DEFINING GOVERNMENT SPEECH: RECENT APPROACHES AND THE GERMANENESS PRINCIPLE J&MC Q J&MC Quarterly Vol. 82, No. 2 Summer 2005 398-415 ©2005 AEJMC Supreme Court Justice Robert H. Jackson wrote one of the most sweeping and well-known statements about the First Amendment in 1943: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citi- zens to confess by word or act their faith therein.” 1 Subsequently, this sentiment was frequently invoked to prevent the government, in the words of Justice Jackson in a 1945 concurring opinion, “from assuming a guardianship of the public mind through regulating the press, speech, and religion.” 2 In contemporary American society, however, the specter of gov- ernment prescription of orthodoxy lurks not only in regulation of pri- vate speech but also in the government’s own speech. A close analysis of relevant federal court opinions demonstrates that when the govern- ment speaks—even if that speech compels or overwhelms private speech, or expresses official disapproval on the basis of viewpoint—the First Amendment does not always protect the public mind from the gov- ernment’s guardianship. 3 The danger arises not merely because the gov- ernment speaks, for it can hardly be contested that the government should inform its citizens through public reports, press conferences, In the last decade, the U.S. Supreme Court and lower federal courts have fashioned the principle that the First Amendment does not limit the gov- ernment’s ability to determine the content of its own messages. Yet the Supreme Court has not defined what is meant by “government speech.” Defined broadly, it may encompass viewpoint-based messages on contro- versial social issues, privately funded advocacy on behalf of certain industries, and official endorsement of certain ideologies. In the face of this uncertainty, and confronted with numerous recent cases in which the government asserts its right to expression, the U.S. courts of appeal have devised three major approaches to distinguishing government speech from private speech. The Supreme Court touched on aspects of these approaches in an important 2005 opinion, yet significant questions remain about the definitional contours of the Court’s developing govern- ment speech doctrine. Edward L. Carter is an assistant professor in the Department of Communications at Brigham Young University. The author wishes to thank Ed Adams and Jeffery A. Smith for their insightful comments on earlier versions of this manuscript. JOURNALISM & MASS COMMUNICATION QUARTERLY 398 By Edward L. Carter