Defining Government Speech: Recent Approaches and the Germaneness Principle

Abstract

In the last decade, the U.S. Supreme Court and lower federal courts have fashioned the -principle that the First Amendment does not limit the government's ability to determine the content of its own messages. Yet the Supreme Court has not defined what is meant by “government speech.” Defined broadly, it may encompass viewpoint-based messages on controversial social issues, privately funded advocacy on behalf of certain industries, and official endorsement of certain ideologies. In the face of this uncertainty, and confronted with numerous recent cases in which the government asserts its right to expression, the U.S. courts of appeal have devised three major approaches to distinguishing government speech from private speech. The Supreme Court touched on aspects of these approaches in an important 2005 opinion, yet significant questions remain about the definitional contours of the Court's developing government speech doctrine.

A Century of JMCQ Legal Issues in Media: Scholarly Commitment to Free Press, Free Speech, and More

“…Proposals have been made in JMCQ for deciding First Amendment cases primarily in terms of government action rather than content, communication modes, or speaker identities (Walden, 1992); and for understanding government speech only in terms of speech germane to the government's core function (Carter, 2005). Examination of the Supreme Court's increasing use of the analytic concept of originalism by many Supreme Court justices showed that it has come to represent more of a blank slate than a consistent form of analysis (Silver, 2011).…”

Mass Communication Law and Policy Research and the Values of Free Expression

“…In the period 2003-2015, five articles used a doctrinal approach and touched on theory or values of freedom of expression without significant innovation or extension of First Amendment theory (Bunker & Bolger, 2003;Carter & Clark, 2006;Carter, 2008;Kozlowski, Bullard & Deets, 2009;Silver, 2011). In the same period, five additional law and policy articles adopted a doctrinal approach with little or no explicit theory discussion (Carter, 2005;Bunker, 2010;Kozlowski, 2011;Stewart, 2013;Pritchard, 2013).…”

Constitutionality of check‐off programs: the right not to speak

“…(4) Examine who has ultimate responsibility for the speech (Carter, 2005). This approach was used in the case Sons of Confederate Veterans, Inc. v. Commissioner of Virginia Department of Motor Vehicles.…”