Justice Souter on Government Speech

I. INTRODUCTION 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 doctrine1 in the Supreme Court. Rust v. Sullivan2 was handed down in 1991, and the most recent case, Pleasant Grove City v. Summum,3 was handed down in 2009. Justice Souter provided the fifth vote in Rust, generally regarded as the seminal government speech case,4 and was thus present at the creation of the government speech doctrine. He joined the majority in Rust, a decision he may have come to regret,5 but did not write an opinion. In contrast, in almost every subsequent government speechrelated case, Justice Souter wrote concurrences or dissents diat demonstrated a deep engagement with the doctrine. Over the course of his tenure on die Court, his views evolved along with those of the Court as he became increasingly sensitive to the Court's expanding use of the doctrine. 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 die government speech doctrine and the Establishment Clause. For example, who decides whether it is the government that is speaking and what it is saying? What standards does the decision maker use for that decision? Why should government speech be immunized from First Amendment free speech scrutiny? And isn't there the potential of considerable tension between the government speech doctrine and the Establishment Clause? This Article is modest in scope and primarily descriptive. I propose to address each of the nine Supreme Court decisions in which government speech is discussed either by the Court or by Justice Souter, with an emphasis on Justice Souter's often differing and cautionary observations about the doctrine. I do not engage here at a normative level with the government speech doctrine, even though I am worried about the Court's increasing use of the doctrine to avoid difficult First Amendment issues. II. BIRTH AND UNCERTAIN BEGINNINGS: RUST AND ROSENBERGER Oral argument in Rust v. Sullivan was held on October 30, 1990, which made Rust one of the first cases that Justice Souter heard.6 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 diat prohibited doctors from engaging in abortion counseling as part of a federally funded Tide X project.7 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.8 It then determined that Rust was not an "unconstitutional conditions" case because Title X focused on the project rather than the grantee.9 Title X did not absolutely restrict the recipients of funding from engaging in pro-abortion activities; it merely mandated that Title X projects not include such activities.10 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.11 Four justices dissented.12 "Until today, the Court never has upheld viewpoint- based suppression of speech simply because that suppression was a condition upon the acceptance of public funds."13 For Justices Blackmun, Marshall, and Stevens, what distinguished Rust from Regan v. Taxation with Representation of Washington,14 which dealt with funding coupled with conditions, was that Title X was in part aimed at the suppression of "dangerous ideas. …