Nahmod Law

The Government Speech Doctrine Comes of Age

The government speech doctrine came of age in a series of cases beginning with Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), where Justice Souter forcefully set out his own views in dissent.

But before addressing Johanns, I think it is worth mentioning that shortly after University of Wisconsin v. Southworth, 529 U.S. 217 (2000), discussed in a prior post, the Court held in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), that a federal statute violated the First Amendment because it prohibited recipients of Legal Services Corporation funds from providing legal representation for efforts to amend or challenge existing welfare laws, even if that legal representation was separately funded. Writing for the Court (including Justice Souter), Justice Kennedy explained and then distinguished Rust:

The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to government speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or in instances, like Rust, in which the government “used private speakers to… transmit information pertaining to its own program.”

531 U.S. at 541 (citations omitted). However, according to the Court , not every government subsidy creates a government speech scenario. Where, as in Legal Services Corporation, government subsidized individuals and groups for the purpose of soliciting a diversity of views, then forum analysis is appropriate just as it was in Rosenberger. In these situations, when there is no “programmatic message,” the government may not discriminate on the basis of viewpoint. In the course of its opinion, the Court also emphasized the distorting effects of the funding condition on the adversary system and the legal process. For these reasons, the statute violated the First Amendment.

Johanns v. Livestock Marketing Association

Johanns v. Livestock Marketing Association, handed down in 2005, generated important doctrinal developments in government speech doctrine. Here, the Court, in an opinion by Justice Scalia, ruled that mandatory assessments on beef producers that were used to disseminate the advertisement, “Beef, it’s what’s for dinner,” did not violate the First Amendment because the advertisement constituted government speech. Johanns was very similar factually to an earlier case, United States v. United Foods, 533 U.S. 405 (2001), which had held that a government assessment on mushroom growers for generic advertisements was compelled speech forbidden by the First Amendment. But, unlike in United Foods, in Johanns the government argued that the advertisements were government speech since the Secretary of Agriculture exercised final control over the message. Read the rest of this entry »

University of Wisconsin v. Southworth

Two years after Finley, discussed in a prior post, University of Wisconsin v. Southworth , 529 U.S. 217 (2000) , presented a fact pattern similar to the one the Court had addressed in Rosenberger, also discussed in a prior post. This time, though, the First Amendment issue was raised by students who were being “taxed” to fund the speech of student organizations.

In Southworth, the Court, in an opinion by Justice Kennedy, held that a mandatory student activity fee assessed on students to support student organizations did not violate the First Amendment rights of students who objected to the political and ideological speech of certain funded organizations. Southworth was essentially a compelled speech/subsidy case, because the university had expressly declared that its disbursement of funds was not government speech. The Court therefore did not engage in government speech analysis.

A Possible Rationale for the Government Speech Doctrine: Political Accountability

Nevertheless, Justice Kennedy did discuss the government speech doctrine and its possible justification. He suggested that had Southworth involved government speech, it would have been outside the bounds of First Amendment scrutiny because political accountability, rather than judicial review, served to limit the government. “When the government speaks, for instance, to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.” 529 U.S. at 235. Read the rest of this entry »

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.” Read the rest of this entry »

This is the third in a series of posts on now-retired Justice Souter’s positions on government speech. The first post was an introduction and the second addressed Rust v. Sullivan, 500 U.S. 173 (1991).

Rosenberger v. Rectors of the University of Virginia

Fours years after Rust, the Court held in Rosenberger v. Rectors of the University of Virginia, 515 U.S. 819 (1995), that a public university’s refusal to fund a student magazine with a Christian theme, while at the same time funding other student organization publications, was a violation of the Free Speech Clause of the First Amendment. The Court found that the Student Activity Fund from which the Christian magazine was applying for funds was a “metaphysical” limited public forum that was intended to enable private speech, and as such could not discriminate according to viewpoint. Though the university argued that it was discriminating according to content (permitted in a limited public forum), the Court rejected this argument and effectively held that religious belief was a viewpoint.

Rosenberger is often cited for its broad language describing the government speech doctrine implicit in Rust. Justice Kennedy, writing for the Court, said: “We recognized [in Rust] that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” 515 U.S. at 833 (citations omitted). However, Rosenberger itself was not a government speech case: the university had expressly stated that its speech was not at issue. In fact, one of the requirements imposed on student organizations for receiving funding was signing a disclaimer that distanced the university from the speech of the recipients. Read the rest of this entry »

Rust v. Sullivan

Oral argument in Rust v. Sullivan, 500 U.S. 173 (1991), was held on October 30, 1990, which made Rust one of the first cases that Justice Souter heard. In a 5-4 vote that almost certainly would have gone the other way had Justice Brennan still been on the Court, the Court, in an opinion by Chief Justice Rehnquist, upheld federal regulations that prohibited doctors from engaging in abortion counseling as part of a federally funded Title X project.

The ruling rested on the distinction between a subsidy and a restriction. The Court began with the premise that government may choose to fund one activity to the exclusion of another, even if the latter involves the exercise of a fundamental right. It then determined that Rust was not an “unconstitutional conditions” case, because Title X focused on the project rather than the grantee: Title X did not restrict the recipients of funding absolutely from engaging in pro-abortion activities; it merely mandated that Title X projects not include such activities. Therefore, if a doctor wished to go beyond the scope of a Title X program, he or she remained free to do so. Title X merely required that the funds for Title X projects be segregated from funds used to support activities beyond the scope allowed by Title X.

The Dissenters

Justice Blackmun dissented, joined by Justice Marshall and by Justice Stevens in part and by Justice O’Connor in part. “Until today, the Court has never upheld viewpoint- based suppression of speech simply because that suppression was a condition upon the acceptance of public funds.” For three of the dissenters (not including Justice O’Connor), what distinguished Rust from Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983), which dealt with funding coupled with conditions, was that Title X was in part aimed at the suppression of “dangerous ideas.” Because the counseling and referral provisions in Title X were both content and viewpoint based, they violated the First Amendment. The three dissenters further argued that the majority’s mantra that government is free to fund one activity to the exclusion of another was both overly simplistic and incorrect. Read the rest of this entry »

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. Read the rest of this entry »