Heidi Kitrosser, Northwestern School of Law, has published The Government Speech Doctrine Goes to School. Here is the abstract.
Since 2020, hundreds of state and local measures have been adopted 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. This movement treats much of the public knowledge sector, particularly public education, as both 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. Supporters of pedagogical gag laws 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 laws’ defenses in First Amendment challenges against them—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. In this essay, I use ongoing litigation involving three pieces of state legislation as a jumping-off point 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 a countervailing principle – “the anti-distortion principle” – to limit the government speech doctrine’s reach.
Download the article from SSRN at the link.