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Law Review: Reining in the Government-Speech Doctrine Through a New and Restrictive Approach

By Alliance Alert

When Leviathan Speaks: Reining in the Government-Speech Doctrine Through a New and Restrictive Approach Carl G. DeNigris, 60 Am. U. L. Rev. 133 (2010) "This Comment will argue that current government-speech tests lead to inconsistent results, do not sufficiently focus on the concerns that led to the creation of the government-speech doctrine and, most importantly, do not ensure political accountability and provide adequate safeguards for private speech rights. It will propose that the Supreme Court refine its government-speech doctrine by establishing a reasonable-observer test similar to the endorsement test used in Establishment Clause jurisprudence and identical to the test used by Justice Souter in his recent concurrence in Pleasant Grove City v. Summum. It will further propose that courts guard against inappropriate use of the government-speech defense by assessing certain factors before permitting the government to use the defense. Part I will examine the history of the government-speech doctrine as it arose through key Supreme Court cases and how it has been applied by the circuit courts in the specialty license plate cases. Part II will analyze the current tests used to determine whether certain contested speech is governmental or private and the effectiveness and consistency of these tests. After showing that these current tests lead to inconsistent results and unnecessarily infringe on private speech rights, Part III will propose a stricter and more focused reasonable-observer test that will better ensure political accountability. Furthermore, Part III concludes that inquiries into both the interests involved and whether there are less intrusive means to protect governmental interests are necessary to protect First Amendment speech rights from abuse flowing from the government-speech defense."

Full post as published by Constitutionally Correct on November 01, 2010 (boomark / email).