Government Speech and Justice Souter (9): A Short Coda
Justice Souter could not have imagined in his first year on the Court that Rust v. Sullivan, 500 U.S. 173 (1991), which he joined–see post of September 7, 2010–would be transformed into the paradigmatic government speech case. He also could not have foreseen where the government speech doctrine would lead.
As his views on government speech evolved, they became increasingly thoughtful, even if not daring and path-breaking like the dissents of Justices Holmes and Brandeis in the First Amendment‘s “clear and present danger” years.
Justice Souter became increasingly concerned with the adverse effects of expanding the scope of the government speech doctrine and the consequent immunization from First Amendment scrutiny of government-directed speech.
His attempt–see post of November 10, 2010–to ground the government speech doctrine on the marketplace of ideas rationale was noteworthy. In addition, his emphasis on political accountability and the related need to know that government is both speaking and communicating a particular message was insightful.
Finally, he warned in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), of the need to reconcile the government speech doctrine with the Establishment Clause in order to ensure that the former did not swallow up the latter. See post of December 30, 2010.
For his contributions to, and wise cautionary observations about, the government speech doctrine, now-retired Justice David Souter deserves our appreciation.