Government Speech and Justice Souter (4): Glickman and Finley
Glickman v. Wileman Brothers & Elliott, Inc.
In Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), the Court held that an assessment imposed by the Secretary of Agriculture on fruit growers for generic advertisements did not violate the First Amendment. The Court explained: “First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views.”
Justice Souter dissented, arguing that the four-part Central Hudson test applied to such compelled commercial speech, and that the assessment failed the test. In a footnote, Justice Souter raised the government speech doctrine only to say that the government had never argued that it was applicable in Glickman. Perhaps indicative of his growing discomfort with the government speech doctrine, however, Justice Souter did not describe the doctrine in expansive terms but said that the doctrine meant only that “the government may have greater latitude in selecting content than otherwise permissible under the First Amendment.”
N.E.A. v. Finley
One year later, in N.E.A. v. Finley, 524 U.S. 569 (1998), the Court, in an opinion by Justice O’Connor, held that a federal statute requiring the National Endowment for the Arts, in deciding whether to approve grant applications, to take into consideration whether a project was “indecent” or “disrespectful,” did not facially violate the First Amendment.
One of the issues taken up by Justice Souter in dissent was his vigorous disagreement with the broad proposition set out in Justice Scalia’s concurring opinion, namely, that this case involved government subsidies of speech that were altogether beyond the scope of the First Amendment because such subsidies could never constitute an abridgment of anyone’s speech.
Justice Souter: Government as Patron
More to the present point, Justice Souter observed that in Finley the government had disavowed any claim that it was speaking through its NEA grants. In his view, the government was not a market participant either as speaker or as buyer—both of these roles received special treatment under the First Amendment—but rather was a patron “financially underwriting the production of art by private artists and impresarios for independent consumption.” According to Justice Souter, Rosenberger therefore controlled this case and the government was engaged in impermissible viewpoint discrimination that violated the First Amendment.
Board of Regents of the University of Wisconsin v. Southworth, 529 U.S. 217 (2000), which contains thoughtful discussions of government speech by both Justice Kennedy and Justice Souter.