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Hastings Constitutional Law Quarterly

Authors

Mark Strasser

Abstract

The government speech doctrine permits the government to convey its stance on issues through its actions. This article focuses on the development of the government speech doctrine and argues the necessity of limitations on this doctrine to prevent infringements on First Amendment rights. In Rust v. Sullivan, the Supreme Court first recognized what would later be characterized as the government speech doctrine, holding that a statute that prevented clinics from receiving federal funds for abortion-related activities did not violate the Constitution. The Court has subsequently suggested that this was in essence allowing the government to convey a particular message through this action. Although the First Amendment protects citizens from the government's restrictions on speech, it does not reach government speech. This presents a problem when it is unclear whether a government act is government speech or government regulation that infringes on the citizenry's First Amendment rights. The Court has not yet set forth the criteria to determine this, which has already led to some circuits developing their own criteria and limitations to the government speech doctrine. As time progresses, this will lead to different conclusions in similar cases depending on the court the case is heard before. Thus, it is imperative that the Court offer limitations on what can be characterized as government speech, not only for the sake of uniformity, but also to prevent this exception from effectively wiping out many of the protections offered by the First Amendment.

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