| Government speech within society creates a paradox of constitutional democracy. The government must have speech rights to create policies and carry out services to satisfy the requirements of popular sovereignty. However, individuals must also speak to fulfill the requirements of self-government. The debate over government speech has changed within the last few decades. The previous debate regarding the limitations of government speech centered on the ability of government to promote a specific ideology or belief. Today, the debate focuses on the extent of the government's power to suppress private speech to promote the government's speech. The government speech doctrine, a recently created jurisprudence relied upon by courts to exempt government speech from First Amendment regulation, poses a real threat to speech occurring within speech enhancing and democracy enhancing institutions---institutions that are referred to as First Amendment institutions. Courts are now using the government speech doctrine to limit the free speech rights of speakers within First Amendment institutions.;This dissertation considers three questions regarding the government speech doctrine: (1) how has the government speech doctrine evolved within First Amendment jurisprudence; (2) what effect has the government speech doctrine had on individuals' free speech claims; and (3) what are the normative implications of the government speech doctrine on free speech? In considering these questions, this dissertation, relying on the marketplace of ideas and democracy theories of First Amendment jurisprudence, argues that courts should take an institutional approach when applying the government speech doctrine by prohibiting the application of the doctrine to speech occurring within institutions that embody First Amendment values when the speech relates to the values and norms of these institutions. Further, instead of merely deferring to these institutions when free speech rights are involved, courts should exercise greater scrutiny over speech occurring within First Amendment institutions. These institutions have values and norms that frequently differ from other institutions and promote the values associated with the First Amendment and democracy. Application of the government speech doctrine to these institutions could substantially impair the existence of free speech and democracy within society. |
