Amdt1.2.7.1.1 Government Speech Doctrine

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 wishes2 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 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.13 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. 14 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. 15 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. 16

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.17 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.18 First, the Court noted that, unlike license plates, trademarks do not have a history of use to convey messages by the government 19. 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.20 And third, the public, according to the Tam Court, does not closely identify trademarks with the government. 21 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

  1.  Jump to essay-1500 U.S. 173 (1991).
  2.  Jump to essay-2Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
  3.  Jump to essay-3Id. at 833.
  4.  Jump to essay-4See 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.
  5.  Jump to essay-5See id. at 468 (Indeed, it is not easy to imagine how government could function if it lacked this freedom.).
  6.  Jump to essay-6See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 562 (2005).
  7.  Jump to essay-7See Rust, 500 U.S. at 194.
  8.  Jump to essay-8See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006).
  9.  Jump to essay-9See Livestock Mktg. Ass’n, 544 U.S. at 562.
  10.  Jump to essay-10See Pleasant Grove City, 555 U.S. at 472.
  11.  Jump to essay-11See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, No. 14-144, slip op. at 1 (2015).
  12.  Jump to essay-12See Livestock Mktg. Ass’n, 544 U.S. at 560.
  13.  Jump to essay-13See Pleasant Grove City, 555 U.S. at 470.
  14.  Jump to essay-14Id. at 470–73.
  15.  Jump to essay-15See Walker, slip op. at 1.
  16.  Jump to essay-16See id. at 7–12.
  17.  Jump to essay-17582 U.S. ___, No. 15-1293, slip op. at 14 (2017).
  18.  Jump to essay-18Id. at 17–18 (Trademarks are private, not government, speech.).
  19.  Jump to essay-19Id.
  20.  Jump to essay-20Id. at 2.
  21.  Jump to essay-21Id. at 17 (quoting Walker, 576 U.S. at ___, slip op. at 10).