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Last updated July 28, 2025

The First Amendment generally prohibits the government from engaging in viewpoint discrimination, or favoring the views of some private speakers and disfavoring others. But there is a crucial difference between the government interfering with private speech and the government advancing its own message — and it can sometimes be difficult to tell the difference. A key question is: When can the government communicate a message to the public without including other points of view?

Under the “government speech doctrine,” the government can speak for itself — often in the form of public statements, official government information campaigns, and even public funding for certain messages or causes — without running afoul of the First Amendment. Communicating directly with the public is often necessary for the government to accomplish goals or administer programs, and private speakers do not have a right to challenge the government’s own message. 

In other words, the government is not required to maintain viewpoint neutrality with respect to government speech because the First Amendment restricts government regulation of private speech, not government expression itself. This distinction is mightily important, because the most fundamental of all First Amendment principles is the government may not discriminate against private speakers or groups on the basis of viewpoint. As Justice Anthony Kennedy memorably wrote in Rosenberger v. University of Virginia (1995), viewpoint discrimination is “an egregious form of content discrimination.” 

However, there is a key difference between the government regulating or censoring private speakers and the government engaging in its own expression. Here’s what you need to know.

The origins of the government speech doctrine 

Numerous judicial precedents hold that the government has authority to convey its own positions and policies. Although this is sometimes loosely described as the government’s “right” to engage in expression, this is a misconception. Governments don’t have rights — they have powers. And government speech is simply an aspect of government authority that is exercised in furtherance of its legitimate objectives.

Some trace the government speech doctrine to the Supreme Court’s decision in  (1991), a case involving a challenge to a federal regulation that prohibited health or medical professionals receiving federal funding from providing any counseling or information about abortion. Challengers to the law contended that the regulation amounted to an impermissible gag order on individual speakers. But as Chief Justice William Rehnquist explained, writing for the majority: 

The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.

The Court next addressed the government speech doctrine in Johanns v. Livestock Marketing Association (2005), a case involving a First Amendment challenge to a compelled advertising program for beef producers. Under the Beef Promotion and Research Act, the government required mandatory contributions from beef producers to fund generic advertisements. Several beef producers objected, contending they had a First Amendment right not to be compelled to contribute to such speech. But the Supreme Court rejected the challenge, finding that the program was a permissible form of government speech. 

“The message set out in the beef promotions is from beginning to end the message established by the Federal Government,” wrote Justice Antonin Scalia for the majority. “Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech.”

Government speech — or censorship?

In recent years, the Supreme Court and lower courts have examined the government speech doctrine in a variety of contexts ranging from monuments in parks, to license plates, to regulation of federal trademarks, the flying of flags on city hall, and more. 

The Court’s most expansive discussion of the government speech doctrine occurred in Pleasant Grove v. Summum (2009), a case involving a Utah city’s refusal to place a religious group’s monument in a public park. The group argued the city violated the Free Speech Clause by accepting a Ten Commandments monument but rejecting their Seven Aphorisms of Summum monument. To Summum, this constituted a form of viewpoint discrimination. But, the city argued that the monuments were a form of government speech and, thus, their inclusion or exclusion is immune from First Amendment scrutiny.  The Court unanimously found that monuments were a quintessential form of government speech.  

When the government convinces a court that speech is its own, that expression or activity falls outside the First Amendment’s protection.

A sharply divided Supreme Court also held in Walker v. Sons of Confederate Veterans (2015) that specialty license plates were a form of government speech, meaning the state of Texas could deny a design the Sons of Confederate Veterans submitted because it contained an image of the Confederate flag. In a 5-4 decision, the majority held Texas’s specialty license plate designs constitute government speech. In his majority opinion, Justice Stephen Breyer explained that specialty license plates are a form of government identification, adding the government is highly involved in approving their design and look.  He identified three factors  — sometimes called the “Walker factors” — for determining whether expression is government speech: (1) the history of the expression by the government, public perception of the speech as a governmental or private message, and the degree of governmental control. 

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Justice Samuel Alito, who has played , wrote a powerful dissenting opinion, asking the question: “As you sat there watching these plates speed by, would you really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?” 

In later decisions, the Court held trademark registrations and flags on a city hall pole were not forms of government speech. In the trademark case Matal v. Tam (2017), the Patent and Trademark Office denied the rock band The Slants registration under the Trademark Act for their name because it was assertedly disparaging towards “persons of Asian descent” — even though the band members are themselves Asian.

The Court held the Act’s disparagement clause violated the First Amendment, emphasizing that registered trademarks and the trademark registry are not government speech. Writing for the majority, Justice Alito warned: 

[W]hile the government-speech doctrine is important — indeed, essential — it is a doctrine that is susceptible to dangerous misuse. If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents.

A few years later, the Court in Shurtleff v. City of Boston (2022) held the city of Boston did not engage in government speech when it allowed various groups to fly flags on its flagpoles.   The Court identified the factors for evaluating whether expression is considered government speech based on its precedents then to date, noting “Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.”

The key problem for the city was that Boston officials denied the request of Harold Shurtleff, who wanted to fly flags for this pro-Christian group during Camp Constitution, but allowed many other groups to fly their own flags. This opened up the city to a cognizable charge of viewpoint discrimination, because it allowed all sorts of speech but denied a religious speaker the same opportunity. 

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The government speech doctrine remains a fixture of First Amendment law. When the government convinces a court that speech is its own, that expression or activity falls outside the First Amendment’s protection. But only when the speech clearly is that of the government should the First Amendment inquiry end.