The common understanding of the First Amendment is that its purpose is primarily libertarian, serving to protect private citizens' expression from government censorship. In the modern era, however, the government's pervasive presence-especially in the role of funder of private activity-has blurred the lines between governmental and private speech. Further, the relatively new, increasingly influential government speech doctrine-which dictates that the government will not be subjected to First Amendment scrutiny when it is engaging in communication-has been the Supreme Court's guidepost of late when the Court has been confronted with a case involving expression with both private and public elements. The government speech doctrine as currently applied by the Court is a relatively blunt instrument, one which does not distinguish between different levels of government or the varied purposes of government activity. The overwhelming weight of First Amendment doctrine, however, suggests that the application of the Free Speech Clause should be case-specific, with each type of government regulation receiving a level of scrutiny appropriately tailored to thespecific type of speech with which it deals and the context in which that speech operates. This Note argues that the Court should adopt a similarly contextual approach when choosing how and whether to apply the government speech doctrine. Specifically, it posits that when a government organization is charged with a task that heavily implicates the First Amendment rights of private parties-such as arts funding-and Congress has purposefully given it a measure of independence to allow it to fulfill that role in a neutral manner, the Court should afford that organization's selection activities protection under the Free Speech Clause, rather than treating them as government speech. This approach would allow independent organizations responsible for promoting activities clearly protected by the First Amendment-like creative writing, journalism, and the visual arts-todefend their merit-based selection decisions against partisan political influence, instead of conflating the two levels of decisionmaking into one broad category of government speech. Though this approach ostensibly goes against the libertarian aims of the First Amendment, this Note seeks to demonstrate that giving independent-minded government organizations free speech rights on an institutional basis actually comports more closely with the theory, history, and doctrine of the First Amendment than does the current government speech doctrine.
Leslie Cooper Mahaffey,
“There Is Something Unique … about the Government Funding of the Arts for First Amendment Purposes”: An Institutional Approach to Granting Government Entities Free Speech Rights,
60 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol60/iss5/4