Government speech

The government speech doctrine, in American Constitutional Law, says that the government need not maintain viewpoint neutrality in its own speech, broadly defined. For example, the Drug Enforcement Administration need not present alternative viewpoints on the benignity of marijuana, but may unequivocally propound its own viewpoint on marijuana's perniciousness.

The Government Speech doctrine establishes that the government may advance its own speech without requiring viewpoint neutrality when the government itself is the speaker. The doctrine was implied in Wooley v. Maynard in 1977, when the Supreme Court acknowledged a legitimate government interest in communicating an official, ideologically partial message to the public. The government’s right to transit its message was immediately contrasted with the private Free Speech rights conveyed by the First Amendment. Thus, when the state is the speaker, it may make content based choices. The simple principle has broad implications, and has led to contentious disputes within the Supreme Court.

In Rust v. Sullivan, government-funded doctors in a government health program were not allowed to advise patients on obtaining abortions. The doctors challenged this law on Free Speech grounds. However, the Court held that because the program was government-funded, the doctors were therefore speaking on behalf of the government. Therefore, the government could say what it wishes, and “the Government has not discriminated based on viewpoint; it has merely chosen to fund one activity to the exclusion of the other.” This case has been reinforced to represent the seminal Government Speech Doctrine case, as seen in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), as well as Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005). In Legal Services Corp. v. Velazquez, the Supreme Court held that, although providing government-funded legal services appeared similar to government-funded doctors, the speech of the lawyers was private speech because lawyers spoke on behalf of their clients. As a result, the government could not prevent these attorneys from filing constitutional suits against the government.

The principle plays a particularly large role when it comes to identifying various forms of speech on government property. In situations when the speech being distributed has been deemed to be private speech, it has generally been found that all government restrictions must be content neutral. This restriction has been found to apply across all forms of government. When it was found that newsracks were a form of private speech, all restrictions on their placement on public streets had to remain content neutral, despite a city’s interests in safety and aesthetics.

Courts below the Supreme Court have also adopted the Government Speech Doctrine. For example, in Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th. Cir. 2000), the Ninth Circuit upheld a school board's denial of a faculty member's decision to post anti-homosexual material on a high school bulletin board celebrating Gay and Lesbian Awareness Month. The court based its decision on its finding that the bulletin board was not a "public forum," such as a sidewalk or a public park where anyone is allowed to exercise Free Speech rights, but rather a private forum for government speech (in this case, the public school system).

Further reading

• Limits on Political Statements by Public Bodies State Law Penalizes Government Speech that Rises to the Level of Electioneering, Public Corporation Law Quarterly, Michigan Bar, No. 3, p. 8, Fall 2008.