20402!infringements. It will recommend that the Supreme Court amend the government speechdoctrine; first, by instituting a...
20403!For instance, in Rust v. Sullivan, the Court upheld regulations that expresslyconditioned receipt of federal funds o...
20404!Attorneys were restricted to arguments seeking welfare benefits on behalf of clients.They were prevented from challe...
20405!3. LONGSTANDING CONCERNSThe unconstitutional conditions doctrine has a longstanding incompatibility withGovernment S...
20406!Government Speech has an important role in First Amendment jurisprudence.Indeed, the government must be able to expr...
20407!The reasonable observer inquiry of this test arises out of Establishment Clausejurisprudencexlivand a central ration...
20408!constitutionality because the electoral process could rightly choose whether or not to re-elect an official based on...
20409!regulations are not narrowly tailored if they impede a substantial amount of speech thatdoes not further the governm...
204010!doctrine’s gratuitous growth have escalated concerns, especially with selectivelygovernmental funded speech. Under ...
204011!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!iErwin Chemerinsky, Constitutional Law: Principles and Pol...
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Honor code violation part 2

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  2. 2. 20401!GOVERNMENT SPEECH AND UNCONSTITUTIONAL CONDITIONS—WHYREFINING GOVERNMENT SPEECH IS NECESSARY TO RESOLVE THESECONTRADICTORY DOCTRINES1. INTRODUCTIONFirst Amendment jurisprudence developed in reaction to suppression of speechthat existed in English society.iAlthough speech is arguably our most importantfundamental right, the Court must make value choices as to “what speech is protected,under what circumstances, and when and how the government may regulate.”iiThere is astrong presumption against prior restrictions of speech, and while there are variancesbased on location, the government may place reasonable restrictions on speech, providedthat these restrictions are content-neutral.iiiMoreover, the unconstitutional conditionsdoctrine forbids conditioning governmental funding on an individual’s relinquishment ofa First Amendment right of protected speech.ivIn Perry v. Sindermann,vthe Court stated,“if the government could deny a benefit to a person because of his constitutionallyprotected speech or associations, his exercise of those freedoms would in effect bepenalized and inhibited.’”viHowever, the Court has essentially allowed governmentregulation of private speech under the auspices of the government speech doctrine.Further troubling, government speech covers government-funded speech and preventsFirst Amendment speech challenges when the government is the speaker.viiThis article argues that the government speech and unconstitutional conditionsdoctrines are incompatible and that imposing a new standard for government speechcould minimize these inconsistencies and protect against future First Amendment
  3. 3. 20402!infringements. It will recommend that the Supreme Court amend the government speechdoctrine; first, by instituting a reasonable-observer test, and second, by balancing thegovernmental and private interests and then inquiring whether there are less intrusivemeans of protecting the government interest.2. UNCONSTITUTIONAL CONDITIONS AND GOVERNMENT SPEECH—ARE THEYCOMPATIBLE?A. The Unconstitutional Conditions DoctrineThe unconstitutional conditions doctrine developed as a result of legislativediscrimination against foreign corporations.viiiIt operates to protect against governmentalconditioningixof a benefit on the requirement that a person forego a constitutional right.xA corollary is that, “government may not deny a benefit to a person because he exercisesa constitutional right.”xiThis would “allow the government to ‘produce a result which itcould not command directly.’”xiiJustice Holmes argued that benefits were a privilege that organizations do not haveto accept, yet the rights-privilege distinctionxiiiwould invariably lead to allocationalinequality between those who choose to effect their constitutional rights in a mannerfavored by the government and those who do not.xivIt seems anomalous that the SupremeCourt has accepted federal government decisions not to extend tax exemptions tolobbying activities by nonprofit organizations, as constitutionalxvand a requirement thatfederally funded public broadcasters not editorialize on the air unconstitutional.xviFurthermore, the application of unconstitutional conditions to cases in this area appearsinconsistent.xvii
  4. 4. 20403!For instance, in Rust v. Sullivan, the Court upheld regulations that expresslyconditioned receipt of federal funds on the requirement that recipients foregoconstitutionally protected content-based speech about abortion counseling andreferrals.xviiiThis would clearly violate the unconstitutional conditions doctrine.However, the Court upheld it under the Government Speech doctrine. !B. The Government Speech DoctrineRust v. Sullivan provides the basis for the Government Speech doctrine, whichstates that the First Amendment does not apply when the government is the speaker.xixInRust, doctors and other healthcare providers who received government funds for family-planning services challenged a federal regulation that explicitly conditioned receipt offederal funds on an agreement to forego engaging in behavior supportive of abortion as amethod of family planning.xxUpholding the legislation, Chief Justice Rehnquist wrote,[The] Government can, without violating the Constitution, selectivelyfund a program to encourage certain activities it believes to be in the publicinterest. In so doing, the Government has not discriminated on the basis ofviewpoint; xxiit has merely chosen to fund one activity to the exclusion ofanother. . . A legislature’s decision not to subsidize the exercise of afundamental right does not infringe the right.xxiiThe Court held that a condition is not unconstitutional when it is confined to the program,leaving the individual free to engage in unlimited speech in her own personal life withtheir own resources.xxiiiLegal Services Corporation v. Velazquez,xxivinvolved facts similar to those inRust.xxvHowever, the Court reached a different conclusion,xxviinvalidating a restrictionon lawyers who received funds from the federal Legal Services Corporation (“LSC”).xxvii
  5. 5. 20404!Attorneys were restricted to arguments seeking welfare benefits on behalf of clients.They were prevented from challenging the validity of welfare statutes and regulationsbecause they receive funding from the State. Differentiating Velazquez from Rust, thecourt said the LSC program “was designed to facilitate private speech, not promote agovernmental message”xxviiiand that it unconstitutionally insulated government enactedlaws from judicial challenge.xxixThis neglected to address the Government Speechquestion presented in Justice Scalia’s dissent—why the government is limited to thesecircumstances when it chooses to put restrictions on how its funds are used.xxxAdding confusion to Rust, the Court’s subsequent decision in Rosenberg v. Rectorof the University of Virginia found the state’s refusal to provide funds to a magazinepublished by a Christian student group violated the First Amendment.xxxiRosenberg andRust both involved a government choice to fund only some speech based on viewpoint.However, Rosenberg is distinguished as encouraging private speech; “viewpoint-basedrestrictions are [not] proper when the University does not itself speak or subsidizetransmittal of a message it favors but instead expends funds to encourage diversity ofviews from private speakers.”xxxiiThe Court attempts to distinguish between whether the government is relying onexisting private speakers or is creating a program to encourage private speech. So, thequestion is—can the government condition funds on the content of speech? The actualanswer appears to be no if the speech has religious contentxxxiiior bars judicial regulationof Congressional enactments,xxxivand yes when the speech is abortion counseling.xxxv
  6. 6. 20405!3. LONGSTANDING CONCERNSThe unconstitutional conditions doctrine has a longstanding incompatibility withGovernment Speech and has led some to advocate for its eradication, contending thatpure constitutional analyses offer the same protections.xxxviThe unconstitutionalconditions doctrine provides an incompetent and frequently disingenuous standard forevaluating government funding of speech and fails to capture significant first amendmentconcerns. It appears that if the Court wishes to strike down a condition, it merelydeclares an unconstitutional condition, if it wishes to uphold a condition, it declares thatthe government is making a permissible choice to subsidize some activities and not othersunder the guise of government speech. Government Speech allows the Court to excuseFirst Amendment violations that have gone unrestrained by unconstitutional conditions.Furthermore, the unconstitutional conditions doctrine fails to address that listeners’ FirstAmendment freedomsxxxviiare affected when government selectively funds speech.xxxviiiInsufficient restrictions have led to concerns of audience indoctrination and governmentaldomination of the marketplace of ideas.xxxixIf applied correctly, the unconstitutional conditions doctrine would give theultimatum to government funded private speech to “make it neutral, or it’s unprotected.”Unfortunately, the government speech doctrine evades this application and places anunconstitutional condition on private speech in the government arena. Because of thisglaring inconsistency, government speech and unconstitutional conditions areirreconcilable.
  7. 7. 20406!Government Speech has an important role in First Amendment jurisprudence.Indeed, the government must be able to express itself freely to properly function andgovernment funded speech allows for more inclusive public debate.xlHowever, as thegovernment speech doctrine expands, the lack of a defined test has endangered freedomof speech. These doctrines must be refined to establish a more protective standard thatensures proper limits on government funding power to condition speech.xliBecause oflimited protections afforded under unconstitutional conditions and growing predominanceof government speech, a new standard analyzing government speech must beestablished.xlii4. ALIGNING UNCONSTITUTIONAL CONDITIONS AND GOVERNMENT SPEECH: A NEWGOVERNMENT SPEECH STANDARDLongstanding concerns stemming from blatant inconsistencies betweengovernment speech and unconstitutional conditions can be remedied through a morestringent standard of government speech. This would best be achieved through a three-factor test that considers: (1) whether a reasonable observer is likely to view the speechas the government speaking. If government speech is established, the focus turns onwhether use of government speech is absolutely necessary by asking (2) whether thegovernmental speech interest compared to the private speech interest that may behampered is substantial, and (3) if there is a less intrusive means to protect thegovernment’s speech interests. Using this evaluation, the government speech defense isvalidated so long as it is reasonably credited to the government, the government interestis significant, and no less invasive means is possible.xliii
  8. 8. 20407!The reasonable observer inquiry of this test arises out of Establishment Clausejurisprudencexlivand a central rationale behind the government speech doctrine that thegovernment be held accountable for the message it conveys.xlvExpanding the rationale inSummum,xlvia reasonable observer must be able to attribute speech to the government forit to fall within government speech.xlviiWhere Souter advocates for a “reasonable andfully informed observer,” a “reasonable” observer approach that is content specific andprecludes information that is not readily available to the public is more practical andwould better address government accountability.xlviiiThis is consistent with many areas ofthe law.xlixEstablishing a reasonable observer standard is especially pertinent because thepersuasiveness of the message is dependent upon who it is perceived to be coming from.lSubject to the public attitude toward the government, intentionally masking themessage’s source has shown to improve its effectiveness, so long as the socialmanipulation is undetected.liIn light of this, tying governmental messages to authoritiesthat might be perceived as more independent, such as scientists or doctors, would allowthe government to influence the message’s function.liiTherefore, mandating thatcommunications be reasonably attributable to the government is essential. It wouldeliminate the governmental ability to obscure its identity as a message’s source andmanipulate public opinion, as well as lessen the coercion concerns of indoctrination.liiiFinally, requiring a reasonable observer be able to identify a government messagewould encourage the constitutional commitment to political accountability.livAdvocatedby Justice Souter in Johann, transparency would bring government speech back into
  9. 9. 20408!constitutionality because the electoral process could rightly choose whether or not to re-elect an official based on their opinions.lvThis is central to the democratic process.Stemming from Justice Breyer’s opinion in Summum, the second part of thisanalysis asks whether there is a substantiallvigovernment speech interest that outweighsthe private speech rights.lviiHistorical regulation of private speech has demandedexceptional justificationlviiiand this inquiry is no different—advising an objectivedetermination that takes into account a host of relevant factors, including whether thereare alternative and reasonable means of expression for the private parties whose speechinterests are involved.lixPointing to the public forum doctrine and academic freedom cases, Rust deniedgovernment carte blanche to control the content of subsidized expression in publicforums, public universities, and subsidized press. lxShielding content neutrality in theseplaces is imperative to a democratic society and to safeguard indoctrination.lxiBalancingstate and private interests under part two of this proposed test would point to formidableprivate speech burdens on these fundamental arenas, and defend against governmentimposition.lxiiGovernment speech burdens on subsidized art and counseling—arenaswhich are argued to be equally susceptible to indoctrination—should similarly beestopped.lxiiiMoreover, further concerns are quelled under reasonable observer andsubsequent least intrusive means scrutiny.The final query under this suggested standard seeks to establish that use ofgovernment speech is absolutely necessary by requiring the least restrictive, reasonablyfeasible means of ensuring proper speaker recognition of a message.lxivPrivate speech
  10. 10. 20409!regulations are not narrowly tailored if they impede a substantial amount of speech thatdoes not further the government interest.lxvThe theory is that if the government can caterto the interest while afflicting less speech, it should. The Supreme Court has consistentlycited this standard, holding “even though the governmental purpose be legitimate andsubstantial, that purpose cannot be pursued by means that broadly stifle fundamentalpersonal liberties when the end can be more narrowly achieved.”lxviBy ensuring that private speech interferences are as reasonable as possible, thisultimate restriction on constitutional encroachment meets common sense ideals of ademocracy. Moreover, a more dignified government speech defense supports accuratereception of important government opinions. If a less intrusive, but still reasonable meansexists to achieve the government’s expressive objective, a court should bar thegovernment speech defense.lxviiIn addition to taking big steps toward rectifyinglongstanding concerns with unconstitutional conditions, this government speech standardwould give much needed consistency to lower court decisions on government fundedspeech.lxviiiFurther, requiring government speech to meet this standard would forcegovernment to assess speech from the get-go and offer more protection for privatespeech—thereby preventing the government from controlling private expressions bysimply claiming speech was governmental in nature or justifying First Amendmentinfringements after the fact.lxix5. CONCLUSIONWhen the government is the speaker, the government speech doctrine is necessaryfor it to put forth its own message absent viewpoint neutrality. Misapplication and the
  11. 11. 204010!doctrine’s gratuitous growth have escalated concerns, especially with selectivelygovernmental funded speech. Under unconstitutional conditions, the government may notcondition a benefit on an individual’s sacrifice of constitutional rights. However, theCourt’s application of government speech in recent case law has wholly circumventedunconstitutional conditions given the government speech immunity from free speechclause challenge.lxxIn light of these inconsistencies, and the lack of cogent boundaries onthe government speech doctrine, a new standard must be set to determine when thegovernment is speaking so that these doctrines may be reconciled and First Amendmentharms averted.The Court should limit application of the government speech defense to a three-part test, first establishing that a reasonable observer is likely to see a particular messageas governmental. Next, the Court should go through a balance of interests and a leastintrusive means analysis. This approach would limit the application of governmentspeech to discourse that is equated as governmental and to situations when it is absolutelynecessary to protect the government’s interest. Not only would this standard diminish theCourt’s haphazard application of government speech, it would rectify listener based FirstAmendment concerns of indoctrination, increase governmental accountability through theelectoral process, and provide a uniform, predictable standard for courts to follow. Onlyclearly defined government speech would be tolerated, providing an unambiguous linebetween when the government is permissibly speaking and when unconstitutionalconditions are being imposed on funds conferred to private individuals.
  12. 12. 204011!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!iErwin Chemerinsky, Constitutional Law: Principles and Policies, 950-51 (4th ed. 2011)(“‘the First Amendment was . . . intended to wipe out the common law of sedition, andmake further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America.’”) (internal citationomitted); See Patterson v. Colorado, 205 U.S. 454, 462 (1907) (“the main purpose ofsuch constitutional provisions is ‘to prevent all such previous restraints upon publicationsas had been practiced by other governments’ and they do not prevent the subsequentpunishment of such as may be deemed contrary to the public welfare.”).English law prohibited publication without a government-granted license andspeech through the law of seditious libel, making statements that were critical of thegovernment a crime. See Chemerinsky, supra, at 951 (“‘If people should not be called toaccount for possessing the people with an ill opinion of the government, no governmentcan subsist. For it is very necessary for all governments that the people should have agood opinion of it.’ . . . if anything, true speech was perceived as worse because it mightdo more to damage the image and reputation of the government.”) (internal citationomitted).iiChemerinsky, supra note 1, at 953.iiiSee Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); see alsoMembers of City Council v. Taxpayers for Vincent, 446 U.S. 789, 804 (1984) (“[T]heFirst Amendment forbids the government to regulate speech in ways that favor someviewpoints or ideas at the expense of others.”) (citation omitted).iv!Natl Endowment for the Arts v. Finley, 524 U.S. 569, 609 (1998).!!v!Perry v. Sindermann, 408 U.S. 593 (1972).!viId. at 597.viiJohanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005) (“[T]he Government’sown speech . . . is exempt from First Amendment scrutiny.”).viiiWheeling Steel Corp. v. Glander, 337 U.S. 562, 570 (1949); cf. Watson v. EmployersLiab. Assur. Corp., 348 U.S. 66, 75 (1954) (“The State may arbitrarily exclude them ormay license them upon any terms it sees fit, apart from exacting surrender of rightsderived from the Constitution of the United States.”).ixA condition is the behavior that is demanded by the government before granting thebenefit, which may be a government subsidy of any type—including goods and services,
  13. 13. 204012!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!privilege of using government facilities, tax exemptions, or cash. Kathleen M. Sullivan,Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1439 (1989).xSee Power Mfg. Co. v. Saunders, 274 U.S. 490 (1927) (expanding the unconstitutionalconditions doctrine from protection against interference with specific federal rights togeneral conditions that violate the Due Process and Equal Protection Clauses of theFourteenth Amendment); Terral v. Burke Const. Co., 257 U.S. 529 (1922) (firstamalgamation of unconstitutional conditions, relating to a state statute that tried to limitan international corporations right to federal courts in order to be licensed for businesswithin that state); 8 Witkin, Summary 10th (2012 supp.) Const Law, § 812, p. 17; 8Witkin, Summary 10th (2005) Const Law, §813, p. 227 (restating the doctrine as, “Thereare rights of constitutional statute whose exercise a State may not condition by theexaction of a price. Engaging in interstate commerce is one. . . . Resort to the federalcourts in diversity of citizenship cases is another. . . . Assertion of a First Amendmentfreedom is still another. . . . The imposition of a burden on the exercise of a Twenty-Fourth Amendment right is also banned. . . . We now hold the protection of the individualunder the Fourteenth Amendment prohibits use in subsequent criminal proceedings ofconfessions obtained under threat of removal from office, and that it extends to all,whether they are policemen or other members of our body politic.”).xiRegan v. Taxation with Representation of Wash., 461 U.S. 540, 597 (1983) (quotingPerry v. Sindermann, 408 U.S. 593, 597 (1972)); see also Speiser v. Randall, 357 U.S.513, 518-19 (1958) (“[t]o deny a [tax] exemption to claimants who engage in certainforms of speech is in effect to penalize them for this speech [and] will have the effect ofcoercing the claimants to refrain from the proscribed speech”).xiiSee Sindermann, supra note 4.xiiiThe rights-privilege distinction says, “That you don’t want the condition, then don’taccept the subsidy.” see William W. Van Alstyne, The Demise of the Right-PrivilegeDistinction in Constitutional Law, 81 HARV. L. REV. 1439, 1442 (1968) (“While theconcept of ‘privilege’ underlying Holmes’ epigram remains nominally intact, itsimplications for positive law have been gradually eroded.”). But see Rodney A. Smolla,The Reemergence of the Right-Privilege Distinction in Constitutional Law: The Price ofProtesting Too Much, 35 STAN. L. REV. 69, 69 (1982) (“Like the prematurely rumoreddeath of Mark Twain. . . reports of the demise of the [right-]privilege doctrine have beengreatly exaggerated. Since the nineteenth century, the doctrine has shown an uncannyability to reconstitute itself in spite of the best efforts of scholars and jurists to bury it.”).xivGary Finerman, Unconstitutional Conditions: The Crossroads of Substantive Rightsand Equal Protections, 43 STAN. L. REV. 1369, 1372 (1991); cf. Sullivan, supra note 9.
  14. 14. 204013!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!Sullivan illustrates how unconstitutional conditions might be excited or evaded:Not only must the condition put the potential beneficiary to a choice, but the forkin the road must lie ahead rather than behind. Thus, the condition might beimposed in the form ‘recipients of this benefit may not do x’ or ‘must do y’ so longas the benefit lasts, where x or y are normally matters of the recipientsconstitutionally protected choice. Or the condition might be imposed as aprerequisite for the benefit in the form ‘this benefit will be granted only torecipients who will do x’ or ‘will not do y.’ The retrospective form, ‘this benefitwill be denied to applicants who have done x,’ might violate the ban on bills ofattainder, but would not present an unconstitutional conditions problem.Sullivan, supra note 9.xv!See!Regan, supra note 11, at 597.!!xvi!FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984); cf. Keyishian v. Bd. ofRegents of Univ. of State of N.Y., 385 U.S. 589, 605-06 (1967) (stating, “[i]t is too latein the day to doubt that the liberty of . . . expression may be infringed by the denial of orplacing of conditions upon a benefit or privilege.”) (internal citation omitted).!!xviiCompare Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (invalidating arestriction on the activities of lawyers receiving funds from the federal Legal ServicesCorporation by limiting what they could argue) and FCC, supra note 16 (declaringunconstitutional a federal statute that prohibited any noncommercial educationalbroadcasting station which received a grant from the Corporation for Public Broadcastingfrom engaging in editorializing) with Rust v. Sullivan, 500 U.S. 173, 180 (1991)(upholding regulations that prohibited recipients of federal money from “engaging inactivities that ‘encourage, promote, or advocate abortion as a method of familyplanning’”) and Regan, supra note 11, at 546 (upholding a provision of the federal taxlaw that conditioned tax-exempt status on the requirement that the organization notparticipate in lobbying or partisan political activities with the justification that “Congresshas simply chosen not to pay for TWR’s lobbying”).xviiiRust, supra note 17, at 181.xixNelda H. Cambron McCabe, Ph.D., When Government Speaks: An Examination of theEvolving Government Speech Doctrine, 274 ED. LAW REP. 753, 756 (2012) (“Althoughthe term ‘government speech’ was not used in Rust subsequent courts point to the case asestablishing the doctrine.”).xxRust, supra note 17, at 180 (prohibiting the medical professionals from promoting oradvocating abortion, referring individuals to an abortion provider, or merely mentioningabortion as an option).
  15. 15. 204014!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!xxiId. (citing Ward v. Rock Against Racism, 491 U.S. 781 (1989)); see also id. at 217(Blackmun J., dissenting) (arguing that the government refusing to fund family-planningschemes that support abortion because they support abortion, plainly targets a particularviewpoint, undeniably allowing constitutional rights to be circumvented in favor offunding).xxiiId. at 193.xxiiiId. at 197. Conversely, a condition is unconstitutional where “the government hasplaced a condition on the recipient of the subsidy rather than on a particular program orservice, thus effectively prohibiting the recipient from engaging in the protected conductoutside the scope of the federally funded program.” Id.xxiv!See Velazquez, supra note 17.!xxv!Rust involved the refusal to subsidize the normal work of doctors, Velazquez, thenormal work of attorneys.!!!xxviSee Velazquez, supra note 17, at 558-59 (Scalia, J., dissenting) (arguing that thestatutory scheme in Velazquez was “indistinguishable in all relevant aspects from” thescheme upheld in Rust); see also, Harvard Law Review Association, The CuriousRelationship Between the Compelled Speech and Government Speech Doctrines, 117HARV. L. REV. 2411, 2430 (2004) (“In soft focus, Velazquez appears indistinguishablefrom Rust . . . .”).xxviiVelazquez, supra note 17.xxviiiId. at 541-42 (holding that “viewpoint-based funding decisions can be sustained ininstances in which the government is itself the speaker, or instances, like Rust, in whichthe government used private speakers to transmit information pertaining to its ownprogram.”).xxixId. at 548.xxxId. at 550 (Scalia, J., dissenting).xxxiRosenberg v. Rector of the Univ. of Va., 515 U.S. 819 (1995).xxxiiId. at 834 (contrasting Rust, “us[ing] private speakers to transmit specific informationpertaining to its own program. We recognized that when the government appropriates
  16. 16. 204015!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!public funds to promote a particular policy of its own it is entitled to say what itwishes.”).xxxiiiId. at 819.xxxivVelazquez, supra note 17.xxxvRust, supra note 17.xxxviSee Cass R. Sunstein, Why The Unconstitutional Conditions Doctrine is anAnachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L.REV. 593, 621 (1990) (“In a mature legal system, one that has adapted to the functionsand goals of the modern regulatory state, we will not need, and therefore we will nothave, an unconstitutional conditions doctrine”); Cass R. Sunstein, Is There anUnconstitutional Conditions Doctrine?, 26 SAN DIEGO L.REV. 337, 338 (1989)(“Whether a condition is permissible is a function of the particular constitutionalprovision at issue, on that score, anything so general as an unconstitutional conditionsdoctrine is likely to be unhelpful.”). But see Sullivan, supra note 9, at 1419 (1989)(arguing that the doctrine serves an important function by “identify[ing] a characteristictechnique by which government appears not to, but in fact does burden. . . liberties”).xxxviiSee Keyishian, supra note 16, at 603 (finding that listeners have a right thatshouldn’t be skewed by government funded speech).xxxviiiDavid Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality inGovernment-Funded Speech, 67 N.Y.U. L. REV. 675, 702 (1992).xxxixId.; see also Mark Yudof, When Government Speaks: Politics, Law, and GovernmentExpression in America, 323 (Berkeley and Los Angeles: University of California Press,1983) (“[L]aws and practices that permit massive government communications activitiesmay as effectively silence private speakers as a direct regime of censorship.”). Yudolfcautions that the government may “dominate. . . the minds of individuals, suppressingtheir ability to think critically about government leaders and policies.” After finding thatthat research shows that governments were sometimes persuasive, and sometimes less so,he nonetheless bases his theory on the “intuitive appeal” of the idea that governmentsmay manipulate and indoctrinate audiences. See Yudof supra.xlCole, supra note 38, at 675 (“Noting the paradoxical nature of government-fundedspeech—it creates possibilities for more inclusive public debate and allows thegovernment to make its viewpoint known to its constitutients even as it provides anopening for the government to dominate the marketplace of ideas—Professor Cole
  17. 17. 204016!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!contends that we need a more nuanced analytical framework to sort out the competingvalues.”).xliThis would have the added benefit of allowing lower courts to apply governmentspeech regulations more consistently. See Roach v. Stouffer, 560 F.3d 860, 867 (8th Cir.2009) (acknowledging that the “key question” in government speech analysis is whethera reasonable person would, under all the circumstances, see the speech as private orgovernmental); Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 965 (9th Cir. 2008) (usingthe four-factor test to conclude that the “Choose Life” plates at issue were more towardprivate speech); Choose Life Ill., Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008)(finding exclusion of the entire subject of abortion to be a permissible “content based butviewpoint neutral” restriction); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 375-76 (6thCir. 2006) (adopting a two-pronged government speech test that looked at whether thegovernment set the overall message communicated and then whether the governmentapproved every word that was disseminated); Sons of Confederate Veterans, Inc. v.Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002) (establishing afour-factor test—(1) [T]he central “purpose” of the program in which the speech occurs;(2) the degree of “editorial control” exercised by the government or private entities overthe content of the speech; (3) the identity of the “literal speaker”; and (4) whether thegovernment or the private entity bears the “ultimate responsibility” for the content of thespeech—determining that license plates in question constituted private speech and thattheir prohibition was, therefore, unconstitutional viewpoint discrimination).xliiSteven Shiffrin, Government Speech, 27 UCLA L. REV. 565 (1980) (arguing that theremust be limits on structure and content of government speech within a constitutionalscheme); Mark G. Yudof, When Governments Speak: Toward a Theory of GovernmentExpression and the First Amendment, 57 TEX. L. REV. 863 (1979) (analyzing governmentspeech and suggesting curbing excessive government speech by limiting it to thatauthorized by the legislature).xliiiCarl G. DeNigris, When Leviathan Speaks: Reigning in the Government-SpeechDoctrine Through a New and Restrictive Approach, 60 AM. U. L. REV. 133, 160 (2010)(“Under this inquiry, courts should permit a government-speech defense if: the speech isreasonably attributable to the government; the government’s interest is substantial; andthere is no less intrusive means of protecting this interest.”).xlivLynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J.) (“The EstablishmentClause prohibits government from making adherence to a religion relevant in any way toa persons standing in the political community. Government can run afoul of thatprohibition...[by] endorsement or disapproval of religion. Endorsement sends a messageto nonadherents that they are outsiders, not full members of the political community, andan accompanying message to adherents that they are insiders, favored members of the
  18. 18. 204017!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!political community. The proper inquiry under the purpose prong of Lemon, I submit, iswhether the government intends to convey a message of endorsement or disapproval ofreligion”).xlvHelen Norton, Constraining Public Employee Speech: Government’s Control of ItsWorkers’ Speech to Protect Its Own Expression, 59 DUKE L. J. 1, 22 (2009) (“Politicalaccountability, rather than the Free Speech Clause, provides the recourse for thoseunhappy with their government’s expressive choices.”).xlviPleasant Grove City, Utah v. Summum, 555 U.S. 460, 485 (2009) (Souter, J.,concurring).xlviiGia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L. J.983, 1031 (2005) (arguing that the government should not be able to assert that defenseunless it can show, at a minimum, that the reasonable recipient of the speech understandsthat speech to originate from the government).xlviiiSee Choose Life Ill., supra note 41, at 863 (finding that the Fourth and Ninth Circuitmulti-factor tests can be “distilled” by focusing on whether, under all the circumstances,a reasonable person would consider the speaker to be the government or a private entity).xlixCf. Harris v. Forklift Sys. Inc., 510 U.S. 17, 20-21 (1993) (assessing hostile workenvironment claims based on a reasonable person standard); United States v. Mendenhall,446 U.S. 544, 554 (1980) (holding that a person is “seized” for Fourth Amendmentpurposes when a reasonable person in the same situation would have believed she wasnot free to leave); State v. Stewart, 763 P.2d 572, 577 (Kan. 1988) (“A person is justifiedin using force against an aggressor when. . . he or she reasonably believes such force tobe necessary.”).lHelen Norton, The Measure of Government Speech: Identifying Expression’s Source, 88B.U. L. REV. 587, 595 (2008).liSee Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 1017(1995) (“attempts to manipulate social meaning are not seen as favorable and are lesseffective than communication that does not appear to come from some other influence.”).liiLee, supra note 47, at 1009.liiiId. at 985-89; Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 786(1995) (Souter, J., dissenting) (that unattended displays on government property enhancethe possibility of misattribution and that an unattended display’s location is a significantcue in determining its source).
  19. 19. 204018!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!Concentrating on government speakers who seek to mold public opinion byascribing government notions to private actors seeming less self-interested or otherwisemore convincing, Lee’s main concern is governmental manipulation of the public’sattitudes towards its views by purposefully obfuscating a government message’s source.For example, a video news segment produced by the government and distributed to andcirculated by the media absent governmental accreditation. Lee highlights that thisgovernmental manipulation is dangerous since, “non-transparent communicationsundermine mechanisms of political accountability, both by precluding individuals fromknowing when, and to what extent, the government is responsible for specific speech andby enabling the government to skew individuals perceptions of the actual support for itsideas.” Lee, supra note 47, at 985-89.livSee Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000)(“When the government speaks, for instance to promote its own policies or to advance aparticular idea, it is, in the end, accountable to the electorate and the political process forits advocacy. If the citizenry objects, newly elected officials later could espouse somedifferent or contrary position.”); see also Finley, supra note 4, at 598 (Scalia, J.,concurring).lvJohanns, supra note 7, at 570 (Souter, J., dissenting).lviSullivan, supra note 9 (saying that government speech needs especially strongjustification in order to compel the defense).lviiSummum, supra note 46, at 485 (Souter, J., concurring). (“that government speechshould not be a rigid category, but rather, a “rule of thumb” where it’s asked “whether agovernment action burdens speech disproportionately in light of the action’s tendency tofurther a legitimate government objective”).lviiiSee R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding application of hatespeech ordinance unconstitutional); Simon & Schuster v. N.Y. State Crime Victims Bd.,502 U.S. 105 (1991) (holding New York’s “Son of Sam” law unconstitutional); UnitedStates v. Eichman, 496 U.S. 310 (1990) (invalidating federal Flag Protection Act); Texasv. Johnson, 491 U.S. 397, 420 (1989) (holding Texas flag desecration statuteunconstitutional); Boos v. Barry, 485 U.S. 312, 321 (1988) (holding that law thatprohibited displaying of political messages within 500 feet of building occupied by aforeign government is content-based restriction on political speech and unconstitutional).lixSee Ward, supra note 21, at 791 (1989) (“[Government] restrictions on the time, place,or manner of protected speech [must] leave open ample alternative channels forcommunication of the information.”).
  20. 20. 204019!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!lxRust, supra note 17, at 200.lxiCole supra note 38.lxiiId. at 691 (citing United States v. Kokinda, 497 U.S. 720 (1990) (once the government“has expressly dedicated [a particular forum] to speech activity,” it cannot excludespeakers based upon the context of their speech); Healy v. James, 408 U.S. 169, 187-88(1972) (public university cannot deny support to student group because it disagrees withits point of view); Sweezy v. New Hampshire, 354 U.S. 234, 261-62 (1957) (Frankfurter,J., concurring) (government intrusion into intellectual life of state university must havecompelling reason)); See Patterson, note 1.lxiiiCole, supra note 38, at 739 (saying a counselee is a particularly vulnerable captiveaudience member based on a trust relationship with the medical counselor and anythingbut neutrality in this setting would question the ethical fiduciary relationship betweendoctor and patient). Additionally, Cole sites Congress’ creation of the NationalEndowment for the Arts (NEA) as supportive of argument that artistic expression iscentral to the cultural and political vitality of democratic society. Id.lxivSee United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000) (“If a statuteregulates speech based on its content, it must be narrowly tailored to promote acompelling Government interest. If a less restrictive alternative would serve theGovernment’s purpose, the legislature must use that alternative.”); Roe v. Wade, 410U.S. 113, 155 (1973) (“Where certain ‘fundamental rights’ are involved, the Court hasheld that regulation limiting these rights may be justified only be a ‘compelling stateinterest,’ and that legislative enactments must be narrowly drawn to express only thelegitimate state interests at stake.”).lxvSee Simon & Schuster, supra note 52, at 120-21; FEC v. Nat’l Conservative PoliticalAction Comm., 470 U.S. 480, 500-01 (1985); First Natl Bank of Boston v. Bellotti, 435U.S. 765, 794 (1978).lxviWooley v. Maynard, 430 U.S. 705, 716 (1977) (citing Shelton v. Tucker, 364 U.S.479, 488 (1960)).lxviiSee Randall P. Bezanson & William G. Buss, The Many Faces of GovernmentSpeech, 86 IOWA L. REC. 1377, 1485 (2001) (“[B]ecause the government’s capacity forcommunicating its position is extensive, it is better to rely on the government’s access tothe marketplace of ideas than to permit the government to curtail the marketplace.”);Helen Norton, Not for Attribution: Government’s Interest in Protecting the Integrity of ItsOwn Expression, 37 U.C. DAVIS L. REV. 1317, 1339 (2004) (discussing factors to
  21. 21. 204020!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!consider when determining when the government may protect its own expression andarguing that “[i]f government can adequately protect the integrity of its expression bydisclaiming private speech, then it should do so”).lxviiiDeNigris supra note 43, at 145 (highlighting the various and divergent governmentspeech standards adopted by Circuits).lxixNorton, supra note 45, at 27 (advocating the use of the government-speech defenseonly when it can be established that the government claimed the speech as its own andthat the speech was understood to be the government’s at the time of its release).lxxSee Summum, supra note 46, at 467 (“[t]he Free Speech Clause restricts governmentregulation of private speech; it does not regulate government speech”).