Friday, April 8, 2011
Sheldon H. Nahmod, Chicago-Kent College of Law, Institute for Law and the Humanities, has published Justice Souter on Government Speech at 2010 Brigham Young University Law Review 2097. Here is the abstract.
Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan was handed down in 1991, and the most recent case, Pleasant Grove City v. Summum, was handed down in 2009.
This Article is modest in scope and primarily descriptive. I propose to address each of the nine Supreme Court decisions in which government speech is discussed either by the Court or by Justice Souter, with an emphasis on Justice Souter’s often differing and cautionary observations about the doctrine. I do not engage here at a normative level with the government speech doctrine, even though I am worried about the Court’s increasing use of the doctrine to avoid difficult First Amendment issues.
Download the article from SSRN at the link.