This document discusses the incompatibility between the unconstitutional conditions doctrine and the government speech doctrine in First Amendment jurisprudence. It argues that refining the government speech doctrine is necessary to resolve these contradictions. Specifically, it recommends a new standard for government speech that establishes whether a reasonable observer would view the speech as governmental. If so, it balances the governmental interest against private speech interests and requires the least restrictive means available to protect government interests. This aims to provide consistency and better protect private speech rights limited by expansive applications of government speech.

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GOVERNMENT SPEECH AND UNCONSTITUTIONAL CONDITIONS—WHY
REFINING GOVERNMENT SPEECH IS NECESSARY TO RESOLVE THESE
CONTRADICTORY DOCTRINES
1. INTRODUCTION
First Amendment jurisprudence developed in reaction to suppression of speech
that existed in English society.i
Although speech is arguably our most important
fundamental right, the Court must make value choices as to “what speech is protected,
under what circumstances, and when and how the government may regulate.”ii
There is a
strong presumption against prior restrictions of speech, and while there are variances
based on location, the government may place reasonable restrictions on speech, provided
that these restrictions are content-neutral.iii
Moreover, the unconstitutional conditions
doctrine forbids conditioning governmental funding on an individual’s relinquishment of
a First Amendment right of protected speech.iv
In Perry v. Sindermann,v
the Court stated,
“if the government could deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms would in effect be
penalized and inhibited.’”vi
However, the Court has essentially allowed government
regulation of private speech under the auspices of the government speech doctrine.
Further troubling, government speech covers government-funded speech and prevents
First Amendment speech challenges when the government is the speaker.vii
This article argues that the government speech and unconstitutional conditions
doctrines are incompatible and that imposing a new standard for government speech
could minimize these inconsistencies and protect against future First Amendment

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infringements. It will recommend that the Supreme Court amend the government speech
doctrine; first, by instituting a reasonable-observer test, and second, by balancing the
governmental and private interests and then inquiring whether there are less intrusive
means of protecting the government interest.
2. UNCONSTITUTIONAL CONDITIONS AND GOVERNMENT SPEECH—ARE THEY
COMPATIBLE?
A. The Unconstitutional Conditions Doctrine
The unconstitutional conditions doctrine developed as a result of legislative
discrimination against foreign corporations.viii
It operates to protect against governmental
conditioningix
of a benefit on the requirement that a person forego a constitutional right.x
A corollary is that, “government may not deny a benefit to a person because he exercises
a constitutional right.”xi
This would “allow the government to ‘produce a result which it
could not command directly.’”xii
Justice Holmes argued that benefits were a privilege that organizations do not have
to accept, yet the rights-privilege distinctionxiii
would invariably lead to allocational
inequality between those who choose to effect their constitutional rights in a manner
favored by the government and those who do not.xiv
It seems anomalous that the Supreme
Court has accepted federal government decisions not to extend tax exemptions to
lobbying activities by nonprofit organizations, as constitutionalxv
and a requirement that
federally funded public broadcasters not editorialize on the air unconstitutional.xvi
Furthermore, the application of unconstitutional conditions to cases in this area appears
inconsistent.xvii

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For instance, in Rust v. Sullivan, the Court upheld regulations that expressly
conditioned receipt of federal funds on the requirement that recipients forego
constitutionally protected content-based speech about abortion counseling and
referrals.xviii
This would clearly violate the unconstitutional conditions doctrine.
However, the Court upheld it under the Government Speech doctrine. !
B. The Government Speech Doctrine
Rust v. Sullivan provides the basis for the Government Speech doctrine, which
states that the First Amendment does not apply when the government is the speaker.xix
In
Rust, doctors and other healthcare providers who received government funds for family-
planning services challenged a federal regulation that explicitly conditioned receipt of
federal funds on an agreement to forego engaging in behavior supportive of abortion as a
method of family planning.xx
Upholding the legislation, Chief Justice Rehnquist wrote,
[The] Government can, without violating the Constitution, selectively
fund a program to encourage certain activities it believes to be in the public
interest. In so doing, the Government has not discriminated on the basis of
viewpoint; xxi
it has merely chosen to fund one activity to the exclusion of
another. . . A legislature’s decision not to subsidize the exercise of a
fundamental right does not infringe the right.xxii
The 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 with
their own resources.xxiii
Legal Services Corporation v. Velazquez,xxiv
involved facts similar to those in
Rust.xxv
However, the Court reached a different conclusion,xxvi
invalidating a restriction
on lawyers who received funds from the federal Legal Services Corporation (“LSC”).xxvii

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Attorneys were restricted to arguments seeking welfare benefits on behalf of clients.
They were prevented from challenging the validity of welfare statutes and regulations
because they receive funding from the State. Differentiating Velazquez from Rust, the
court said the LSC program “was designed to facilitate private speech, not promote a
governmental message”xxviii
and that it unconstitutionally insulated government enacted
laws from judicial challenge.xxix
This neglected to address the Government Speech
question presented in Justice Scalia’s dissent—why the government is limited to these
circumstances when it chooses to put restrictions on how its funds are used.xxx
Adding confusion to Rust, the Court’s subsequent decision in Rosenberg v. Rector
of the University of Virginia found the state’s refusal to provide funds to a magazine
published by a Christian student group violated the First Amendment.xxxi
Rosenberg and
Rust both involved a government choice to fund only some speech based on viewpoint.
However, Rosenberg is distinguished as encouraging private speech; “viewpoint-based
restrictions are [not] proper when the University does not itself speak or subsidize
transmittal of a message it favors but instead expends funds to encourage diversity of
views from private speakers.”xxxii
The Court attempts to distinguish between whether the government is relying on
existing private speakers or is creating a program to encourage private speech. So, the
question is—can the government condition funds on the content of speech? The actual
answer appears to be no if the speech has religious contentxxxiii
or bars judicial regulation
of Congressional enactments,xxxiv
and yes when the speech is abortion counseling.xxxv

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3. LONGSTANDING CONCERNS
The unconstitutional conditions doctrine has a longstanding incompatibility with
Government Speech and has led some to advocate for its eradication, contending that
pure constitutional analyses offer the same protections.xxxvi
The unconstitutional
conditions doctrine provides an incompetent and frequently disingenuous standard for
evaluating government funding of speech and fails to capture significant first amendment
concerns. It appears that if the Court wishes to strike down a condition, it merely
declares an unconstitutional condition, if it wishes to uphold a condition, it declares that
the government is making a permissible choice to subsidize some activities and not others
under the guise of government speech. Government Speech allows the Court to excuse
First Amendment violations that have gone unrestrained by unconstitutional conditions.
Furthermore, the unconstitutional conditions doctrine fails to address that listeners’ First
Amendment freedomsxxxvii
are affected when government selectively funds speech.xxxviii
Insufficient restrictions have led to concerns of audience indoctrination and governmental
domination of the marketplace of ideas.xxxix
If applied correctly, the unconstitutional conditions doctrine would give the
ultimatum to government funded private speech to “make it neutral, or it’s unprotected.”
Unfortunately, the government speech doctrine evades this application and places an
unconstitutional condition on private speech in the government arena. Because of this
glaring inconsistency, government speech and unconstitutional conditions are
irreconcilable.

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Government Speech has an important role in First Amendment jurisprudence.
Indeed, the government must be able to express itself freely to properly function and
government funded speech allows for more inclusive public debate.xl
However, as the
government speech doctrine expands, the lack of a defined test has endangered freedom
of speech. These doctrines must be refined to establish a more protective standard that
ensures proper limits on government funding power to condition speech.xli
Because of
limited protections afforded under unconstitutional conditions and growing predominance
of government speech, a new standard analyzing government speech must be
established.xlii
4. ALIGNING UNCONSTITUTIONAL CONDITIONS AND GOVERNMENT SPEECH: A NEW
GOVERNMENT SPEECH STANDARD
Longstanding concerns stemming from blatant inconsistencies between
government speech and unconstitutional conditions can be remedied through a more
stringent 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 speech
as the government speaking. If government speech is established, the focus turns on
whether use of government speech is absolutely necessary by asking (2) whether the
governmental speech interest compared to the private speech interest that may be
hampered is substantial, and (3) if there is a less intrusive means to protect the
government’s speech interests. Using this evaluation, the government speech defense is
validated so long as it is reasonably credited to the government, the government interest
is significant, and no less invasive means is possible.xliii

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The reasonable observer inquiry of this test arises out of Establishment Clause
jurisprudencexliv
and a central rationale behind the government speech doctrine that the
government be held accountable for the message it conveys.xlv
Expanding the rationale in
Summum,xlvi
a reasonable observer must be able to attribute speech to the government for
it to fall within government speech.xlvii
Where Souter advocates for a “reasonable and
fully informed observer,” a “reasonable” observer approach that is content specific and
precludes information that is not readily available to the public is more practical and
would better address government accountability.xlviii
This is consistent with many areas of
the law.xlix
Establishing a reasonable observer standard is especially pertinent because the
persuasiveness of the message is dependent upon who it is perceived to be coming from.l
Subject to the public attitude toward the government, intentionally masking the
message’s source has shown to improve its effectiveness, so long as the social
manipulation is undetected.li
In light of this, tying governmental messages to authorities
that might be perceived as more independent, such as scientists or doctors, would allow
the government to influence the message’s function.lii
Therefore, mandating that
communications be reasonably attributable to the government is essential. It would
eliminate the governmental ability to obscure its identity as a message’s source and
manipulate public opinion, as well as lessen the coercion concerns of indoctrination.liii
Finally, requiring a reasonable observer be able to identify a government message
would encourage the constitutional commitment to political accountability.liv
Advocated
by Justice Souter in Johann, transparency would bring government speech back into

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constitutionality because the electoral process could rightly choose whether or not to re-
elect an official based on their opinions.lv
This is central to the democratic process.
Stemming from Justice Breyer’s opinion in Summum, the second part of this
analysis asks whether there is a substantiallvi
government speech interest that outweighs
the private speech rights.lvii
Historical regulation of private speech has demanded
exceptional justificationlviii
and this inquiry is no different—advising an objective
determination that takes into account a host of relevant factors, including whether there
are alternative and reasonable means of expression for the private parties whose speech
interests are involved.lix
Pointing to the public forum doctrine and academic freedom cases, Rust denied
government carte blanche to control the content of subsidized expression in public
forums, public universities, and subsidized press. lx
Shielding content neutrality in these
places is imperative to a democratic society and to safeguard indoctrination.lxi
Balancing
state and private interests under part two of this proposed test would point to formidable
private speech burdens on these fundamental arenas, and defend against government
imposition.lxii
Government speech burdens on subsidized art and counseling—arenas
which are argued to be equally susceptible to indoctrination—should similarly be
estopped.lxiii
Moreover, further concerns are quelled under reasonable observer and
subsequent least intrusive means scrutiny.
The final query under this suggested standard seeks to establish that use of
government speech is absolutely necessary by requiring the least restrictive, reasonably
feasible means of ensuring proper speaker recognition of a message.lxiv
Private speech

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regulations are not narrowly tailored if they impede a substantial amount of speech that
does not further the government interest.lxv
The theory is that if the government can cater
to the interest while afflicting less speech, it should. The Supreme Court has consistently
cited this standard, holding “even though the governmental purpose be legitimate and
substantial, that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved.”lxvi
By ensuring that private speech interferences are as reasonable as possible, this
ultimate restriction on constitutional encroachment meets common sense ideals of a
democracy. Moreover, a more dignified government speech defense supports accurate
reception of important government opinions. If a less intrusive, but still reasonable means
exists to achieve the government’s expressive objective, a court should bar the
government speech defense.lxvii
In addition to taking big steps toward rectifying
longstanding concerns with unconstitutional conditions, this government speech standard
would give much needed consistency to lower court decisions on government funded
speech.lxviii
Further, requiring government speech to meet this standard would force
government to assess speech from the get-go and offer more protection for private
speech—thereby preventing the government from controlling private expressions by
simply claiming speech was governmental in nature or justifying First Amendment
infringements after the fact.lxix
5. CONCLUSION
When the government is the speaker, the government speech doctrine is necessary
for it to put forth its own message absent viewpoint neutrality. Misapplication and the

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doctrine’s gratuitous growth have escalated concerns, especially with selectively
governmental funded speech. Under unconstitutional conditions, the government may not
condition a benefit on an individual’s sacrifice of constitutional rights. However, the
Court’s application of government speech in recent case law has wholly circumvented
unconstitutional conditions given the government speech immunity from free speech
clause challenge.lxx
In light of these inconsistencies, and the lack of cogent boundaries on
the government speech doctrine, a new standard must be set to determine when the
government is speaking so that these doctrines may be reconciled and First Amendment
harms 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 message
as governmental. Next, the Court should go through a balance of interests and a least
intrusive means analysis. This approach would limit the application of government
speech to discourse that is equated as governmental and to situations when it is absolutely
necessary to protect the government’s interest. Not only would this standard diminish the
Court’s haphazard application of government speech, it would rectify listener based First
Amendment concerns of indoctrination, increase governmental accountability through the
electoral process, and provide a uniform, predictable standard for courts to follow. Only
clearly defined government speech would be tolerated, providing an unambiguous line
between when the government is permissibly speaking and when unconstitutional
conditions are being imposed on funds conferred to private individuals.

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i
Erwin Chemerinsky, Constitutional Law: Principles and Policies, 950-51 (4th ed. 2011)
(“‘the First Amendment was . . . intended to wipe out the common law of sedition, and
make further prosecutions for criticism of the government, without any incitement to law-
breaking, forever impossible in the United States of America.’”) (internal citation
omitted); See Patterson v. Colorado, 205 U.S. 454, 462 (1907) (“the main purpose of
such constitutional provisions is ‘to prevent all such previous restraints upon publications
as had been practiced by other governments’ and they do not prevent the subsequent
punishment of such as may be deemed contrary to the public welfare.”).
English law prohibited publication without a government-granted license and
speech through the law of seditious libel, making statements that were critical of the
government a crime. See Chemerinsky, supra, at 951 (“‘If people should not be called to
account for possessing the people with an ill opinion of the government, no government
can subsist. For it is very necessary for all governments that the people should have a
good opinion of it.’ . . . if anything, true speech was perceived as worse because it might
do more to damage the image and reputation of the government.”) (internal citation
omitted).
ii
Chemerinsky, supra note 1, at 953.
iii
See Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); see also
Members of City Council v. Taxpayers for Vincent, 446 U.S. 789, 804 (1984) (“[T]he
First Amendment forbids the government to regulate speech in ways that favor some
viewpoints or ideas at the expense of others.”) (citation omitted).
iv!Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 609 (1998).!
!
v!Perry v. Sindermann, 408 U.S. 593 (1972).
!
vi
Id. at 597.
vii
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005) (“[T]he Government’s
own speech . . . is exempt from First Amendment scrutiny.”).
viii
Wheeling Steel Corp. v. Glander, 337 U.S. 562, 570 (1949); cf. Watson v. Employers
Liab. Assur. Corp., 348 U.S. 66, 75 (1954) (“The State may arbitrarily exclude them or
may license them upon any terms it sees fit, apart from exacting surrender of rights
derived from the Constitution of the United States.”).
ix
A condition is the behavior that is demanded by the government before granting the
benefit, which may be a government subsidy of any type—including goods and services,

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privilege of using government facilities, tax exemptions, or cash. Kathleen M. Sullivan,
Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1439 (1989).
x
See Power Mfg. Co. v. Saunders, 274 U.S. 490 (1927) (expanding the unconstitutional
conditions doctrine from protection against interference with specific federal rights to
general conditions that violate the Due Process and Equal Protection Clauses of the
Fourteenth Amendment); Terral v. Burke Const. Co., 257 U.S. 529 (1922) (first
amalgamation of unconstitutional conditions, relating to a state statute that tried to limit
an international corporations right to federal courts in order to be licensed for business
within that state); 8 Witkin, Summary 10th (2012 supp.) Const Law, § 812, p. 17; 8
Witkin, Summary 10th (2005) Const Law, §813, p. 227 (restating the doctrine as, “There
are rights of constitutional statute whose exercise a State may not condition by the
exaction of a price. Engaging in interstate commerce is one. . . . Resort to the federal
courts in diversity of citizenship cases is another. . . . Assertion of a First Amendment
freedom 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 individual
under the Fourteenth Amendment prohibits use in subsequent criminal proceedings of
confessions obtained under threat of removal from office, and that it extends to all,
whether they are policemen or other members of our body politic.”).
xi
Regan v. Taxation with Representation of Wash., 461 U.S. 540, 597 (1983) (quoting
Perry 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 certain
forms of speech is in effect to penalize them for this speech [and] will have the effect of
coercing the claimants to refrain from the proscribed speech”).
xii
See Sindermann, supra note 4.
xiii
The rights-privilege distinction says, “That you don’t want the condition, then don’t
accept the subsidy.” see William W. Van Alstyne, The Demise of the Right-Privilege
Distinction in Constitutional Law, 81 HARV. L. REV. 1439, 1442 (1968) (“While the
concept of ‘privilege’ underlying Holmes’ epigram remains nominally intact, its
implications for positive law have been gradually eroded.”). But see Rodney A. Smolla,
The Reemergence of the Right-Privilege Distinction in Constitutional Law: The Price of
Protesting Too Much, 35 STAN. L. REV. 69, 69 (1982) (“Like the prematurely rumored
death of Mark Twain. . . reports of the demise of the [right-]privilege doctrine have been
greatly exaggerated. Since the nineteenth century, the doctrine has shown an uncanny
ability to reconstitute itself in spite of the best efforts of scholars and jurists to bury it.”).
xiv
Gary Finerman, Unconstitutional Conditions: The Crossroads of Substantive Rights
and Equal Protections, 43 STAN. L. REV. 1369, 1372 (1991); cf. Sullivan, supra note 9.

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Sullivan illustrates how unconstitutional conditions might be excited or evaded:
Not only must the condition put the potential beneficiary to a choice, but the fork
in the road must lie ahead rather than behind. Thus, the condition might be
imposed in the form ‘recipients of this benefit may not do x’ or ‘must do y’ so long
as the benefit lasts, where x or y are normally matters of the recipient's
constitutionally protected choice. Or the condition might be imposed as a
prerequisite for the benefit in the form ‘this benefit will be granted only to
recipients who will do x’ or ‘will not do y.’ The retrospective form, ‘this benefit
will be denied to applicants who have done x,’ might violate the ban on bills of
attainder, 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. of
Regents of Univ. of State of N.Y., 385 U.S. 589, 605-06 (1967) (stating, “[i]t is too late
in the day to doubt that the liberty of . . . expression may be infringed by the denial of or
placing of conditions upon a benefit or privilege.”) (internal citation omitted).!
!
xvii
Compare Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (invalidating a
restriction on the activities of lawyers receiving funds from the federal Legal Services
Corporation by limiting what they could argue) and FCC, supra note 16 (declaring
unconstitutional a federal statute that prohibited any noncommercial educational
broadcasting station which received a grant from the Corporation for Public Broadcasting
from engaging in editorializing) with Rust v. Sullivan, 500 U.S. 173, 180 (1991)
(upholding regulations that prohibited recipients of federal money from “engaging in
activities that ‘encourage, promote, or advocate abortion as a method of family
planning’”) and Regan, supra note 11, at 546 (upholding a provision of the federal tax
law that conditioned tax-exempt status on the requirement that the organization not
participate in lobbying or partisan political activities with the justification that “Congress
has simply chosen not to pay for TWR’s lobbying”).
xviii
Rust, supra note 17, at 181.
xix
Nelda H. Cambron McCabe, Ph.D., When Government Speaks: An Examination of the
Evolving Government Speech Doctrine, 274 ED. LAW REP. 753, 756 (2012) (“Although
the term ‘government speech’ was not used in Rust subsequent courts point to the case as
establishing the doctrine.”).
xx
Rust, supra note 17, at 180 (prohibiting the medical professionals from promoting or
advocating abortion, referring individuals to an abortion provider, or merely mentioning
abortion as an option).

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xxi
Id. (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-planning
schemes that support abortion because they support abortion, plainly targets a particular
viewpoint, undeniably allowing constitutional rights to be circumvented in favor of
funding).
xxii
Id. at 193.
xxiii
Id. at 197. Conversely, a condition is unconstitutional where “the government has
placed a condition on the recipient of the subsidy rather than on a particular program or
service, thus effectively prohibiting the recipient from engaging in the protected conduct
outside 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, the
normal work of attorneys.!!
!
xxvi
See Velazquez, supra note 17, at 558-59 (Scalia, J., dissenting) (arguing that the
statutory scheme in Velazquez was “indistinguishable in all relevant aspects from” the
scheme upheld in Rust); see also, Harvard Law Review Association, The Curious
Relationship Between the Compelled Speech and Government Speech Doctrines, 117
HARV. L. REV. 2411, 2430 (2004) (“In soft focus, Velazquez appears indistinguishable
from Rust . . . .”).
xxvii
Velazquez, supra note 17.
xxviii
Id. at 541-42 (holding that “viewpoint-based funding decisions can be sustained in
instances in which the government is itself the speaker, or instances, like Rust, in which
the government used private speakers to transmit information pertaining to its own
program.”).
xxix
Id. at 548.
xxx
Id. at 550 (Scalia, J., dissenting).
xxxi
Rosenberg v. Rector of the Univ. of Va., 515 U.S. 819 (1995).
xxxii
Id. at 834 (contrasting Rust, “us[ing] private speakers to transmit specific information
pertaining to its own program. We recognized that when the government appropriates

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public funds to promote a particular policy of its own it is entitled to say what it
wishes.”).
xxxiii
Id. at 819.
xxxiv
Velazquez, supra note 17.
xxxv
Rust, supra note 17.
xxxvi
See Cass R. Sunstein, Why The Unconstitutional Conditions Doctrine is an
Anachronism (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 functions
and goals of the modern regulatory state, we will not need, and therefore we will not
have, an unconstitutional conditions doctrine”); Cass R. Sunstein, Is There an
Unconstitutional Conditions Doctrine?, 26 SAN DIEGO L.REV. 337, 338 (1989)
(“Whether a condition is permissible is a function of the particular constitutional
provision at issue, on that score, anything so general as an unconstitutional conditions
doctrine 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 characteristic
technique by which government appears not to, but in fact does burden. . . liberties”).
xxxvii
See Keyishian, supra note 16, at 603 (finding that listeners have a right that
shouldn’t be skewed by government funded speech).
xxxviii
David Cole, Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in
Government-Funded Speech, 67 N.Y.U. L. REV. 675, 702 (1992).
xxxix
Id.; see also Mark Yudof, When Government Speaks: Politics, Law, and Government
Expression in America, 323 (Berkeley and Los Angeles: University of California Press,
1983) (“[L]aws and practices that permit massive government communications activities
may as effectively silence private speakers as a direct regime of censorship.”). Yudolf
cautions that the government may “dominate. . . the minds of individuals, suppressing
their ability to think critically about government leaders and policies.” After finding that
that research shows that governments were sometimes persuasive, and sometimes less so,
he nonetheless bases his theory on the “intuitive appeal” of the idea that governments
may manipulate and indoctrinate audiences. See Yudof supra.
xl
Cole, supra note 38, at 675 (“Noting the paradoxical nature of government-funded
speech—it creates possibilities for more inclusive public debate and allows the
government to make its viewpoint known to its constitutients even as it provides an
opening for the government to dominate the marketplace of ideas—Professor Cole

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contends that we need a more nuanced analytical framework to sort out the competing
values.”).
xli
This would have the added benefit of allowing lower courts to apply government
speech 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 whether
a reasonable person would, under all the circumstances, see the speech as private or
governmental); Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 965 (9th Cir. 2008) (using
the four-factor test to conclude that the “Choose Life” plates at issue were more toward
private 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 but
viewpoint neutral” restriction); ACLU of Tenn. v. Bredesen, 441 F.3d 370, 375-76 (6th
Cir. 2006) (adopting a two-pronged government speech test that looked at whether the
government set the overall message communicated and then whether the government
approved 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 a
four-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 over
the content of the speech; (3) the identity of the “literal speaker”; and (4) whether the
government or the private entity bears the “ultimate responsibility” for the content of the
speech—determining that license plates in question constituted private speech and that
their prohibition was, therefore, unconstitutional viewpoint discrimination).
xlii
Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565 (1980) (arguing that there
must be limits on structure and content of government speech within a constitutional
scheme); Mark G. Yudof, When Governments Speak: Toward a Theory of Government
Expression and the First Amendment, 57 TEX. L. REV. 863 (1979) (analyzing government
speech and suggesting curbing excessive government speech by limiting it to that
authorized by the legislature).
xliii
Carl G. DeNigris, When Leviathan Speaks: Reigning in the Government-Speech
Doctrine 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 is
reasonably attributable to the government; the government’s interest is substantial; and
there is no less intrusive means of protecting this interest.”).
xliv
Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J.) (“The Establishment
Clause prohibits government from making adherence to a religion relevant in any way to
a person's standing in the political community. Government can run afoul of that
prohibition...[by] endorsement or disapproval of religion. Endorsement sends a message
to nonadherents that they are outsiders, not full members of the political community, and
an accompanying message to adherents that they are insiders, favored members of the

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political community. The proper inquiry under the purpose prong of Lemon, I submit, is
whether the government intends to convey a message of endorsement or disapproval of
religion”).
xlv
Helen Norton, Constraining Public Employee Speech: Government’s Control of Its
Workers’ Speech to Protect Its Own Expression, 59 DUKE L. J. 1, 22 (2009) (“Political
accountability, rather than the Free Speech Clause, provides the recourse for those
unhappy with their government’s expressive choices.”).
xlvi
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 485 (2009) (Souter, J.,
concurring).
xlvii
Gia 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 defense
unless it can show, at a minimum, that the reasonable recipient of the speech understands
that speech to originate from the government).
xlviii
See Choose Life Ill., supra note 41, at 863 (finding that the Fourth and Ninth Circuit
multi-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).
xlix
Cf. Harris v. Forklift Sys. Inc., 510 U.S. 17, 20-21 (1993) (assessing hostile work
environment 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 Amendment
purposes when a reasonable person in the same situation would have believed she was
not free to leave); State v. Stewart, 763 P.2d 572, 577 (Kan. 1988) (“A person is justified
in using force against an aggressor when. . . he or she reasonably believes such force to
be necessary.”).
l
Helen Norton, The Measure of Government Speech: Identifying Expression’s Source, 88
B.U. L. REV. 587, 595 (2008).
li
See 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 less
effective than communication that does not appear to come from some other influence.”).
lii
Lee, supra note 47, at 1009.
liii
Id. 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 enhance
the possibility of misattribution and that an unattended display’s location is a significant
cue in determining its source).

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Concentrating on government speakers who seek to mold public opinion by
ascribing government notions to private actors seeming less self-interested or otherwise
more convincing, Lee’s main concern is governmental manipulation of the public’s
attitudes towards its views by purposefully obfuscating a government message’s source.
For example, a video news segment produced by the government and distributed to and
circulated by the media absent governmental accreditation. Lee highlights that this
governmental manipulation is dangerous since, “non-transparent communications
undermine mechanisms of political accountability, both by precluding individuals from
knowing when, and to what extent, the government is responsible for specific speech and
by enabling the government to skew individuals' perceptions of the actual support for its
ideas.” Lee, supra note 47, at 985-89.
liv
See 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 a
particular idea, it is, in the end, accountable to the electorate and the political process for
its advocacy. If the citizenry objects, newly elected officials later could espouse some
different or contrary position.”); see also Finley, supra note 4, at 598 (Scalia, J.,
concurring).
lv
Johanns, supra note 7, at 570 (Souter, J., dissenting).
lvi
Sullivan, supra note 9 (saying that government speech needs especially strong
justification in order to compel the defense).
lvii
Summum, supra note 46, at 485 (Souter, J., concurring). (“that government speech
should not be a rigid category, but rather, a “rule of thumb” where it’s asked “whether a
government action burdens speech disproportionately in light of the action’s tendency to
further a legitimate government objective”).
lviii
See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding application of hate
speech 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); United
States v. Eichman, 496 U.S. 310 (1990) (invalidating federal Flag Protection Act); Texas
v. Johnson, 491 U.S. 397, 420 (1989) (holding Texas flag desecration statute
unconstitutional); Boos v. Barry, 485 U.S. 312, 321 (1988) (holding that law that
prohibited displaying of political messages within 500 feet of building occupied by a
foreign government is content-based restriction on political speech and unconstitutional).
lix
See Ward, supra note 21, at 791 (1989) (“[Government] restrictions on the time, place,
or manner of protected speech [must] leave open ample alternative channels for
communication of the information.”).

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lx
Rust, supra note 17, at 200.
lxi
Cole supra note 38.
lxii
Id. 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 exclude
speakers 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 with
its 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 have
compelling reason)); See Patterson, note 1.
lxiii
Cole, supra note 38, at 739 (saying a counselee is a particularly vulnerable captive
audience member based on a trust relationship with the medical counselor and anything
but neutrality in this setting would question the ethical fiduciary relationship between
doctor and patient). Additionally, Cole sites Congress’ creation of the National
Endowment for the Arts (NEA) as supportive of argument that artistic expression is
central to the cultural and political vitality of democratic society. Id.
lxiv
See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000) (“If a statute
regulates speech based on its content, it must be narrowly tailored to promote a
compelling Government interest. If a less restrictive alternative would serve the
Government’s purpose, the legislature must use that alternative.”); Roe v. Wade, 410
U.S. 113, 155 (1973) (“Where certain ‘fundamental rights’ are involved, the Court has
held that regulation limiting these rights may be justified only be a ‘compelling state
interest,’ and that legislative enactments must be narrowly drawn to express only the
legitimate state interests at stake.”).
lxv
See Simon & Schuster, supra note 52, at 120-21; FEC v. Nat’l Conservative Political
Action Comm., 470 U.S. 480, 500-01 (1985); First Nat'l Bank of Boston v. Bellotti, 435
U.S. 765, 794 (1978).
lxvi
Wooley v. Maynard, 430 U.S. 705, 716 (1977) (citing Shelton v. Tucker, 364 U.S.
479, 488 (1960)).
lxvii
See Randall P. Bezanson & William G. Buss, The Many Faces of Government
Speech, 86 IOWA L. REC. 1377, 1485 (2001) (“[B]ecause the government’s capacity for
communicating its position is extensive, it is better to rely on the government’s access to
the 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 Its
Own Expression, 37 U.C. DAVIS L. REV. 1317, 1339 (2004) (discussing factors to

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consider when determining when the government may protect its own expression and
arguing that “[i]f government can adequately protect the integrity of its expression by
disclaiming private speech, then it should do so”).
lxviii
DeNigris supra note 43, at 145 (highlighting the various and divergent government
speech standards adopted by Circuits).
lxix
Norton, supra note 45, at 27 (advocating the use of the government-speech defense
only when it can be established that the government claimed the speech as its own and
that the speech was understood to be the government’s at the time of its release).
lxx
See Summum, supra note 46, at 467 (“[t]he Free Speech Clause restricts government
regulation of private speech; it does not regulate government speech”).