Also known as: governmental speech · gov't speech · government-speech doctrine
Written by attorneys — see sources below.
A category of expression attributable to the government itself rather than to private speakers. The government may select and control its own messages without Free Speech Clause scrutiny even when it accepts assistance from private sources. Such speech remains subject to other constitutional limits such as the Establishment Clause.
Gary Goldman donates a monument to a city park already displaying several permanent memorials. The city accepts one donated monument but rejects Gary's proposed design. Because the display constitutes government speech the city may choose which messages to endorse without violating the Free Speech Clause.
Gideon Graves a student delivers a prayer over the public address system before a school football game under a district policy that selects the speaker. The prayer is treated as government speech because the event occurs on school property under school supervision so the district policy violates the Establishment Clause.
The Santa Fe Independent School District is a political subdivision of the State of Texas responsible for the education of more than 4,000 students. It includes Santa Fe High School along with two primary schools, an intermediate school, and the junior high school. Prior to 1995, the student who occupied the school's elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season. In April 1995, respondents, two sets of current or former students and their respective mothers from one Mormon family and one Catholic family, commenced this action alleging that the District had engaged in several proselytizing practices, such as allowing students to deliver overtly Christian prayers over the public address system at home football games. They moved for a temporary restraining order to prevent violations at the imminent graduation exercises. The District Court permitted respondents to litigate anonymously to protect them from intimidation or harassment. While these proceedings were pending in the District Court, the District adopted a series of policies over several months dealing with prayer at school functions. On May 10, 1995, the District Court entered an interim order providing that non-denominational prayer consisting of an invocation and/or benediction could be presented by a senior student or students selected by members of the graduating class, with the text of the prayer determined by the students without scrutiny or preapproval by school officials. In response to the District Court order, the District enacted a policy in May for graduation ceremonies that authorized two student elections. In July, the District enacted another policy eliminating the nonsectarian requirement but providing that the May policy would become effective if enjoined. The parties stipulated that after the May policy was adopted the senior class voted by secret ballot to include prayer at graduation and elected two seniors to deliver the invocation and benediction. The August policy for football games, titled Prayer at Football Games, was similar and authorized two student elections to determine whether invocations should be delivered and to select the spokesperson. On August 31, 1995, the high school students voted to allow a student to say a prayer at varsity football games and a week later selected a student to deliver the prayer. The final October policy is essentially the same as the August policy though it omits the word prayer from its title and refers to messages and statements as well as invocations. It permits students to deliver a brief invocation and/or message during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition, with the student volunteer selected by classmates deciding the content consistent with the policy goals, and includes a fallback provision that automatically adds a nonsectarian and nonproselytizing limitation if the preferred policy is enjoined. The District Court entered an order precluding enforcement of the first open-ended policy. It held that delivering a prayer over the school's public address system prior to each football game coerces student participation in religious events. Both parties appealed. The Court of Appeals for the Fifth Circuit reversed the district court's holding that the alternative policy could be extended to football games. The Supreme Court granted the District's petition for certiorari, limited to the question whether the petitioner's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause.
View caseGeorge Garcia posts a directional sign for his church that violates a town ordinance distinguishing among sign types by content. The town defends the rule as government speech regulating its own messages. Because the ordinance regulates private speech rather than government expression it receives strict scrutiny under the Free Speech Clause.
The Town of Gilbert, Arizona, maintains a comprehensive Sign Code that categorizes outdoor signs by the type of information they convey and imposes different restrictions on each category. Ideological signs communicating messages or ideas for noncommercial purposes may be up to 20 square feet and displayed without time limits. Political signs designed to influence elections may be up to 32 square feet and displayed up to 60 days before a primary and 15 days after a general election. Temporary directional signs relating to qualifying events, such as meetings of nonprofit groups, are limited to 6 square feet, may be displayed no more than 12 hours before and 1 hour after the event, and are restricted in placement. Petitioners Good News Community Church and its pastor Clyde Reed are small nondenominational churches that hold services at various temporary locations in the Town. To advertise their services, the Church posts 15 to 20 temporary signs around the Town early on Saturday mornings displaying the Church name and the time and location of the next service, removing them around midday on Sunday. The Town's Sign Code compliance manager cited the Church twice for violating the time limits on temporary directional signs and for failing to include an event date on the signs. Town officials confiscated one sign, which Reed retrieved from municipal offices. Reed contacted the compliance department to reach an accommodation, but the manager informed the Church there would be no leniency and promised to punish future violations. The Churches filed suit in the United States District Court for the District of Arizona, alleging the Sign Code violated the First Amendment, and sought a preliminary injunction. The District Court denied the motion. The Ninth Circuit affirmed, concluding the Sign Code was content neutral. The Supreme Court granted certiorari.
View caseGina Griffin a county official arranges a nativity scene inside the county courthouse during the holiday season. The display is government speech because it is placed and maintained by county employees on government property. The arrangement therefore faces Establishment Clause review rather than Free Speech Clause analysis.
In December 1986 Allegheny County permitted the Holy Name Society to place a creche on the Grand Staircase of the county courthouse. The display ran from November 26 through January 9. It consisted of the Nativity figures inside a wooden manger topped by an angel holding a banner that read "Gloria in Excelsis Deo!" The creche was framed by a wooden fence, red and white poinsettias, and two small evergreen trees. A plaque stated that the display was donated by the Holy Name Society. The county used the creche as the backdrop for its annual Christmas-carol program. High-school choirs performed during weekday lunch hours. At the same time the city of Pittsburgh erected a 45-foot Christmas tree under the middle arch of the Grant Street entrance to the City-County Building. On December 22 the city placed an 18-foot Chanukah menorah of tree-and-branch design next to the tree. The tree stood beneath a sign bearing the mayor's name and the words "Salute to Liberty." The menorah was owned by Chabad. City employees stored, erected, and removed it each year. The display remained until January 13. On December 10, 1986 the Greater Pittsburgh Chapter of the American Civil Liberties Union and seven local residents filed suit in federal district court. They sought a permanent injunction against both displays. Chabad was permitted to intervene as a defendant to defend the menorah. The district court denied the injunction on May 8, 1987. A divided panel of the Court of Appeals for the Third Circuit reversed. It held that each display had the impermissible effect of endorsing religion. Rehearing en banc was denied by a 6-to-5 vote. The county, the city, and Chabad each petitioned for certiorari. The Supreme Court granted all three petitions.
View caseGuardian Insurance a law school denies access to military recruiters on campus. Congress conditions federal funding on equal access under the Solomon Amendment. The funding condition is upheld because it regulates the school's conduct rather than compelling speech.
Georgia Gibbs a private group seeks to erect a cross in a public square already used for other displays. The state denies the request. The denial does not constitute government speech because the square is a public forum open to private expression.
Privately donated speech becomes government speech when the government accepts and displays the message as its own such as by installing a permanent monument in a public park. The government then controls selection and may reject additional messages without Free Speech Clause scrutiny.
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Government speech is exempt from Free Speech Clause review but remains subject to the Establishment Clause and other constitutional constraints. A court may still invalidate government speech that endorses religion or violates equal protection.
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When the government funds a program to advance its own policy goals the funding conditions constitute government speech and may limit the use of funds without violating the First Amendment. The restriction must apply only within the funded program itself.
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Specialty license plates issued by the state and bearing the state's name are government speech. The state may therefore accept or reject proposed designs based on message without triggering traditional free speech scrutiny.
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