Government Speech and Justice Souter (1): Introduction
What Is Government Speech?
Simply put, when government itself speaks, rather than regulating the speech of private persons, its speech is immunized from any meaningful First Amendment scrutiny, including the prohibition against engaging in viewpoint discrimination.
Under the doctrine, government becomes a “market participant” in the marketplace of ideas rather than a regulator of that marketplace, and its First Amendment immunity is analogous to the dormant Commerce Clause immunity of state and local governments when they are market participants. Hughes v. Alexandria Scrap Corp., 426 U.S.794, 809-10 (1976).
The Government Speech Doctrine and the Tenure of Justice Souter
Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan, 500 U.S. 173 (1991), was handed down in 1991, and the most recent government speech decision, Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), was handed down in 2009.
Justice Souter provided the fifth vote in Rust, generally regarded as the seminal government speech case even though the term was not used there. Justice Souter was thus “present at the creation” of the government speech doctrine. He joined the majority in Rust (Justice Brennan almost certainly would not have), a decision Justice Souter may have come to regret, but he did not write an opinion.
In contrast, in almost every subsequent government speech-related case Justice Souter wrote concurrences or dissents that demonstrated a deep engagement with the doctrine. Over the course of his tenure on the Court, his views evolved along with those of the Court as he became increasingly sensitive to, and critical of, the Court’s expanding use of the doctrine to immunize speech from First Amendment scrutiny.
His position ultimately reflected several major concerns that lower courts and academic commentators continue to explore: the definition and scope of government speech; the closely related question of political accountability; and the interplay between the government speech doctrine and the Establishment Clause.
Forthcoming Article and Subsequent Posts
Last winter the Brigham Young University Law Review invited several academics to participate in a symposium on government speech and to prepare articles for publication in the Law Review in early 2011. I chose to write about Justice Souter’s contributions to the subject.
Subsequent posts, based on a draft of my forthcoming article (which will be made available for downloading when published), will set out Justice Souter’s views in the context of the Court’s government speech decisions.