Speak vs. Regulate – The Doctrine of Government Discourse
May 31, 2022
Court decisions and AGO notices
The First Amendment provides broad protections for free speech and places strict limits on the government’s ability to regulate private expression, especially when the regulation discriminates against speakers based on their point of view. On the other hand, the United States 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 case law on government speech, including the Shurtleff v. City of Boston flag-raising case decided by the United States Supreme Court earlier this month, and then I will provide thoughts on how to determine when the government speaks versus when it regulates speech, and what factors make a difference .
Speech of the government Jurisprudence
The flagship case of government discourse is City of Pleasant Grove vs. Pinnacle, a 2009 move that involved exhibitions of sculptures and monuments in a city park. A religious organization has 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 the parks are public forums and that many of the park’s monuments were donated by private entities, held that the monuments were not government speech. He ruled that under the First Amendment, the city was required to allow the installation of the Summum monument.
The Supreme Court overturned. He 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 Town of Pleasant Grove has a detailed submission policy regarding proposals for new park landmarks. The permanent nature of the monuments, coupled with the city’s oversight of the selection process, led the Supreme Court to conclude that the monuments were governmental discourse and therefore the government could decide which monuments to display.
In 2015, the Supreme Court considered whether the state of Texas could refuse a proposal by the Sons of Confederate Veterans (SCV) for a specialized license plate depicting the Confederate battle flag in Walker c. Texas Div., Sons of Confederate Veterans, Inc..
Texas law provides that the state has exclusive control over the design, color, and font of all license plates. There is a specific process by which the state reviews proposal submissions for special license plates designed by private entities, and the state has actively exercised its authority by denying at least a dozen requests in the past. Regarding the design of the SCV plate, 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, not regulation of the speech of others. In doing so, the Supreme Court noted the long-standing use of state slogans and emblems on license plates. According to the majority’s analysis, license plates are a form of government-issued identification and do not constitute a traditional public forum (such as streets or parks) or a limited public forum for expressive purposes. . As a result, the free speech clause did not impact Texas regulation of specialty license plates.
Shurtleff v. City of Boston and raising the flag
There are three flagpoles in a plaza in front of Boston City Hall. The first two display flags of the United States and the State of Massachusetts, and the third usually displays the flag of the city of Boston. However, the city of Boston used to allow outside groups to raise their flags on the third mast while holding events in the plaza below.
A religious organization sought to hold a flag-raising ceremony in the square involving what it described as a “Christian flag”. The city denied the request due to concerns that hoisting a religious flag on a flagpole in the city would violate the Establishment Clause of the First Amendment. (By the way, this concern was misguided – making public facilities available to religious organizations on the same terms as secular organizations does not constitute a governmental establishment of religion.)
The religious organization sued, claiming the refusal was impermissible discrimination of views and a violation of its free speech rights. In response, the City of Boston argued that the decision about which flags will fly above City Hall is government talk.
All the judges agreed that the denial of the request to raise the flag was a violation of the religious organization’s free speech rights and that the raising of the flag, on the facts of the case, was not government speech. To understand why the result of Shurtleff was different from Sum and Walkerit is important to consider the following:
- The city of Boston had no written policy regarding raising the flag. There was no indication of the types of flags that could be raised and what message those flags would communicate.
- For previous events, there was no indication that the city had pre-cleared or even seen the flags being raised.
- There was no indication that an earlier flag raising had been disallowed by the city due to the content of the flag.
The Supreme Court has emphasized the importance of clear and meaningful government speech policies:
[T]The city’s lack of meaningful involvement in the selection of flags or crafting their messages leads us to classify flag raisings as private, nongovernmental speeches — although nothing is stopping Boston from changing its policies at the time. ‘coming.
In other words, the Supreme Court found that the denial of the request to raise the flag was a regulation of speech, not the speech of a government entity. To learn more about displaying the flag specifically, including examples of Washington state local government policies, see our Flag Display Requirements and Protocol webpage.
Takeaways from the government speech
At the MRSC, we often emphasize the importance of written policies and the Shurtleff case is a great example of how clear and detailed policies can make a difference. It’s not just about having written policies, they must be followed and adhered to. This is especially true in government speech situations.
When a court considers a government speech claim, there are generally two options: either the government speech doctrine applies, meaning the matter will not be considered as a restriction on free speech under the freedom of expression clause; or government speech does not apply, in which case the matter will be subject to review under the freedom of speech clause. The dramatic difference between these two options is illustrated by Shurtleff. OSince 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 point of view discrimination under of the freedom of expression clause.
A fundamental characteristic of the doctrine of government discourse is the extent to which its application depends on government policies and actions. Government speech can apply in a wide variety of contexts – park monuments, specialized license plates and flag raising are just a few examples – but it only applies when government takes action to check the message. Change the level of government involvement in the “speech” selection process, and the results of the three cases discussed above could have been different.
MRSC is a private, nonprofit organization serving local governments in Washington State. Eligible Washington State government agencies can use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.