Amdt1.3.5.2 Government Speech and Government as Speaker

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As an outgrowth of the government subsidy cases, such as Rust v. Sullivan,1 the Court has established the “government speech doctrine” that recognizes that a government entity “is entitled to say what it wishes” 2 and to select the views that it wants to express.3 In this vein, when the government speaks, the government is not barred by the Free Speech Clause of the First Amendment from determining the content of what it says and can engage in viewpoint discrimination.4 The underlying rationale for the government speech doctrine is that the government could not “function” if the government could not favor or disfavor points of view in enforcing a program.5 And the Supreme Court has recognized that the government speech doctrine even extends to when the government receives private assistance in helping deliver a government controlled message.6 As a consequence, the Court, relying on the government speech doctrine, has rejected First Amendment challenges to (1) regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion;7 (2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;8 (3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;9 (4) a city’s decision to reject a monument for placement in a public park;10 and (5) a state’s decision to reject a design for a specialty license plate for an automobile.11

A central issue prompted by the government speech doctrine is determining when speech is that of the government, which can be difficult when the government utilizes or relies on private parties to relay a particular message. In Johanns v. Livestock Marketing Association, the Court held that the First Amendment did not prohibit the compelled subsidization of advertisements promoting the sale of beef because the underlying message of the advertisements was “effectively controlled” by the government.12

The line can also be blurred when “a government invites the people to participate in a program,” such as when the government opens up its property for use by private speakers.13 In Pleasant Grove City v. Summum, the Court shifted from an exclusive focus on the “effective control” test in holding that “permanent monuments displayed on public property,” even when provided by private parties, generally “represent government speech.” 14 In so concluding, the Court relied not only on the fact that a government, in selecting monuments for display in a park, generally exercises “effective control” and has “final approval authority” over the monument, but also on (1) the government’s long history of “us[ing] monuments to speak for the public” ; and (2) the public’s common understanding as to monuments and their role in conveying a message from the government.15 In Walker v. Texas Division, Sons of Confederate Veterans, the Court relied on the same analysis used in Pleasant Grove City to conclude that the State of Texas, in approving privately crafted designs for specialty license plates, could reject designs the state found offensive without running afoul of the Free Speech Clause.16 Specifically, the Walker Court held that license plate designs amounted to government speech because (1) states historically used license plates to convey government messages; (2) the public closely identifies license plate designs with the state; and (3) the State of Texas maintained effective control over the messages conveyed on its specialty license plates.17

By contrast, in Shurtleff v. Boston, the Supreme Court concluded that private flags flown at a city hall plaza did not qualify as government speech.18 While “the history of flag flying. . .at the seat of government” suggested such flags usually conveyed governmental messages, other factors specific to the city program pointed the other way.19 Given that the city sometimes flew its own flags but regularly let private groups use the flagpole, the Court suggested the evidence was inconclusive on public perceptions.20 The critical inquiry was government control: the Court concluded that the city exercised no active control over the flag raisings or the messages of the flags.21 While the city might have exercised control over scheduling or physical maintenance, there was no evidence it had ever reviewed the flags or denied a group’s request, prior to the denial that formed the basis of the lawsuit.22 Accordingly, while Shurtleff looked to multiple factors to analyze whether the flags were government speech, effective control was “the most salient” factor in the case.23

In 2017’s Matal v. Tam, the Supreme Court looked at a different type of activity to hold that trademarks do not constitute government speech, concluding that it is “far-fetched to suggest that the content of a registered mark is government speech.” 24 The Court distinguished trademarks from the license plates at issue in Walker, a case the Court stated “likely marks the outer bounds of the government-speech doctrine.” 25 First, the Court noted that, unlike license plates, trademarks do not have a history of use to convey messages by the government.26 Second, the Court further reasoned that the government does not maintain direct control over the messages conveyed in trademarks—indeed, “[t]he Federal Government does not dream up these marks, and it does not edit marks submitted for registration.” 27 And third, the public, according to the Tam Court, does not closely identify trademarks with the government.28 Thus, while Tam demonstrates the Court’s continuing reliance on the multi-factor test for determining government speech from Walker and Summum, that test is not so flexible as to allow for expression like trademarks to be deemed the speech of the government.

In both Shurtleff and Tam, the Supreme Court held that because the flags and trademarks were not government speech, the government had acted unconstitutionally by creating viewpoint-based distinctions.29 In Shurtleff, the Court noted that the city had made the plaza with the flagpole available to the public and had itself described that plaza as a public forum.30 Accordingly, after ruling that the flags were “private, not government, speech,” the Court held that the city had violated the Free Speech Clause by excluding a flag based on its religious viewpoint.31 Although the Court’s opinions in Tam did not clearly agree on whether public forum analysis applied,32 a majority nonetheless ruled that the federal law barring disparaging trademarks entailed unconstitutional viewpoint discrimination.33

Footnotes
1
500 U.S. 173 (1991). back
2
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). back
3
Id. at 833. Accord, e.g., Shurtleff v. Boston, No. 20-1800 (U.S. May 2, 2022). back
4
See Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009). Nonetheless, while the First Amendment’s Free Speech Clause has no applicability with regard to government speech, other constitutional provisions—such as the Equal Protection principles of the Fifth and Fourteenth Amendments—may constrain what the government can say. Id. at 468–69. back
5
See id. at 468 ( “Indeed, it is not easy to imagine how government could function if it lacked this freedom.” ). back
6
See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 562 (2005). back
7
See Rust, 500 U.S. at 194. back
8
See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006). back
9
See Livestock Mktg. Ass’n, 544 U.S. at 562. back
10
See Pleasant Grove City, 555 U.S. at 472. back
11
See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 203 (2015). back
12
See Livestock Mktg. Ass’n, 544 U.S. at 560. back
13
Shurtleff v. Boston, No. 20-1800, slip op. at 5 (U.S. May 2, 2022). In this context, the government speech doctrine sometimes overlaps with the public forum doctrine, discussed supra Amdt1.3.7.1 The Public Forum, in determining whether the speech is governmental or private. back
14
See Pleasant Grove City, 555 U.S. at 470. back
15
Id. at 470–73. back
16
See Walker, 576 U.S. at 203–04. back
17
See id. at 210–13. Accord Shurtleff, slip op. at 6 ( “Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.” ). back
18
Shurtleff, slip op. at 12. back
19
Id. at 7–9. back
20
Id. at 9. back
21
Id. back
22
Id. at 10–11. back
23
Id. at 10. back
24
Matal v. Tam, No. 15-1293, slip op. at 14 (U.S. June 19, 2017). back
25
Id. at 17–18 ( “Trademarks are private, not government, speech.” ) back
26
Id. back
27
Id. at 2. back
28
Id. at 17. back
29
Shurtleff v. Boston, No. 20-1800, slip op. at 2 (U.S. May 2, 2022); Tam, slip op. at 22 (plurality opinion); id. at 1 (Kennedy, J., concurring). back
30
Shurtleff, slip op. at 3; see also id. at 2 (describing the legal question as whether the flagpole was government speech or instead open for citizens’ views). back
31
Id. at 12. back
32
Cf. Tam, slip op. at 22 (plurality opinion) (saying limited public forum cases were “potentially. . .analogous” ). back
33
Id.; id. at 1 (Kennedy, J., concurring). back