GOVERNMENT SPEECH DOCTRINE
League of California Cities
Presented by:
Randal Morrison
(Sabine & Morrison)
Gerald C. Hicks
(Supervising Deputy City Attorney – Sacramento)
1st AMENDMENT
Free Speech Clause
“Congress shall make no law . . .
abridging the freedom of speech.”
Ratified in 1791
Slide 2
Big Picture Trend
 Public Forum doctrine is in decline
 Government Speech doctrine is ascending
 Public Forum: remedy is in the courthouse
• Based on egalitarian ideal
• Court (non-political branch) reviews specific facts, law
for each case
Slide 3
Big Picture Trend (continued)
 Government Speech: remedy is the ballot box
• Based on ideal of representative democracy
• How do we know when government is speaking?
 Almost all candidate votes are compromises
• Votes rarely address facts, law of individual disputes
• No perfect candidate; once in office, most elected
representative go through evolution, modify some
campaign positions
Slide 4
Public Forum Doctrine – Traditional
Public Forum
 Private speech on government property or facilities
 Traditional Public Forum
•
Surface of of streets, parks, sidewalks (inc. residential districts), area around city hall,
state legislature
•
NOT Traditional Public Forum: utility poles, airspace above parks, street furniture
•
Here, city must allow live, in person picketing and protesting (US v Grace – sidewalks
around US Supreme Court bldg; Boos v Barry – Embassy Row WDC)
•
Some courts say inanimate signs can be banned even in Traditional Public Forum
areas (Sussli v San Mateo)
•
No requirement to allow commercial speech or activities in Traditional Public Forum
areas
Slide 5
Designated Public Forum
 No constitutional duty to designate Public Forum
 Most cases: if a public forum is designated, then
the rules are the same as Traditional Public
Forum
 Some courts complain about murkiness between
Designated Public Forum and Limited (NonPublic) Forum
Slide 6
DEVELOPMENT OF GOVERNMENTAL
SPEECH DOCTRINE
 Rust v. Sullivan (1991)
 Rosenberger v. University of Virginia (1995)
 Board of Regents v. Southworth (2000)
 Legal Services v. Velazquez (2001)
 USDA v. United Foods (2001)
 Johanns v. Livestock Marketing Association (2005)
 Pleasant Grove City v. Summum (2009)
Slide 7
Bright Lines and Mass Confusion
 Bright Line: Selection of books and media materials for public
libraries and public schools is government speech; dissenters have
no right to demand removal or addition
• Inclusion of materials in a public access collection does not necessarily
mean endorsement
 Bright Line: The Establishment Clause is the only constitutional limit
on government speech
• But state statutes can add more limits
• Establishment Clause analysis is highly fact specific
 Mass Confusion: Are custom license plates government speech or
private speech?
Slide 8
Establishment Clause
 Most common test: Lemon v. Kurtzman.
Government action must:
• Have a secular purpose (government intent)
• Main effect: neither advances nor inhibits religion (does
not convey endorsement or disapproval)
• Not foster excessive entanglement of religions and
government
 If any element fails, then we have a violation of the
Establishment Clause
Slide 9
City Seals and Symbols
Slide 10
Bernalillo County NM (Albuquerque)
Original County Seal
Current County Seal
Slide 11
Constitutional Provisions
 Federal: Establishment Clause of First Amendment:
“Congress shall make no law respecting an
establishment of religion. . .”
 New Mexico State Constitution: “No person shall be
required to attend any place of worship or support
any religious sect or denomination; nor shall any
preference be given by law to any religious
denomination or mode of worship.”
Slide 12
Meaning of the Original Seal
 Conflicting testimony on history, symbolism
 Sheep beneath cross
• Jesus as shepherd of the flock?
• Importance of sheep raising in local economy?
 Text: “With this we conquer,” or “With this we
overcome”?
• Refer to Spanish conquistadors converting Natives to
Christianity by force?
Slide 13
Analysis – Bernalillo Seal
 Courts must be wary of after-the-fact justifications
 Secular purpose: no evidence of original purpose
 Effect: Strong evidence that average observers thought the seal was
government advertising the Catholic faith
• “Main effect” test – fail
• Symbolic oppression of Jews, Moslems, Protestants, Natives
• Pervasive, long-term use
 Seal violates Establishment Clause and State Constitution
 Friedman v Bd of County Commissioners
Slide 14
Contrast: Seal of Austin TX
Slide 15
M urray v. Austin TX
 1916 City Council chose a design that was an adaption
of the family coat of arms of Stephen Austin, highly
revered “Father of Texas”
 Design solicitation sought only “artistic merit”, made no
mention of cross or Christianity, suggested some possible
symbols of the City
 Adopting resolution did not mention the cross. It
mentioned Austin family coat of arms; lamp signifies
knowledge & education
 All viewers will see a Christian cross
Slide 16
Analysis – Austin Seal
 Insignia, taken as a whole, does not have the primary effect of advancing
or impeding religion
 Rather, it identifies city activity, property, promotes Austin’s unique role &
history
 Effect of religious symbols depends on context
 Austin: no Establishment Clause violation
 Not contrary to Friedman – different result only shows that Establishment
cases often turn on subtle nuances, small differences in facts
 There is no simple, bright line rule for religious symbols in government
seals, flags
Slide 17
Take Home Lesson – City Seals
 Safe answer: NO religious images in City seal
 OR – be prepared to defend religious symbols with detailed, fact-specific
analysis by court
 Context: is the symbol given prominence?
 Lemon test:
•
1) actual intent at time of adoption
•
2) actual effect, especially on non-believers
•
3) entanglement of government and religion
 LA County got sued for removing cross from seal
•
case dismissed (Vasquez v LA Cnty)
Slide 18
Gov’t Speech: Public Art
PETA v Gittens
Slide 19
Party Animals – Wash. DC Public Art
 Largest public art project in the history of the District of Columbia –
100 of each animal
 Invited submissions for decorated animals
 Showcase the “whimsical and imaginative side of the Nation's
Capital” “for artwork that is dynamic and invites discovery,” “original
and creative,” “durable” and “safe”
 No “direct advertising of any product, service, a company name, or
social disrespect,” “restrictions against slogans and inappropriate
images”
Slide 20
PETA’S Proposals
 First proposal (on an elephant): “The CIRCUS is Coming See:
Torture Starvation Humiliation All Under the Big Top” -Rejected
 New proposals: a happy circus elephant (accepted) and a sad,
shackled circus elephant (rejected)
 Last submission: shackled elephant crying, with a sign: “The
Circus is coming. See SHACKLES-BULL HOOKS-LONELINESS.
All under the ‘Big Top.’
 Rejected -- single issue – political not art – inconsistent with
light whimsical theme
Slide 21
PETA – Court Decision
 Here, city government spoke by accepting some sponsored
animals, rejecting others
 Editorial discretion is a kind of speech
 Public Forum principles do not apply here
 This is the city’s public art project, and it can decide which
private speech to admit
Slide 22
Government Speech – Public Art
New ton v. LePage , Governor of Maine
 Governor ordered removal of a series of murals depicting history of
organized labor in the State of Maine from State Dept. of Labor
Bldg.
 Labor reps protested, sought court order
 Holding: The governor's removal of a mural . . . may strike some as
state censorship; instead, it is a constitutionally permissible exercise
of gubernatorial authority. The resolution of this vigorous debate
rests with the people of the state of Maine electing their leaders.
Slide 23
Public Art – Designated Forum
Contrast: Hopper v. Pasco W A
 City Manager invited local artists to display their works on
walls of new city hall
 Invitation: Wide open, but with the restraints that would be
accepted with a public arts project paid for with public money
 No pre-screening, no guidance, no art jury
 Earlier displays had shown nudity
 Certain works excluded as “too controversial”
• Nudity shown, but obscene or pornographic
Slide 24
Hopper v. P asco
 Designated public forum – strict scrutiny
 Limited or non-public forum – reasonableness
• Consistent application is the key to keeping Limited Public Forum
• Here, nudity shown earlier but excluded this time
• Claimed policy of “noncontroversial only” was not consistently applied
• Thus, this is a designated forum case
 City could have avoided this problem by establishing and enforcing a
clearly articulated policy that would pass First Amendment muster
Slide 25
Monuments
Texas State Capital Grounds
Slide 26
Van Orden v. P erry
 Ten Commandment monument at Texas State Capital
 Lemon test not appropriate for passive monument
 Look to nature of monument in light of nation’s history
 Typical of official recognition of role of religion in nation’s
history
 One of many monuments in the same display
 No violation of Establishment Clause
Slide 27
Must City Treat All Religions Alike?
All or None?
Slide 28
P leasant Grove UT v. Sum m um
 New religion using ancient Egypt iconography
 7 Aphorisms (based on Kybalion, 1908):
•
Universe is a mental creation
•
As above, so below
•
Nothing rests; everything moves
•
Everything is dual
•
Everything flows in and out
•
Causation: everything happens according to law
•
Gender manifests in all levels
Slide 29
Sum m um Decision
 Private donation of permanent monument, once accepted,
became government speech
 Free Speech does not apply
 “If the citizenry objects, newly elected officials later could
espouse some different or contrary position.” (Remedy: ballot
box)
 Permanent monuments displayed on public property typically
represent government speech
 Governments have long used monuments to speak to the
public
Slide 30
Distinguishing Summum?
ACLU v. Dix ie County FL
 The
Slide 31
ACLU v. Dix ie County FL
 Six ton granite monument, prominently positioned at top of main
entry stairs to courthouse, center of passageway, recited 10
Commandments and said “LOVE GOD AND KEEP HIS
COMMANDMENTS”
 Privately donated monument became government speech, subject
to Establishment Clause
 Actual effect: to reasonable observer, government is espousing
particular religious view
 Establishment Clause violation found; fee award: $144,000
Slide 32
Gov’t Websites – Links as fora
 Putnam Pit v. Cookeville TN
• Cal-based operator of “watchdog” website critical of city
admin requested link from city’s website to his; denied
• Hyperlinks created nonpublic forum
• Remand: was link refusal viewpoint based?
Slide 33
Gov’t Websites (continued)
 Page v. Lexington County School District
• On its website, and other media, School District opposed bill
pending in Legislature regarding tax credits for private and home
schooling
• Opponent sought “equal access” to campaign
• Held: this is government speech, no right of access to District’s
systems
 Sutliffe v. Epping School District
• School district could seek out other websites with supportive
points of view, and selectively link to them only
Slide 34
Website Lessons
 Safest route: no links at all
 Also safe: link only to other government websites
 If linking to non-government websites, develop official policy
and consistently enforce it
 Actual pattern of practice usually defeats statements of policy
 Opening a website (or social media accounts) to comments
from anyone will probably create some kind of forum
Slide 35
Statutory Ban on Certain Gov’t Speech
 In California, local governments may not expend
public money to encourage a certain vote in an
election, without specific statutory authority to do
so.
 Cal. Gov’t Code § 54964, Stanson v. Mott (1976),
Miller v. California Commission on the Status of
Women (1984)
 Any such expenditures are reportable to the FPPC.
Cal. Gov’t Code § 84203.5
Slide 36
Free Speech Rights
of Public Employees
 Garcetti v. Ceballos
• DA spoke in official capacity when writing memo; 1st
Amendment did not insulate him from discipline
 Hostkoetter v. Dept. Public Safety
• Highway Patrol officer had no right to display political signs in his
front yard, in violation of department policy; rule could not be
enforced against his wife on jointly owned property
 Filarsky v. Delia (US Supreme, April 17, 2012)
• Specially retained outside counsel have the same right to seek
qualified immunity as full time employees of gov’t
Slide 37
Public School Teachers
 Johnson v Poway Unified
• Public school math teacher did not have 1st Amendment
right to plaster his class room with large posters promoting
his view of role of God and religion in US history
• No Establishment Clause violation in District’s order to
remove the posters
• When “the government acts as both sovereign and
employer, this general forum-based analysis does not
apply”
Slide 38
Legislative Prayer
 Marsh v. Chambers
• Opening legislative day with prayer was not an
Establishment Clause violation
• Seeking divine guidance is not an establishment
• Tolerable recognition of widely held belief
 Rubin v. Burbank
• Invocation ended “in the name of Jesus Christ”
• Marsh applies only to nonsectarian prayer
Slide 39
Legislative Prayer (cont’d)
 Turner v Fredericksburg VA
• Requirement that legislative prayer be non-denominational was
not an Establishment violation
 Simpson v Chesterfield County
• Priestess of Wicca, “monotheistic witch who believes in the
Goddess” challenged rule allowing only clerics in
Judeo-Christian/monotheistic tradition to offer prayer
• Legislative prayer is government speech, only Establishment
Clause applies
• Establishment Clause claim rejected, remand for dismissal
Slide 40
Case Citations
Traditional Public Forum Areas
U.S. v. Grace, 461 U.S. 171 (1983) (public sidewalks
around U.S. Supreme Court Bldg.)
Boos v. Barry, 485 U.S. 312 (1988)
(Embassy Row DC)
Sussli v. San Mateo, 120 Cal.App.3d 1 (1981)
(inanimate signs on public property)
Frisby v. Schultz, 487 U.S. 474 (1988)
(sidewalks in residential areas are TPF)
U.S. v. Kokinda, 497 U.S. 720 (1990)
(to qualify as TPF, sidewalk must be connected to
main pedestrian circulation system of city)
Development of Gov’t Speech Doctrine
Rust v. Sullivan, 500 U.S. 173 (1991)
(earliest clear reference to gov’t speech)
Rosenberger v. Rector and Visitors of the University of
Virginia, 515 U.S. 819 (1995) (funding of religious
student groups)
Board of Regents of University of Wisconsin System v.
Southworth, 529 US 217 (2000) (mandatory student
activity fee)
Legal Servicies Corp. v. Velazquez, 531 U.S. 533 (2001)
(funding of Legal Services Corp.)
USDA v. United Foods, 533 U.S. 405 (2001)
(mushroom promotion)
Johanns v. Livestock Marketing Ass’n, 544 U.S. 550
(2005) (mandatory contributions to Beef
Promotion)
Pleasant Grove City, Utah v. Summum, 555 U.S. 460
(2009) (permanent monument in city park)
Slide 41
Case Citations
Establishment Clause
Lemon v. Kurtzman, 411 U.S. 192 (1973)
(“standard test” for Establishment Clause)
Friedman v. Board of County Commissioners, Bernalillo
County NM, 781 F.2d 777 (10th Cir., 1985)
(county seal with cross–EC violation)
Murray v. Austin TX, 947 F.2d 147 (5th Cir. 1991)
(city seal with cross–No EC violation)
Vasquez v. Los Angeles County, 487 F.3d 1246
(9th Cir. 2007) (removal of cross from county seal)
Lynch v. Donnelly, 465 U.S. 668 (1984)
(Nativity scene in city’s Christmas display)
Monuments on Gov’t Property
Van Orden v. Perry, Governor of Texas,
545 U.S. 677 (2005) (Ten Commandments Monument
on grounds of TX State Capital–No EC violation)
Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009)
(permanent Ten Commandments monument in
city park–No duty to accept other monuments)
ACLU Florida v. Dixie County, 797 FS2d 1280 (USDC FL, July
15, 2011) (Ten Commandments at entrance to court
house–EC violation)
Public Art Projects
People for the Ethical Treatment of Animals v. Gittens
396 F.3d 416 (DC Cir. 2005) (“party animals” project in DC)
Newton v. LePage, 2012 WL 1005021, U.S.D.C. Maine
(removal of art murals from State Dept. of Labor Bldg.)
Hopper v. Pasco, 241 F.3d 1067 (9th Cir. 2001)
(invitation to local artists to display works on walls of
new city hall)
Slide 42
Case Citations
Government Websites
Putnam Pit v. Cookeville TN, 221 F.3d 834 (6th Cir. 2000)
(links on city website as a public forum)
Page v. Lexington County School Dist. One, 531 F.3d 275
(4th Cir. 2008) (School Dist. website advocating
position on pending state legislation)
Sutliffe v. Epping School Dist., 584 F.3d 314
(1st Cir. 2009) (District website linked only to
supportive websites)
Free Speech Rights of Public Employees
Garcetti v. Ceballos, 547 U.S. 410 (2006)
(When speaking in official capacity, DA did not have
free speech rights of citizens.)
Horstkoetter v. Dept. of Public Safety, 159 F.3d 1265
(10th Cir. 1998) (Highway Patrol Officer’s sign display
rights at his home)
Filarsky v. Delia, 2012 WL 1288731, 12 Cal.Daily.Op.Svc.
4133, 2012 Daily Journal DAR 4777 (U.S. Supreme
April 17, 2012) (right of special counsel to seek
qualified immunity on same grounds as gov’t
employees)
Legislative Prayer
Marsh v. Chambers, 463 U.S. 783 (1983)
(invocations at Nebraska state legislative
sessions–No EC violation)
Rubin v. Burbank, 101 CA4th 1194 (2002)
(Marsh applies only to non-sectarian legislative prayer)
Turner v. City Council of Fredericksburg VA, 534 F.3d 352
(4th Cir. 2008) (requirement that legislative prayer be
non-denominational)
Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d
276 (4th Cir. 2005) (High Priestess of Wicca excluded
from list of clergy offering invocations)
Statutory Ban on Certain Government Speech
Stanson v. Mott, 17 Cal. 3d 206, 217, 130 Cal. Rptr. 697
(1976)
Miller v. California Commission on the Status of Women,
151 Cal. App. 3d 693, 697, 198 Cal. Rptr. 877 (1984)
Slide 43