The Public Interest and Free Expression
Governments have the power, the right, and even the obligation to speak. Buy war bonds! Recycle your trash! Honor the flag—the old red, white, and blue one or the new rainbow one! Be all you can be! Governments are constantly hollering at us, telling the citizenry what their leaders stand for; what actions should be encouraged; what ideologies should be shunned.
The government must speak. But it cannot use its speech to silence or shout down the voice of others: not even (in most cases) its own officials or employees. That is the basic content of the so-called “government speech doctrine” in American constitutional law. But government speech doctrine has not been a great success. It is a rather vague multi-factor balancing test—just one step removed from “Goldilocks-ing.” The Supreme Court’s most recent decision on government speech, Shurtleff v. City of Bos., 596 U.S. 243 (2022), produced two different standards for evaluating when a government is speaking itself versus offering a platform for private speech: neither standard is a bright-line rule. And lower court rulings are chaotic, even when faced with identical fact patterns. A straightforward question like “if I buy a vanity license plate reading HNK4GOD, am I the one telling people to honk their horn for God or is the state government the one telling people to honk for God?” turns out to depend on which state you happen to live in.
Just a few days ago, a divided panel of the Eleventh Circuit issued a momentous decision on government speech doctrine. According to the two judges in the majority, classroom lectures by public university professors, paid for by the state and delivered to students in accordance with state-mandated curriculum requirements, are the speech of the professors—not the government. As a result, the panel struck down certain provisions of Florida Governor DeSantis’ “Stop W.O.K.E. Act” as unconstitutional. Evidently, a state cannot prohibit its own employees from teaching in a state-sponsored course for credit that, for instance, “[m]embers of one race, color, national origin, or sex are morally superior to members of another,” that “[a] person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for . . . actions, in which the person played no part, committed in the past by other members of the same [group],” or that “[s]uch virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist.” If you happen to have hired a 1930s “race scientist,” you have to let him teach that Aryans are the Übermenschen.
Judge Barbara Lagoa produced a lengthy dissent in defense of Florida’s law, which—unlike the majority opinion—conducts extensive originalist analysis. But, even without these originalist arguments, the dissent also just argues for consistency. If, as the Eleventh Circuit already held in a prior case, the state can prevent a science professor from teaching intelligent design in class, it can prevent a culture studies professor from teaching critical race theory. The First Amendment does not exalt a sacred caste of academics or give them the right to disregard the people’s judgments concerning the proper contents of classroom teaching. Back in 2020, Judge Lagoa was an unsuccessful runner-up for a Supreme Court nomination, losing out to now-Justice Amy Coney Barrett. In light of some recent Supreme Court cases, one wonders if President Trump now regrets not selecting Judge Lagoa instead.
No doubt Florida will petition for certiorari, so this fight may not be over. I hope cert is granted (but I would not bet money on it). Regardless, let me recommend that advocates look into another source of legal authority relevant to this First Amendment debate: early American laws and court rulings about the speech of ministers in established state churches.
Seven states in early America continued to have established state churches for years, if not decades, after the ratification of the federal Constitution. Massachusetts’ establishment endured all the way until 1833. All the “towns, parishes, precincts, and other bodies politic” in Massachusetts were required to “make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality” because “the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality.”
Although the First Amendment was not incorporated against the states until 1868 (a generation after the death of these establishments), virtually all state constitutions guaranteed freedom of the press, freedom of religious exercise, and—slightly less commonly—freedom of speech already in the 1790s. For instance, Massachusetts’ 1780 Constitution, principally drafted by future president John Adams, promised both that “[t]he liberty of the press . . . ought not, therefore, to be restrained in this commonwealth” and that “no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience.”
Tenured university professors are present-day beneficed priests. Establishment ministers in the early Republic were remarkably similar to tenured faculty at state universities today. Both were well-compensated professionals, educated and credentialed for a prestigious learned career, whom the state paid to instruct members of the public in a particular set of state-approved teachings and morals that the government considered essential for the security and stability of the state. “Our Constitution was made only for a moral and religious People,” as Adams famously told the Massachusetts Militia, “[i]t is wholly inadequate to the government of any other.”
Moreover, courts in the early Republic—like courts today—had to resolve how constitutional rights guarantees interacted with the state’s need to regulate the church establishment and discipline misbehaving clergy. If freedom of speech and of the press today protect the right of professors to teach content that the state has banned, these same freedoms already protected the rights of clergymen in the early Republic. Yet no court thought they did.
Consider, for instance, the famous case of Baker v. Fales, 16 Mass. 488 (1820). The parish of Dedham, Massachusetts, had appointed Rev. Alvan Lamson—a vocal Unitarian—to pastor the First Church of Dedham. The actual members of that church, however (unlike the population of the wider parish), were Trinitarians and refused to accept a known heretic as their pastor. The minority—that is, the Unitarians—sued for control of the church property and benefice and won before the Massachusetts Supreme Court. The court held that the inhabitants of the parish had the legal right to choose the pastor, with or without the church’s agreement, because “the doctrines of a minister” have “consequence” even to those who are not church members. Allowing “the churches the power . . . of electing the minister without concurrence of the people” would ruin “the cause of religion,” “public worship,” and “instruction in piety, religion and morality.” Who served as the established minister in a town and what that minister taught were issues that affected the lives of everyone in the parish—even though most of those parishioners did not attend the church—because public worship and morals shape the entire body politic. The only remedy for church members who did not want a Unitarian clergyman was to “institute a new society; so that they are neither obliged to hear nor to pay a minister, in whose settlement they did not concur.”
The Dedham case expressed a particular ecclesiology and conception of political life. It was by no means unique. Early American courts (especially in Massachusetts) repeatedly upheld the right of parishes to fire their established ministers for doctrinal disagreement. In Burr v. Inhabitants of the First Parish, 9 Mass. 277 (1812), for instance, the Massachusetts Supreme Court permitted an Arminian parish to remove Rev. Jonathan Burr (a committed Calvinist) and deny him three years of back wages, even though three-fourths of the church members supported Burr. The court itself “disclaim[ed] all jurisdiction” to decide “questions of dogmatical theology.” It had jurisdiction, however, to enforce the decision of the parish as a whole, for “a parish and church are bodies with different powers.” And the court was not violating the speech or free exercise rights of the pastor or the congregants when it did so.
Another case, Stebbins v. Jennings, 27 Mass. 172 (1830), made clear that the same rules would apply to colleges—meaning, of course, denominational colleges, the only kind that then existed in New England. The fact that many, or even the majority, of Harvardians are “dissatisfied with the theological instruction given them, or for other causes satisfactory to their own consciences” did not enable them to override the decisions of the college or remove themselves “to Amherst College” instead, to hear teaching more favorable to themselves.
And in Barnes v. Inhabitants of the First Parish in Falmouth, 6 Mass. 400 (1810), the Massachusetts Supreme Court upheld the establishment against constitutional challenge and held that the religious taxes assessed on the parishioners of an unincorporated Universalist society could be applied to the established Congregationalist minister rather than paid over to their own Universalist preacher, because that society was not a state-incorporated denomination.
Conscience rights are vitally important. But then, so is the authority of a sovereign people to control their own institutions, their paid officials, their state-approved teachings, and, yes, their government’s speech. Public schools—including universities—are our main collective institutions for inculcating duty and morals. Who teaches and what gets taught affects all of us, even if we would never take a college class or enroll a child in a local elementary school.
During the early Republic, when established churches were the main collective institution, that meant that parishes had the authority to decide who ministered and what dogmas were taught. The constitutionally protected speech rights and conscience rights of the ministers themselves—or even of the majority of the congregants—did not nullify this. Today, those same speech and conscience rights do not and cannot give state university professors a right to be paid to teach whatever heresies they may believe.
