The article is here; the Introduction:
Judge Mark E. Walker, the chief judge for the Northern District of Florida, opened his recent ruling in Pernell v. Florida Board of Governors with a nod to George Orwell’s dystopian novel 1984. In his opinion, Walker wrote: “’It was a bright cold day in April, and the clocks were striking thirteen,’” and he noted that the authorities charged with administering Florida’s public university system have claimed that the State possesses unlimited power to silence its professors in the name of “freedom.” The instrument at issue was Florida’s Individual Freedom Act (IFA). Initially introduced as the “Stop W.O.K.E. Act,” the law bars “training or instruction that espouses, promotes, advances, inculcates, or compels … students or employees to believe [eight specified concepts].” Among the forbidden notions are the proposition that “[a] person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion,” and that “[a] person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.”
By drawing attention to the law’s Orwellian dimensions—including its name, which Walker characterizes as a quintessential example of “doublespeak,” and to the supporters’ insistence that it safeguards freedom by curtailing speech—Walker touched a foundational tension within the cultural and political landscape from which the IFA arose. The measure grows out of a movement that treats much of the public knowledge sector, especially higher education funded by the state, as left-leaning and indoctrinating. It also leans on a populist sensibility that draws a line between its supporters—“the people”—and those who would attempt to indoctrinate them. From this vantage, state oversight of pedagogical speech is the opposite of censorship by being a form of freedom, delivering ordinary students and their parents from supposed brainwashing by the dominant, overbearing others.
The IFA’s proponents also lean on a legal argument that mirrors their political and cultural rhetoric: States operate beyond the reach of the First Amendment when they limit pedagogical speech in public schools because that speech is a product of the state and, through the state, belongs to the people. The public voice is therefore expressed, not restricted, through such statutes. This argument—central to the IFA’s defense in First Amendment challenges—embodies a broad interpretation of a line of judicial doctrine known as the government speech doctrine. This doctrine embodies the idea that when the government uses its personnel or underwrites private speakers to convey the government’s own message, the First Amendment does not constrain the resulting speech; the government may impose whatever limits it sees fit on it.
The IFA is one among hundreds of state and local measures enacted since 2020 aimed at restricting classroom instruction about race and gender in public schools (the essay refers to these as “pedagogical gag laws”). Although most of these statutes apply to K–12 schools, a notable share also targets public colleges and universities. The same broader movement that produced these actions has extended its reach to public school libraries as well. PEN America notes a marked increase, beginning in 2021, in removals and restrictions of access to library books based on content, driven by pressures from parents or communities, administrative decisions, or direct or threatened actions by lawmakers or government officials. In the 2022–2023 academic year, individual and collective challenges to book titles were amplified by a new kind of state pressure: legislation that restricts the types of books available in public school libraries to students (often described as “book removal laws”).
These measures are fueled by the same rhetoric of liberty and populism that animates the IFA, and their proponents have advanced similar government-speech arguments in the litigation—arguments that echo those deployed by the IFA’s advocates. A careful examination of this discourse and these claims reveals the shared logic and the risks they pose, as well as how closely they interrelate. Indeed, a major hazard of an unbounded government-speech doctrine is that it could confer constitutional legitimacy on a form of doublespeak, enabling the state to curb public-knowledge institutions—such as public schools or libraries—that are foundational to public discourse. For instance, legislation that requires public school science teachers to disavow agreement with the scientific method or with the theory of evolution while on the job would distort the very enterprise it purports to furnish—science education. Such distortion leverages the norms and perceived legitimacy of a discipline to sanitize government messaging, giving the impression that it is something more than a political directive. The result is a distortion of public knowledge and debate in service of official state messaging and a weakening of free speech’s core function in the United States: to empower self-government through an informed and capable citizenry.
Nevertheless, there exists a path to curtail the reach of the government-speech doctrine when its effects would be distortive, a path that can be traced to existing judicial precedent. I describe this approach as the anti-distortion principle. It is a cautious stance toward state-imposed conditions on public-knowledge programs that would warp their essential character or communicative outputs. For example, the Supreme Court has held that states may designate speech forums and specify that those forums serve only particular ends. When a state does so, it must nonetheless honor the lawful boundaries it has itself established. The State may not exclude speech where its distinction is not “reasonable in light of the purpose set by the forum,” nor may it discriminate against speech on the basis of viewpoint. Likewise, in assessing the constitutionality of federal funding conditions applied to public libraries, the Supreme Court has weighed these conditions against the ordinary practices followed by libraries and librarians.
In this essay, I use ongoing litigation involving three pieces of state legislation—the IFA, a New Hampshire pedagogical gag law, and an Iowa book-removal statute—as springboards for examining the public discourse that supports such laws, their connection to the government-speech arguments advanced by the defendants in their respective lawsuits, and the perils that these arguments reveal about an overly expansive government-speech doctrine. I also examine the anti-distortion principle as a limiting concept on the reach of the government-speech doctrine and as a potential remedy against these hazards.
In Part I, I place the recent surge of pedagogical gag laws and book-removal measures within a broader movement—a movement rooted in a history of right-wing populist hostility toward public education, framed in terms of liberty and democracy. In Part II, I provide a concise survey of the principal judicial precedents concerning government-speech doctrine, with particular emphasis on cases involving educational institutions. In Part III, I discuss judicial decisions that bear the imprint of an anti-distortion principle, again focusing on precedents involving schools and libraries. In Part IV, I discuss ongoing litigation concerning three exemplars of state educational-suppression laws—one from Florida, one from New Hampshire, and one from Iowa—and I concentrate on the government-speech arguments raised and the responses offered in these cases. In Part V, I draw on the cases examined in Parts III and IV to consider how we might strengthen and extend anti-distortion reasoning to rein in government-speech doctrine in the future.
