The government-speech doctrine is an exception to the typical First Amendment limits on governmental action that abridges private speech based on content and viewpoint.
The doctrine allows the government, through its own speech, to discriminate on the basis of content or viewpoint on the theory that the First Amendment does not apply when the government speaks.
The Supreme Court created the government-speech doctrine in the 1990s, and courts have continued to expand it since. The doctrine has been used to protect governmental actors at the federal, state, and local level from free-speech claims arising under the First Amendment. Legal scholars have expressed significant concerns about the unclear boundaries of the doctrine and its potential to erode First Amendment rights.
Origin of the government-speech doctrine
Decades before it created the government-speech doctrine, the Supreme Court established a high bar for governmental partiality toward or against private expression based on the content or viewpoint expressed. For instance, the court has made clear that the government generally may not punish people for burning an American flag (Texas v. Johnson, 1989) or treat protesters differently from one another based solely on the subject or perspective of their protest (Police Dep’t of Chicago v. Mosley, 1972). When a civilian alleges unconstitutional content or viewpoint discrimination by the government, the courts typically assess the case through forum analysis.
In the 1990s, however, the court began to recognize that the requirements of content and viewpoint neutrality were difficult to reconcile with the government’s need to spread its own messages. The foundational case for the doctrine, Rust v. Sullivan (1991), relied on the special need for the government to speak but did not itself introduce the term “government-speech doctrine.”
Doctors who received federal funds could not talk about abortion
In Rust, the court narrowly upheld new government regulations that prohibited any health or medical professional receiving Title X funding from providing any counseling or information about abortion, thereby limiting the speech of those receiving government funding. The court essentially recognized the need to allow the government to deviate from neutrality in funding its initiatives.
The court wrote, “[t]o hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals, would render numerous Government programs constitutionally suspect.” Thus, even though the funding conditions also affected the doctors’ abilities to speak to their patients about abortion, the court declined to apply the First Amendment.
The reasoning of Rust took hold for future cases: Because the government must speak sometimes, and because such speech may impinge on private citizens in ways that are not content and viewpoint neutral, something had to give. To empower the government to speak without entirely eliminating established constitutional protections against governmental content and viewpoint discrimination, the court adopted the government-speech doctrine.
How the government-speech doctrine is applied in free speech cases
When a court finds that a particular governmental action amounts to government speech, it exempts that action from the exacting scrutiny typical applied to cases alleging content or viewpoint discrimination.
As Justice Samuel Alito recently noted in his concurrence in Shurtleff v. Boston, the Supreme Court has “not set forth a test that always and everywhere applies when the government claims that its actions are immune to First Amendment challenge under the government-speech doctrine.” But it has provided some guidance. Most notably, in Pleasant Grove City v. Summum (2009), the court found government speech in actions that are “meant to convey and have the effect of conveying a government message.”
The court then concluded that municipal decisions to install statues on public land (even when those statues have been donated by private citizens) met this standard. The court later reiterated the same language in Walker v. Texas Division, Sons of Confederate Veterans (2015) when it held that states may reject citizen-nominated designs for specialty license plates without triggering scrutiny under the First Amendment.
Court: Government can levy fees to pay for beef ad campaign
Applying some version of this standard, the court has also held that the government speaks when it compels private citizens to pay subsidies to fund governmental ad campaigns—even if the ads do not disclose their governmental source (Johanns v. Livestock Marketing Association, 2005). In all of these cases, private citizens were unsuccessful in alleging that their First Amendment rights had been violated despite the government’s actions having non-neutral implications for their own expressive activities.
Some of the Supreme Court’s guidance on the application of the government-speech doctrine comes from cases where the court found the doctrine inapplicable. For instance, trademarks are not government-speech (Matal v. Tam (2017). Additionally, despite some parallels to the facts in Rust, the court declined to apply the government-speech doctrine when the federal government enacted a statute barring lawyers who received certain federal funds from representing clients in cases seeking to reform welfare law (Legal Services Corp. v. Velazquez, 2001). More recently, the court found that the flying of flags on governmental property does not amount to government-speech when the government regularly gives civilians permission to use that specific property to fly a flag of their choice (Shurtleff v. City of Boston, 2022).
Some scholars criticize the government-speech doctrine
Legal scholars have expressed significant skepticism about the government-speech doctrine. One controversy around the doctrine concerns its binary classification of speech as either governmental or private, even in situations containing an element of each.
Accordingly, some scholars have suggested amending the doctrine to account for “mixed” speech that is simultaneously public and private, such as “student speech at school events, private advertising on public transit systems, and privately purchased, government-issued specialty license plates.”
Scholars also worry that the doctrine may allow the government to monopolize speech marketplaces, as in Rust, where “[t]he indigent women who relied upon the information about family planning they received in Title X clinics might not have received rival messages.
Another concern is that the doctrine may empower the government to mislead the public, as it arguably did in the beef advertising case Johanns, where, “[b]y claiming government-speech but hiding behind ads that appear[ed] to be those of private parties, the U.S. avoid[ed] accountability while simultaneously creating a false association between the message and certain private parties.”
Others have questioned how consistently courts have applied the doctrine, noting for instance that the modest factual differences between Rust (which involved the regulation of doctors) and Velazquez (which involved the regulation of attorneys) were insufficient to justify the court’s divergent holdings in those cases; after all, “in both cases private speakers continued to operate alongside the government within the relevant medium of expression.”
This scholar has even argued that the doctrine is grounded in a conceptual error and should be replaced by a more sophisticated form of forum analysis.
The Supreme Court has yet to embrace these criticisms, however, leaving the doctrine to play a significant role in content- and viewpoint-discrimination cases.
G. Alex Sinha is an associate professor at the Maurice A. Deane School of Law at Hofstra University.