The Emerging Oversimplifications of the Government Speech Doctrine: From Substantive Content to a "Jurisprudence of Labels"

I. Introduction In the past couple of decades, the U.S. Supreme Court has created, and continues to develop the contours of, what it refers to as the "government speech" doctrine. In its current incarnation, this doctrine holds that whenever it can be said that the government is engaging in speech, then it is not subject to First Amendment limitations with respect to the impact its actions or message may have on private speakers associated with that speech. Under some iteration of this doctrine, the Court has sanctioned the imposition of normally prohibited viewpoint restrictions on private speakers who accept government funds1 or on government employees speaking on matters of public concern;2 the compulsion of private party funding for speech with which it disagrees;3 and the selective exclusion of speakers from traditional public fora based on the content of the speakers' message.4 In other words, the government speech doctrine has become a First Amendment "escape hatch" for placing substantial restrictions or burdens on private speakers that would otherwise be subject to serious judicial scrutiny and constitutional doubt if traditional free speech principles were applied to these situations. In this Article, I will briefly trace the development of the government speech doctrine and demonstrate that it has become unhinged from its original purpose of assisting in the ordering of governmental and private speech interests in cases where they intersect and conflict. Instead, the current Court has transformed the doctrine from a tool of substantive analysis into what Justice Breyer has recently termed "a jurisprudence of labels."5 On this view, whenever the Court can label a message involving die interaction of both government and private speakers as primarily that of the government, it washes its hands of assessing the constitutionality of die burdens placed on die interests of the private speakers. I will contend that this modern development is misguided and urge a return to a formulation and application of the government speech doctrine as it was originally conceived. II. ORIGINS AND TRANSFORMATION OF THE DOCTRINE Although the Court has, thus far, applied the government speech doctrine in die context of four different types of cases - those involving compelled subsidies by private parties of another's speech, restrictions attached to government subsidies of private speech, government employee speech, and speech on public property - it arose in die first category of cases: claims by private speakers that being compelled by the government to financially subsidize speech with which tiiey disagree violates the First Amendment. In Abood v. Detroit Board of Education,6 a group of public school teachers contended that the government violated their First Amendment rights by making them pay die equivalent of member dues to a private teachers' union that espoused views on various issues.7 The Court disagreed with this to the extent the union used die payments to fund collective bargaining activities germane to its purpose, but agreed it was unconstitutional to compel funding for political or ideological activities with which the plaintiffs disagreed.8 Justice Powell wrote separately to urge stronger First Amendment protections for the plaintiffs than the majority appeared to require.9 As part of his argument, he added a footnote explaining why ordinary taxpayers could be made to fund government, but not private, speech with which they disagreed.10 According to Powell, "the government is representative of the people," while unions are "representative only of one segment of the population . . . with certain common interests."11 In other words, he appeared to be arguing that because in our democratic system the government is the appointed agent of at least the majority of the people who elect it, it is fair enough for those who disagree with its policies to also fund its speech. On this view, one could say dissenting taxpayers consent to such an arrangement under the democratic social contract we are presumed to accept. …