Government-speech doctrine can make restrictions too easy

Wednesday, July 30, 2008

Whatever else one might say about the government-speech doctrine, one point appears beyond debate: It makes judges’ work easier.

A relative newcomer to First Amendment jurisprudence, the government-speech doctrine provides that when the government is speaking, it is free of the restrictions that bind it when it regulates others’ speech. The First Amendment, the theory goes, only prohibits the government from infringing on others’ speech; it says nothing about limiting the government’s speech. Therefore, when the government is speaking, the First Amendment essentially does not apply.

The government-speech doctrine has developed since the early 1990s and has played a prominent role in cases involving specialty license plates and compelled industry marketing programs. Judges are increasingly relying on the doctrine in other contexts, however. In just the last two weeks, the doctrine has been cited twice by courts wrestling with issues that traditionally have been laden with complicated First Amendment analysis.

In Bryant v. Gates, decided July 15, the District of Columbia U.S. Circuit Court of Appeals held the Department of Defense could constitutionally discriminate against an advertiser in its newspapers on the basis of the advertiser’s viewpoint. Though the majority of the court analyzed the case under traditional public-forum rules, Judge Brett Kavanaugh wrote a concurring opinion suggesting the government speech doctrine rendered the court’s analysis unnecessary.

Then, on July 23 in Turner v. City Council, the 4th U.S. Circuit Court of Appeals, in an opinion written by retired U.S. Supreme Court Justice Sandra Day O’Connor, relied almost exclusively on the government-speech doctrine in holding the Fredericksburg, Va., city council could require that prayers opening its meetings be nondenominational.

Although the results of these cases are unremarkable from a First Amendment perspective, their uses of the government-speech doctrine alarm some free-speech advocates, including John Whitehead, the president of the Rutherford Institute, a civil liberties group that represented the council member challenging the Fredericksburg policy.

“This ruling shows exactly how dangerous the government-speech doctrine is — it extinguishes free speech,” Whitehead told the Associated Press. “If the government can censor speech on the grounds that it is so-called ‘government speech,’ it will not be long before this label becomes a convenient tool for silencing any message that does not conform to what government officials deem appropriate.”

In Turner, a council member who is also a minister claimed the policy prohibiting him from closing a prayer in the name of Jesus Christ violated his free-speech and free-exercise rights. The council member argued in part that the council could not constitutionally allow some prayers and prohibit others.

O’Connor disagreed, holding that the opening prayers are government speech and that, accordingly, the council can control their content. In doing so, O’Connor applied a four-part test for determining whether speech is government or private speech.

First, O’Connor considered the central purpose of the council meetings. Because the meetings’ purpose is to conduct council business, she easily found the purpose is governmental. Second, O’Connor examined the degree of editorial control exercised over the content of the prayers. Noting the council allows only nonsectarian prayer, she found this factor also weighed in favor of considering the prayers government speech.

Third, O’Connor looked at the identity of the “literal speaker.” Here, although the actual speakers are the individual council members offering the opening prayer, O’Connor found the literal speaker is the council, as members are allowed to speak only by virtue of their roles as council members. Finally, O’Connor analyzed whether the council or the individual member bears the ultimate responsibility for the prayers’ content. While she found the individual members bear some of this responsibility, she found that, overall, the four factors indicate the prayers are government speech.

In the advertising case, Bryant, the majority of the court did not reach the government-speech issue. Instead it applied public-forum analysis to determine whether the military is required to open its newspapers to all advertising. Under this analysis, courts consider whether a forum:

  • is a public forum (such as streets and parks) that traditionally has been open to all speech and must be free of content regulation;

  • a limited public forum (such as a university auditorium) that is open to some types of speech but in which the manner and content of speech can be regulated if necessary to preserve the purpose of the forum; or

  • a nonpublic forum (such as a public employee mailbox) that is open only to speakers selected by the government.

In this case, the court first noted the advertiser sought access only to the advertising section of the newspaper. This section, the court found, is intended solely to facilitate communications between commanders and military personnel. The court therefore concluded the advertising section is a nonpublic forum to which the government constitutionally can deny access.

To Judge Kavanaugh, however, the public-forum analysis was unnecessary. The government-speech doctrine, Kavanaugh wrote, provides “a far easier way to analyze this kind of case.”

The doctrine was easier in this case, Kavanaugh said, because the military’s newspapers and their advertising space “are not forums for First Amendment purposes but instead are the Government’s own speech.” Therefore, the military was free to espouse one viewpoint in its advertising and censor others. Quoting professor Eugene Volokh, Kavanaugh observed that, under the government-speech doctrine, the government “has largely unlimited power to control what is said in its official organs (newspapers, radio broadcasts, and the like) or in organs that it officially endorses, even if this control is exercised in a viewpoint-based way.”

The indisputable correctness of Kavanaugh’s observation is what concerns First Amendment advocates. Under traditional public-forum analysis, courts have taken pains to prevent government from too narrowly classifying forums and from over-regulating speech. Under the government-speech doctrine, however, the government is allowed total control over content as long as the government can show it is the speaker or even that it is endorsing the speaker.

When properly applied, the government-speech doctrine poses little threat to free speech, as the government in some circumstances must have the right to control and direct its message. The power of the doctrine, however, requires it be applied carefully, with close oversight and probing scrutiny.

Otherwise, as O’Connor’s and Kavanaugh’s approaches would appear to warn, restricting speech might become a little bit too easy.