Government Nonendorsement

By Nelson Tebbe. Full text here.

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse Christianity but they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no Establishment Clause for secular ideas. So today there is a common belief that government is free to endorse secular ideas. But that belief is mistaken. In this Article, I argue that in fact the Constitution properly imposes a broad principle of government nonendorsement that cuts across multiple provisions—including equal protection, due process, and free speech itself—and that prohibits endorsements whenever they abridge full and equal citizenship in a free society. Situations where official expression can run up against such limitations include racialized speech, electioneering, same-sex marriage exclusions, political gerrymandering, and messages concerning reproduction. Through analysis of these examples, I infer the requirement of government nonendorsement for the first time. Furthermore, I show how an appreciation of constitutional limits on official endorsement enlightens theoretical debates surrounding political morality, free speech, and religious freedom.