For a representative democracy to function, the government must communicate with the governed. A democratic government formulates, explains, justifies, and garners support for its policies and programs through discourse by governmental entities that include elected and appointed officials, administrative agencies, and government agents and employees. Without access to the government’s views, citizens could not evaluate governmental policies and therefore would be unable to make the informed political decisions necessary for effective self-government. Laws, speeches, debates, advertisements, hearings, research reports, leaflets, press conferences, meetings, and even public education are just some of the means by which government communicates its positions to the populace.
Although the First Amendment limits the government’s ability to regulate private speech, the government as speaker is free to determine the content of its messages. Nothing in the Constitution forbids the government from favoring one viewpoint over another— for example, that teenagers should ‘‘Just Say No’’ to drugs—when it engages in public communication campaigns. In the democratic system, the electorate ultimately has the power to hold the government accountable for what it says.
In spreading its views, however, the government is prohibited by the First Amendment from forcing private citizens to espouse governmental messages against their will. For example, in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), the Supreme Court held that school children could not be compelled to salute the flag and recite the pledge of allegiance, stating that the Bill of Rights denies government the power to coerce consent for its policies. Similarly, in Wooley v. Maynard, 430 U.S. 705 (1977), the Court struck down a New Hampshire law requiring automobile license plates to display the state motto, ‘‘Live Free or Die.’’ Writing for the Court, Chief Justice Warren Burger stressed that the state could not require its citizens to act as ‘‘mobile billboards’’ for official ideological positions: ‘‘A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts.’’
In practice, these rules are not always easy to apply. The distinction between what constitutes government, as opposed to private, speech can be difficult to draw in a number of contexts. In states that have specialty or vanity license plate programs, for example, could a driver force the state to issue plates containing words or emblems to which the state objects? If the plates are government speech, the state is entitled to control the message displayed there. If the message on the plates is private speech, the government may not prohibit it just because it expresses an ‘‘offensive’’ viewpoint. Courts that have considered the question have reached conflicting answers; however, commentators tend to conclude the plates should be considered private speech.
Troublesome questions regarding the nature of government speech also arise in the government subsidy context. Sometimes, as part of a government benefit package such as government grants for art or the provision of medical services for the poor, the state attempts to restrict private speech. When the government pays for programs that include expressive activities by private speakers, is the resulting expression ‘‘government speech’’ that can be restricted without reference to the First Amendment?
In Rust v. Sullivan, 500 U.S. 173 (1991), the Supreme Court upheld government regulations that forbid doctors at federally funded family planning clinics from discussing abortion as an option with pregnant women. In an opinion written by Chief Justice Rehnquist, the Court concluded that the regulations did not violate the doctors’ First Amendment rights because ‘‘when the government appropriates public funds to establish a program it is entitled to define the limits of that program.’’
Ten years later, however, the Court in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), invalidated on First Amendment grounds a similar program that prevented federally funded legal aid attorneys from representing clients who sought to challenge existing welfare laws. In striking down the restrictions, the Court distinguished Rust as a case involving government speech. According to the Court, the Title X doctors in Rust had been employed to transmit government information, whereas the legal aid program at issue in Velazquez ‘‘was designed to facilitate private speech, not to promote a governmental message.’’ The Court reiterated that the state may discriminate by viewpoint when funding its own speech, but must allocate subsidies in a viewpointneutral manner when private speech is at issue. The government may constrain the speech of public employees or agents without violating the First Amendment as long as the restricted expression pertains to the employment rather than to general matters of public concern. For example, the Supreme Court held in Pickering v. Board of Education, 391 U.S. 563 (1968), that a public school teacher could not be fired for writing a letter to the editor criticizing the school board. The Court noted that the letter addressed an important public policy matter and did not interfere with the teacher’s ability to fulfill his contractual duties.
However, in Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court upheld the dismissal of an assistant district attorney for circulating a questionnaire about workplace issues. The Court concluded that the public employee’s survey regarding job-related grievances did not rise to the level of a public controversy and, in fact, could reasonably be expected to disrupt the workplace. In his opinion for the Court, Justice White noted that ‘‘[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices without intrusive oversight by the judiciary in the name of the First Amendment.’’
Although government expression is essential for the operation of democratic processes, First Amendment scholars have also recognized that government speech presents certain dangers to our system. Specifically, it is feared that government today is so powerful and ubiquitous that its speech might easily drown out private speakers or otherwise distort the marketplace of ideas. Some scholars, therefore, have concluded that the First Amendment should not only safeguard private speech from government censorship, but also protect democratic decision-making from manipulative or over-reaching government communications. The Supreme Court, however, suggested in Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000), that no First Amendment challenge could be brought against speech by the government. Rather, the Court said that the citizenry could elect new officials who would ‘‘espouse some different or contrary position.’’
NICOLE B. CA ´ SAREZ
References and Further Reading
- Bezanson, Randall P., and William G. Buss, The Many Faces of Government Speech, Iowa Law Review 86 (2001): 1377–1511.
- Herald, Maybeth, Licensed to Speak: The Case of Vanity Plates, University of Colorado Law Review 72 (2001): 595–660.
- Jacobs, Leslie Gielow, Who’s Talking? Disentangling Government and Private Speech, University of Michigan Journal of Law Review 36 (2002): 35–113.
- Yudof, Mark G. When Government Speaks: Politics, Law, and Government Expression in America. Berkeley and Los Angeles: University of California Press, 1983.
Cases and Statutes Cited
- Board of Regents of the University of Wisconsin v. Southworth, 529 U.S. 217 (2000)
- Connick v. Myers, 461 U.S. 138 (1983)
- Legal Services Corporation v. Velzaquez, 531 U.S. 533 (2001)
- Pickering v. Board of Education, 391 U.S. 563 (1968)
- Rust v. Sullivan, 500 U.S. 173 (1991)
- West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)
- Wooley v. Maynard, 430 U.S. 705 (1977)
See also Flag Salute Cases; Forced Speech; Government Funding of Speech; Pledge of Allegiance and the First Amendment; Speech of Government Employees