Viewpoint Neutrality and Government Speech

INTRODUCTIONIt is a bedrock principle of the First Amendment that "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."1 And yet, "the Government's own speech . . . is exempt from First Amendment scrutiny," even when it has the effect of limiting private speech.2 The upshot of these apparently conflicting principles is that, pursuant to government speech doctrine, the government may be able to restrict private expression "because of its message, its ideas, its subject matter, or its content," so long as in so doing it is expressing its own viewpoint.3 Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another?4 Has government speech doctrine undermined the First Amendment's seemingly inviolable viewpoint neutrality requirement?5Government speech doctrine is young, and its youthful exuberance and ambition-not to mention its adolescent awkwardness-has become cause for some parental concern. In 2009, in Pleasant Grove City, Utah v. Summum, the U.S. Supreme Court's most recent government speech case, Justice Souter warned, "it would do well for us to go slow in setting its bounds, which will affect existing doctrine in ways not yet explored."6 As the doctrine grows, the constitutional exemption it receives is increasingly bumping into another apparently absolute First Amendment principle-the requirement that the government be viewpoint neutral when it restricts private speech.7 The prevention of viewpoint discrimination has long been considered the central concern of the First Amendment,8 and yet in some cases government speech doctrine seems to allow-if not outright encourage-viewpoint discrimination in the extreme. Indeed, one way for the government to prevail in a government speech case is to show that a private speaker's message is contrary to, and interfering with, its own.9This does not (yet) mean that government speech doctrine has swallowed the rest of the First Amendment by permitting unchecked viewpoint discrimination against private speakers.10 Many incidents of government speech arguably can be viewpoint neutral, at least from the government's point of view. Although the government speech doctrine does not permit total bans on the expression of a private viewpoint, it does allow what had previously been thought forbidden: the burdening, even if not silencing, of private viewpoints because the government disagrees with them.Summum provides a perfect example. In that case, a religious order called the Summum sought to erect a monument in a public park that already contained other privately donated monuments.11 Pleasant Grove City rejected the monument on the grounds that it was not consistent with the city's purported message of celebrating local history and community.12 The city argued that the placement of monuments in a public park was not susceptible to public forum analysis, but was instead an incident of government speech and therefore exempt from scrutiny under the Free Speech Clause.13 The Court agreed, holding that "the City's decision to accept certain privately donated monuments while rejecting respondent's is best viewed as a form of government speech. As a result, the City's decision is not subject to the Free Speech Clause . . . ."14Although some have described Summum as an "easy" case,15 others are made uneasy by the fact that it blessed a government action that was for all intents and purposes indistinguishable from viewpoint discrimination in a public park-the prototypical example of impermissible speech regulation.16 What this discrepancy illustrates is that some criticisms of government speech-and there have been many trenchant criticisms17-have failed to grasp fully the nature of the beast. It is generally supposed that government speech is dangerous because it threatens to drown out or distort private discourse due to the government's limitless resources and powerful platforms for communication. …