Free Speech Rights at City-Sponsored Events and Facilities

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1 Free Speech Rights at City-Sponsored Events and Facilities LEAGUE OF CALIFORNIA CITIES CITY ATTORNEYS DEPARTMENT September 19, 2013

2 A City May Sponsor an Expressive Program or Activity in Number of Ways Communicating its own public policy views through a third party, such as a nonprofit or contractor

3 Government Sponsorship Making its facilities available to a third party, either free or through a rental agreement Issuing a permit for a parade, street fair, or similarly expressive activity in a public forum

4 Government Sponsorship Creating a designated or limited public forum for expressive activities Establishing a forum on its website for exchange of ideas by city officials and the public

5 Government Speech Rapidly expanding area of First Amendment law Critical threshold issue for determining First Amendment analysis to apply in government sponsorship cases

6 Other End of the Spectrum Where the city issues a permit to a particular group to engage in First Amendment activity, and another individual or group seeks to formally participate in that activity

7 A City s Need to Communicate Inextricably intertwined with a city s performance of its mission

8 Forms of Government Speech Dispersing public safety and health information at civic events Establishing a city website Placing public service ads on city buses Erecting an expressive display in a public building.

9 Third Party Involvement Adds Complexity A request to a display gay rights flag on flagpole at city hall Displaying logos for organizations on sign at entry points to the city A request to include a flyer urging support for the bicycle advocacy group in employee paycheck envelopes

10 Third Party Involvement Creation of city-sponsored social media sites where members of the public may post messages A request by a civic organization to hang banners across public streets during a city event to promote the organization s efforts

11 The First Amendment s Treatment of Government Speech The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. Pleasant Grove City v. Summum

12 How does this distinction change the First Amendment analysis? In its role as speaker, the government may engage in viewpoint discrimination Advocating Just say no to drugs does not require equal time for Just say yes to drugs

13 The Development of the Doctrine: Rust v. Sullivan Don t bother looking for the phrase government speech in the case No improper viewpoint discrimination where government selectively fund[s] a program that it believes to be in the public interest

14 Legal Services Corp: A Fine Line Indeed Challenged law prohibited federally funded LSC attorneys from attempting to amend or challenge existing welfare laws The law violated the First Amendment because it was designed to facilitate private speech, not to promote a governmental message.

15 Johanns: An Attempt to Establish a Standard Challenge to subsidy imposed by the Beef Act to pay for compelled for speech supporting US beef sales Beef. It s What s for Dinner. Taxpayers have no First Amendment right not to fund government speech

16 Three Criteria for Determing Government Speech Government mandated the program and beef promotion ads Government determined the nature of the message to be communicated. Government approved every word. The message set out in the beef promotions is from beginning to end the message established by the Federal Government....

17 Pleasant Grove City v. Summum Do privately funded monuments permanently displayed in a public constitute government speech? Yes, by a 9-0 vote The display of a permanent monument in a public park is not a form of expression to which forum analysis applies.

18 The Pleasant Grove Criteria City s degree of control of the monuments to be included in the park Permanent nature of the monuments The public routinely-and reasonablyinterpret [donated monuments] as conveying some message on the property owner s behalf.

19 Appellate Courts Struggle to Find a Workable Standard The Four Part Test The Two Part Test The Single Inquiry

20 The Ninth Circuit s Approach to Government Speech Seems to have adopted the four-step test Except where it doesn t

21 Arizona Life Coalition Inc. v. Stanton Case arose after Arizona rejected a request for Choose Life license plates Arizona: Its action was valid because any messages on specialty plates constituted government speech

22 Arizona Life Court Applies the Four-Part Test (1) the purpose of the specialty license plate program was revenue raising as well as providing a forum in which philanthropic organizations... can exercise their First Amendment rights in the hopes of raising money to support their cause.

23 Arizona Life (2) The factor of editorial control also favored a finding that the plates were private speech. The idea of Choose Life license originated with the plaintiff, even though the state exercised the power to set guidelines for gaining access to the license plate forum.

24 Arizona Life (3), on balance, the private parties were the literal speakers (4) private organizations exercised ultimate responsibility for the license plate message; the organization s motto and name would appear on the plates, and it bore the responsibility to take the affirmative step of submitting an application

25 Whither Arizona Life: Delano Farms Co. Johanns type case. Table grape grower challenged program that compelled it to pay some of the costs for the CTGC s generic advertising promoting table grapes Grower: The generic ads hurt its ability to distinguish its superior grapes from those of its competitors, and imposing the payment constituted compelled speech

26 The Ninth Circuit Applies Johanns Did the government direct the creation of the promotional program and specify that the program should include paid ads? Did government control generally what the promotional campaigns should say? Did the government exercise authority over every word in the advertisements?

27 Close Enough to Johanns for Government Work The Commission s message was from beginning to end that of the State. So the court held that the program constituted government speech, immunizing it from the grower s First Amendment challenge

28 So What is the Ninth Circuit s Government Speech Test? It will turn on the nature of the government program or activity involved If plaintiff is being denied the ability to express his or her own view as part of a government program, Arizona Life applies If the claim involves compelled speech through an involuntary assessment, Delano will apply

29 Government Speech and the California Constitution Gerawan Farming Inc. v. Lyons laid the groundwork for the California Supreme Court to address the issue when the case returned to the court a second time Another in the trail mix line of cases involving fruit and nut promotion programs No First Amendment claim, but did state a claim under the California Constitution

30 Gerawan II Speech may be considered government speech if the message is decided upon by a government official pursuant to statutorily derived regulatory authority Need factual findings on whether the marketing board is in de facto control of the ad program, and whether the speech is attributed to the government

31 Gallo Cattle Co. v. A.G. Kawamura Johanns analysis applies to free speech claims brought under Article I, Section 2 of the California Constitution Under Johanns, the challenged advertising program was constitutional

32 Government Speech: Be Careful What You Ask For Establishment Clause Misuse of Public Resources for Political Purposes

33 Applying the Government Speech Doctrine to Cities A request by a private party to display gay rights flag on flagpole at city hall to show support for gay marriage

34 Applying the Government Speech Doctrine A city issues a grant for an art display in city hall and both reserves and exercises the right to approve each piece in the display.

35 Applying the Government Speech Doctrine A city conducts a health fair and carefully controls and approves the messages to be conveyed as part of that fair

36 PARADE AND STREET FAIR PERMITS A city issues a permit for a parade, street fair or other expressive event, and the city is faced with a claim that that organizer is unlawfully excluding someone from participating in that event

37 The Issue These cases may not involve an argument that the permit should be denied, but rather that the expressive activity is subject to the state or local nondiscrimination laws, or that the City cannot support or subsidize the event, or that the exclusion violates the First Amendment

38 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc May a state's public accommodations statute barring discrimination be applied to an organization that excludes a group from its parade, occurring in a public forum? The state court said yes

39 The Supreme Court Decision Mandating inclusion of the group violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.

40 The Reasoning The parade was expressive conduct Its expressive content was not diminished by the fact that the organizers were lenient about admitting participants or that the parade had no particularized message The group s message would likely be identified with the parade organizer, and the public would assume that the organizer approved of that message

41 Western Falun Dafa Assn. v. Chinese Chamber of Commerce The Chamber sponsors SF s annual Chinese New Year Celebration The celebration includes a parade, street fair and flower fair These activities were intended to educate the public on the subjects of Chinese culture and history

42 Western Falun Dafa (Falun Gong) Spiritual organization that applied to be part of the parade and fairs Application denied: I personally told you that your group would be denied participation because of the political posture and position of the Falun Gong's views.

43 The Lawsuit Claim against the Chamber: Excluding the organization from the parade violation of Unruh Civil Rights Act. Claims against the City: Illegal expenditure of public funds, and the City s funding of the parade violated the City s antidiscrimination laws.

44 The City s Response We investigated the claim of discrimination, and the court should not second-guess that investigation in a taxpayer lawsuit The anti-discrimination ordinance does not apply to artistic and cultural events Under Hurley, the City cannot restrict the organizer s message by controlling who is included in the parade

45 The Chamber s Response Hurley controls not just the parade, but who may participate in the street fair and flower fair as well Under Hurley, the Chamber prevails

46 The Decision: Hurley Controls the Parade Issue City and Chamber prevailed in trial court Falun Gong appealed the Chamber ruling Court of Appeal: Hurley controls as to the right of the Chamber to determine who it would include and exclude from the parade What about the Street Fair and Flower Fair?

47 Falun Gong: Rumsfeld v. Forum for Academic and Institutional Rights applies Challenge to Solomon Amendment, which denied federal funding to colleges that prohibited military recruiting Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive.

48 The Chamber Lion-dances Its Way to Prevailing Court of Appeal: Both the Street Fair and Flower Fair were inherently expressive They involved lion dancing, exhibitions of Chinese music, puppet shows, and martial arts displays, and fireworks The expressive nature of these events is similar, if not identical, to that of the parade in Hurley, and merits First Amendment protection

49 What Hurley and Chinese Chamber Do Not Stand For These cases involve the First Amendment rights of an organization to exclude other groups from official participation in events occurring in a traditional public forum They do not involve the right of organizers to ban an individual from the public forum where the event is taking place

50 No Right to Exclude Individuals or Groups from the Public Forum Parks v. City of Columbus Gathright v. City of Portland The Presidential Rally Exception

51 Final Public Forum Question How different ways has the Supreme Court described public property in terms of the forum analysis?