Government Endorsement: A Reply to Nelson Tebbe’s Government Nonendorsement

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center, and right, even on controversial issues. Greene supports Tebbe’s view that there are some limits on government speech, but such limits come almost entirely from outside the Free Speech Clause. The Establishment Clause, the Equal Protection Clause, and the Due Process Clause (to name probably the three most important sources) all limit state speech, to some extent. But otherwise, Greene contends, Tebbe is wrong to claim that “the Constitution properly imposes a broad principle of government nonendorsement.” There is no such principle; in fact, says Greene, the general principle is the opposite—government endorsement is both proper and constitutional.

Abner S. Greene, Government Endorsement: A Reply to Nelson Tebbe’s Government Nonendorsement, 98 Minn. L. Rev. Headnotes 87 (2014).