Washington Law Review
Four-Factor Disaster: Courts Should Abandon the Circuit Test for Distinguishing Government Speech from Private Speech
A recent addition to First Amendment jurisprudence, the government-speech doctrine was developed by the Supreme Court to insulate government speech from certain First Amendment challenges. Broadly, the doctrine rests on the notion that when the government speaks for itself, it may say what it wishes. Recently, government entities facing claims of viewpoint discrimination against speech have asserted a government-speech defense, claiming that their viewpoint-based actions were justifiable because they were not regulating private speech but speaking for themselves. Several federal courts deciding these cases have applied a circuit-developed, four-factor test to determine whether the speech at issue was private speech or government speech. This test looks at the following factors: (1) the central purpose of the program in which the speech occurs, (2) the degree of editorial control exercised over the speech by the government or by private parties, (3) the identity of the literal speaker, and (4) whether the government or private parties bear the ultimate responsibility for the speech. This Comment argues, for two principal reasons, that courts should abandon the four-factor test for distinguishing government speech from private speech. First, in the face of the inherent malleability of the factors, courts applying the test have failed to produce a principled and consistent approach that guides future courts. Second, an application of the test to Rust v. Sullivan, 500 U.S. 173 (1991), the Supreme Court’s original government-speech case, yields a result contrary to the Court’s decision. This Comment does not propose an alternative to the four-factor test, but does suggest that courts, in fashioning a new approach, should adhere to the principles underlying two distinct lines of Supreme Court cases.
Four-Factor Disaster: Courts Should Abandon the Circuit Test for Distinguishing Government Speech from Private Speech,
83 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol83/iss4/7