review
In Johanns v. Livestock Marketing Ass'n, (1) the Supreme Court offered its clearest articulation to date of its emerging government speech doctrine. (2) After characterizing contested expression as the government's, the Court then held such government speech to be entirely exempt from free speech clause scrutiny. (3) In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today.
The good news is that Johanns and related cases (4) provide a helpful and important vocabulary for recognizing both the inevitability and the value of government speech. Not only must government speak if it is to govern, (5) its speech is often quite valuable to the public. For example, government speech both informs members of the public on a wide range of topics and enables them to identify their government's priorities (and thus to evaluate its performance). (7) For these reasons, the government speech defense appropriately insulates the government's own expressive choices from free speech clause challenges by private speakers seeking to prevent or alter the delivery of the government's own message. (8)
Johanns thus solved a problem faced by a number of lower courts that, up until that time, had no vocabulary for dealing with what we now understand as government speech. Indeed, before the emergence of the government speech doctrine, lower courts often struggled mightily by seeking to apply some sort of forum doctrine to what are really government speech problems. In other words, lower courts too often tried to pound the square peg of what we now understand as government speech into the round hole of public forum doctrine (9)--with confusing and unsettling results.
An example helps illustrate this point. In Griffin v. Department of Veterans Affairs (10)--a decision that predates Johanns--the Fourth Circuit purported to apply forum analysis when rejecting a First Amendment challenge to the Veterans Administration's ("VA's") refusal to fly the confederate flag over one of its cemeteries. (11) Even though the court concluded that "[r]equiring the VA to allow the Confederate flag to fly daily over Point Lookout certainly 'garble[s] [and] distort[s]'" the agency's chosen message, (12) it had no government speech vocabulary from which to draw. It thus strained to characterize the government program at issue as a nonpublic forum, in which government remains free to regulate private speech so long as its actions are reasonable and viewpoint neutral. (13) Yet an honest assessment of the facts would acknowledge that the Veterans Administration's decision to fly the American, and not the Confederate, flag over a Civil War cemetery is actually viewpoint-based, rather than viewpoint-neutral. Thus forum analysis, if properly applied, would have led the court to strike down the agency's actions. But once Johanns' articulation of the government speech defense allowed us to understand that the Veterans Administration's choice about which flag to fly over its property was the government's own expression, this becomes a much easier and more intellectually coherent decision: this was not a case in which the government regulated private speech in some type of forum, but instead a situation in which the government itself was speaking, and was thus free to make its own expressive choices.
The bad news is that in solving one problem with its articulation of the government speech defense, (14) Johanns and its progeny created others by failing to identify any limits--or even a need for limits--to such a defense, despite the protests of dissenting Justices. (15) Moreover, the Court's imprecision has led many inaccurately to understand the Court to have created a "right" for the government to speak, even though the government generally possesses no First Amendment rights of its own. (16) Indeed, the Supreme Court's most recent government speech decision in Pleasant Grove City, Utah v. Summum (17) misleadingly states that "[a] government entity has the right to 'speak for itself. …