Wednesday, September 15, 2010
Joseph Blocher, Duke Law School, has published Government Viewpoint and Government Speech. Here is the abstract.
Government speech creates a paradox at the heart of the First Amendment. In order to satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids – viewpoint discrimination against private speech. This is both a theoretical puzzle and an increasingly important practical problem. In cases like Pleasant Grove City v. Summum, the City’s disagreement with a private message was the heart of the successful government speech claim. Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another? This Article explores that question and why it matters, and suggests ways to reconcile these apparently incompatible principles.
Download the paper from SSRN at the link.