Speaking Versus Regulating — The Government Speech Doctrine
The First Amendment provides broad protection of freedom of speech and places stringent limits on the ability of government to regulate private expression, especially when the regulation discriminates against speakers based on their viewpoint. On the other hand, the U.S. Supreme Court (Supreme Court) uses a different analysis for “government speech,” which applies when government “speaks” instead of regulates. Government entities need to be able to communicate, so it makes sense that government speech is analyzed differently than government regulation of the speech of others — but it is not always easy to tell which is which.
In this blog I will review recent government speech case law, including the Shurtleff v. City of Boston flag raising case decided by the U.S. Supreme Court earlier this month, and then I will provide thoughts on how to determine when government is speaking versus when it is regulating speech, and what factors make a difference.
Government Speech Case Law
The seminal government speech case is City of Pleasant Grove v. Summum, a 2009 decision which involved sculpture and monument displays in a city park. A religious organization requested permission to erect a stone monument containing the “Seven Aphorisms of Summum” that would be similar in size to an existing Ten Commandments monument in the park. A lower court, noting that parks are public forums and many of the monuments in the park were donated by private entities, held that the monuments were not government speech. It ruled that under the First Amendment, the city was required to allow installation of the Summum monument.
The Supreme Court reversed. It noted that while parks themselves are public forums, the display of monuments in parks is likely to be associated with the city. Even when a monument is donated, municipalities typically exercise control over what is displayed through submission requirements, policies, and legislative approval of specific proposals. The City of Pleasant Grove applied a detailed submission policy with respect to proposals for new park monuments. The permanent nature of monuments, coupled with the city’s oversight over the selection process, led the Supreme Court to conclude that the monuments were government speech, and therefore, the government could decide which monuments to display.
In 2015, the Supreme Court considered whether the State of Texas could deny a proposal by the Sons of Confederate Veterans (SCV) for a specialty license plate that depicted the Confederate battle flag in Walker v. Texas Div., Sons of Confederate Veterans, Inc.
Texas law provides that the state has sole control over the design, color, and typeface of all license plates. There is a specific process by which the state reviews submittals of proposed specialty license plates designed by private entities, and the state had actively exercised its authority by denying at least a dozen requests in the past. With respect to the SCV plate design, the state denied it because many members of the public would find it offensive.
The Supreme Court ruled that Texas’ role in approving specialty license plate designs was government speech and not regulation of the speech of others. In so doing, the Supreme Court noted the longstanding use of state slogans and emblems on license plates. Under the majority’s analysis, license plates are a form of government-issued identification and do not constitute a traditional public forum (like streets or parks) or a limited public forum for the purpose of expression. As a result, the Free Speech Clause did not impact Texas’ regulation of specialty license plates.
Shurtleff v. City of Boston and Flag Raising
There are three flagpoles in a plaza in front of Boston City Hall. The first two display flags from the United States and the State of Massachusetts and the third generally displays the flag of the City of Boston. However, the City of Boston had a practice of allowing outside groups to raise their flags on the third flagpole while holding events in the plaza below.
A religious organization sought to hold a flag raising ceremony in the plaza involving what it described as a “Christian flag.” The city denied the request due to concerns that raising a religious flag on a city flagpole would violate the Establishment Clause of the First Amendment. (As an aside, this concern was in error — making public facilities available to religious organizations on the same terms and conditions as secular organizations does not constitute government establishment of religion.)
The religious organization sued, claiming that the denial was impermissible viewpoint discrimination and a violation of its free speech rights. In response, the City of Boston argued the decision of what flags will fly over city hall is government speech.
All the justices agreed that the denial of the flag raising request was a violation of the religious organization’s free speech rights and that the flag raising, under the facts of the case, was not government speech. To understand why the result of Shurtleff was different from Summum and Walker, it is important to consider the following:
- The City of Boston did not have a written policy that addressed flag raising. There was no guidance about what types of flags could be raised and what message those flags would communicate.
- For previous events, there was no indication that the city pre-authorized or had even seen the flags to be raised.
- There was no indication that a prior flag raising event had been denied by the city based on the content of the flag.
The Supreme Court emphasized the importance of clear and meaningful policies when it comes to government speech:
[T]he city's lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech — though nothing prevents Boston from changing its policies going forward.
In other words, the Supreme Court found the denial of the flag raising request was regulation of speech, and not speech by a government entity. For more on flag display in particular, including policy examples from Washington State local governments, see our Flag Display webpage.
Government Speech Takeaways
At MRSC, we often emphasize the importance of written policies, and the Shurtleff case is a prime example of how clear and detailed policies can make a difference. It is not just a question of having written policies, they need to be followed and adhered to. This is particularly true in government speech situations.
When a court reviews a claim of government speech, there are generally two options: either the government speech doctrine applies, which means that the issue will not be reviewed as a restriction on speech under the Free Speech Clause; or government speech does not apply, in which case the issue will be subject to Free Speech Clause scrutiny. The dramatic difference between these two options is illustrated by Shurtleff. Once the Supreme Court found that the government speech doctrine did not apply, it needed a single paragraph to conclude that Boston’s denial of the flag raising request was impermissible viewpoint discrimination under the Free Speech Clause.
A fundamental characteristic of the government speech doctrine is the extent to which its application depends on the policies and actions of government. Government speech can apply in a wide variety of contexts — park monuments, specialty license plates, and flag raising are just a few examples — but it only applies when government takes steps to control the message. Change the level of government involvement in the ‘speech’ selection process, and the results of all three cases discussed above could have been different.
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