The Government Speech Doctrine.

As an outgrowth of the government subsidy cases, such as Rust v. Sullivan,1053 the Court has established the “government speech doctrine” that recognizes that a government entity “is entitled to say what it wishes”1054 and to select the views that it wants to express.1055 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.1056 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.1057 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.1058 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;1059 (2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;1060 (3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;1061 (4) a city’s decision to reject a monument for placement in a public park;1062 and (5) a state’s decision to reject a design for a specialty license plate for an automobile.1063

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.1064 Four years later, 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.”1065 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.1066 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.1067 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.1068

More recently, in Matal v. Tam, the Supreme Court held 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.”1069 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.”1070 First, the Court noted that, unlike license plates, trademarks do not have a history of use to convey messages by the government1071 . 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.”1072 And third, the public, according to the Tam Court, does not closely identify trademarks with the government.1073 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.

Footnotes

1053
500 U.S. 173 (1991). [Back to text]
1054
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). [Back to text]
1055
Id. at 833. [Back to text]
1056
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, it is important to note that 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 to text]
1057
See id. at 468 (“Indeed, it is not easy to imagine how government could function if it lacked this freedom.”). [Back to text]
1058
See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 562 (2005). [Back to text]
1059
See Rust, 500 U.S. at 194. [Back to text]
1060
See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006). [Back to text]
1061
See Livestock Mktg. Ass’n, 544 U.S. at 562. [Back to text]
1062
See Pleasant Grove City, 555 U.S. at 472. [Back to text]
1063
See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, No. 14–144, slip op. at 1 (2015). [Back to text]
1064
See Livestock Mktg. Ass’n, 544 U.S. at 560. [Back to text]
1065
See Pleasant Grove City, 555 U.S. at 470. [Back to text]
1066
Id. at 470–73. [Back to text]
1067
See Walker, slip op. at 1. [Back to text]
1068
See id. at 7–12. [Back to text]
1069
582 U.S. ___, No. 15–1293, slip op. at 14 (2017). [Back to text]
1070
Id. at 17–18 (“Trademarks are private, not government, speech.”). [Back to text]
1071
Id. [Back to text]
1072
Id. at 2. [Back to text]
1073
Id. at 17 (quoting Walker, 576 U.S. at ___, slip op. at 10). [Back to text]