The distinction between private expression and government speech is fundamental to First Amendment jurisprudence. As the Supreme Court has held repeatedly, the government must be viewpoint-neutral when it regulates private expression, but not when it engages in speech of its own. For example, a public school cannot prohibit students from expressing anti-war views, but the government is free to propagate its own messages in support of a war effort without any need to simultaneously promote pacifism. Yet despite the doctrinal significance of the distinction between private expression and government speech, the line that separates these two categories is often quite fuzzy. A private billboard is clearly private expression, and the Lincoln Memorial is paradigmatic government speech, but what about a temporary privately donated exhibit in a state capitol? Privately produced visitors’ guides at a state highway rest area? A state university name and logo on a student group’s T-shirt? These are a few of the scenarios federal courts have wrestled with in recent cases.

To identify government speech in close cases, the Supreme Court has placed increasing emphasis on whether members of the public reasonably perceive the relevant expression to be private or government speech. As explained below, we think this turn toward public perception is a welcome development. But the Court has so far failed to develop a reliable method for determining how ordinary citizens distinguish between private and government messages.

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