Because of the government speech doctrine, public school curriculum restrictions like “Don’t Say Gay” mandates and bans on teaching critical race theory may escape free speech review. This exemplifies “First Amendment capture.” The term “capture” comes from “agency capture,” which occurs when regulated entities effectively gain control over the agency meant to oversee them. First Amendment capture occurs when speech becomes controlled by the government when the Free Speech Clause should be regulating the government.
Generally, laws that censor content trigger strict scrutiny under the Free Speech Clause. Curriculum bans, however, may trigger no scrutiny at all. Under the government speech doctrine, government speech is not subject to any free speech scrutiny. Teachers will struggle to challenge restrictions about what they may teach in the classroom because their speech “pursuant to official duties” is considered government speech. Likewise, students may not be able to challenge these restrictions on what they are allowed to learn if curricular decisions are deemed government speech—a possibility given unclear rules for evaluating censorship of public school curriculum. Although some lower courts have interpreted Supreme Court precedent to find that curriculum decisions violate the Free Speech Clause if motivated by political or partisan reasons rather than legitimate pedagogical ones, others have concluded that the Free Speech Clause does not apply because curriculum decisions represent government speech.
This Essay argues that the government speech doctrine overreaches in at least two ways. First, it classifies as “government speech” speech that might actually be mixed speech—that is, speech with both government and private speakers. Second, it classifies as “government speech” streams of speech that the audience has as much a stake in, if not more, than the speaker. The Free Speech Clause, after all, protects the free flow of speech, not just speakers. In both cases, the Essay concludes, the speech should undergo some level of Free Speech Clause review.