Viewpoint Neutrality and Government Speech

Joseph Blocher*
Abstract: Government speech creates a paradox at the heart of the First Amendment. 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, Utah v. Summum, the city’s disagreement with a private message was the heart of its successful government speech argument. 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.

Introduction It is a bedrock principle of the First Amendment that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”1 And yet, “the Government’s own speech . . . is exempt from First Amendment scrutiny,” even when it has the effect of limiting private speech.2 The upshot of these apparently con* © 2011, Joseph Blocher, Assistant Professor, Duke Law School. Special thanks to Danielle Citron, Caroline Corbin, John Inazu, and Helen Norton for valuable feedback, to Thomas Dominic for exceptionally able research assistance, and to the members of the Boston College Law Review for truly diligent editing. 1 Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972); see also U.S. Const. amend. I; Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577 (1991) (Scalia, J., concurring in the judgment) (“Where the government prohibits conduct precisely...