The First Amendment of the Constitution prohibits the government from passing any law that limits the freedom of private speech. However, in order to effectively govern, the state must communicate its policies and messages in ways that may not leave room for competing views. Since the early 1990s, the Supreme Court has articulated and developed the doctrine of government speech: when the government speaks, it is exempt from the First Amendment. The doctrine's use and expansion has its detractors. Many are worried that government speech should only be protected when it would be clear to a reasonable listener that the government is indeed the speaker. Otherwise, government speech may be used to manipulate the marketplace of ideas, either by placing a thumb on the scale of a favored viewpoint or silencing an unpopular one.
In Walker v. Texas Division, Sons of Confederate Veterans, the Supreme Court held that a state license plate scheme where private individuals submitted designs to be printed on specialty license plates was government speech, so denial of certain designs based on their content did not violate the Constitution. The Court applied a three-part test that has been inconsistently applied in lower courts, setting the stage for an expansion of government speech with real consequences.
I argue in this Comment that the time to abandon the Walker test is now. The Court should adopt a test that requires the government to show both a purpose and an effect: that the government intends the speech at issue to be its own and that a reasonable observer would attribute the speech to the government. Such a test is logical in government speech cases and would do much to limit the doctrine's spread
A Purpose-and-Effect Test to Limit the Expansion of the Government Speech Doctrine,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol90/iss4/8