Journal of Free Speech Law: "The Government Speech Doctrine Goes to School," by Heidi Kitrosser

Part of a Knight First Amendment Institute Symposium on Managing Government Employee Speech in a Democracy, which the Journal is publishing.

The article is here; the Introduction:

Judge Mark E. Walker, the chief judge for the Northern District of Florida, began his recent opinion in Pernell v. Florida Board of Governors by quoting George Orwell's classic novel 1984. Walker wrote: "'It was a bright cold day in April, and the clocks were striking thirteen,' and the powers in charge of Florida's public university system have declared the State has unfettered authority to muzzle its professors in the name of 'freedom.'" The muzzle in question was Florida's Individual Freedom Act (IFA). The IFA, which was first introduced as the "Stop W.O.K.E. Act," prohibits "'training or instruction that espouses, promotes, advances, inculcates, or compels … student[s] or employee[s] to believe [eight specified concepts].'" Among the prohibited concepts are the notions that "[a] person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion" and that "[a] person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously."

In pointing to the law's Orwellian aspects—including its name, which Walker deemed a classic example of "'doublespeak,'" and its supporters' insistence that it protects freedom by restricting speech—Walker touched on something fundamental to the cultural and political setting from which the IFA emerged. The IFA springs from a movement that treats much of the public knowledge sector, particularly public education, as leftist and indoctrinating. It also relies on a populist sensibility that separates its supporters—"the people"—from those who would indoctrinate them. From this perspective, state control of pedagogical speech is the very opposite of censorship: It is freedom, liberating ordinary students and parents from mind control by the overreaching others.

The IFA's supporters also rely heavily on a legal argument that parallels their political and cultural rhetoric: States are entirely unconstrained by the First Amendment when they restrict pedagogical speech in public schools because such speech belongs to the state and, through the state, to the people. The voice of the people is thus expressed, not restricted, through such legislation. This argument—which lies at the heart of the IFA's defense in First Amendment challenges against it—represents a very broad interpretation of a line of judicial precedent known as government speech doctrine. Government speech doctrine embodies the notion that when the government employs personnel or subsidizes private speakers to convey the government's own message, the First Amendment simply does not apply; the government may impose whatever restrictions it likes on the resulting speech.

The IFA is one of hundreds of state and local measures adopted since 2020 to restrict classroom teaching on race and gender in public schools (referred to in this essay as "pedagogical gag laws"). Although most of these laws apply to K-12 public schools, a significant minority also target public colleges and universities. The same movement that gave rise to these actions has also set its sights on public school libraries. PEN America reports that, since 2021, there has been a substantial rise in content-based removals of, and restrictions of access to, school library books due to "parent or community challenges, administrative decisions, or in response to direct or threatened action by lawmakers or governmental officials." During the 2022–2023 school year, individual and group-coordinated challenges to book titles were supplemented and "supercharged by a new source of state pressure": state legislation imposing content-based restrictions on the types of books that public school libraries could make available to students (referred to as "book removal laws").

These measures are fueled by the same discourse of freedom and populism as is the IFA, and their defenders have raised similar government speech arguments in litigation as have the IFA's supporters. A close look at this discourse and these arguments illuminates the nature and dangers of each and their relationship with one another. Indeed, a significant danger of an unfettered government speech doctrine is that it will constitutionalize a type of doublespeak, enabling the state to impose restrictions on public knowledge enterprises—such as public education or libraries—that fundamentally distort the very nature of those enterprises. For example, legislation requiring public school science teachers to refrain from expressing agreement with the scientific method or evolution while on the job would distort the very thing—science education—that a state purports to provide. Such distortion effectively leverages a field's norms and perceived legitimacy to launder government messaging, making it appear to be something more than the product of a political directive. This skews public knowledge and debate in service of official state messaging and undermines a core function of free speech in the United States: to enable self-government through an informed and capable citizenry.

There is, however, a path to limit the reach of government speech doctrine when its effect would be distorting, and its rough beginnings can be found in existing judicial precedent. I call this path the anti-distortion principle. It amounts to a wariness of state-imposed conditions on public knowledge programs that distort the nature of the programs or their communicative outputs. For example, the Supreme Court has held that states may create speech forums and specify that those forums serve only limited purposes. When a state does so, however, "[it] must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not 'reasonable in light of the purpose set by the forum,' nor may it discriminate against speech on the basis of its viewpoint." Similarly, in evaluating the constitutionality of federal funding conditions imposed on public libraries, the Supreme Court has assessed their compatibility with the ordinary practices of libraries and librarians.

In this essay, I use ongoing litigation involving three pieces of state legislation—the IFA, a New Hampshire pedagogical gag law, and an Iowa book removal law—as jumping-off points to consider the public discourse in support of such laws, its connection to the government speech arguments made by the defendants in their respective litigations, and the dangers that these arguments reveal about an overly broad government speech doctrine. I also explore the anti-distortion principle as a limit on the government speech doctrine's reach and hence as an antidote to these dangers.

In Part I, I situate the recent wave of pedagogical gag laws and book removal laws (collectively "educational suppression laws") within a broader movement, one that itself is grounded in a history of right-wing populist hostility to public education and employs rhetoric about freedom and democracy. In Part II, I provide a high-level overview of major judicial precedents relating to government speech doctrine, with special emphasis on cases involving educational institutions. In Part III, I discuss judicial decisions that bear traces of an anti-distortion principle, again highlighting those precedents that involve educational institutions and libraries. In Part IV, I discuss ongoing litigation involving three examples of state educational suppression laws from, respectively, Florida, New Hampshire, and Iowa. I focus especially on the government speech arguments and responses thereto raised in these cases. In Part V, I draw from the cases surveyed in Parts III and IV to consider how we might strengthen and build on anti-distortion reasoning to limit government speech doctrine going forward.