Free Speech Rights at City-Sponsored Events and Facilities

Free Speech Rights at City-Sponsored Events and Facilities Thursday, September 19, 2013; 9:30 11:30 a.m. Randy E. Riddle, Renne Sloan Holtzman Sakai League of California Cities 2013 Annual Conference; City Attorneys Track Sacramento Convention Center

When Government Speaks: The Development of the Government Speech Doctrine 1 City attorneys are continually confronted by difficult legal issues requiring the application of complex and nuanced legal doctrines. This is particularly true when an issue implicates First Amendment principles. And the analysis can become even more difficult and perhaps politically sensitive when the city is not acting in the role of regulator of activities protected by the First Amendment, but rather has chosen to sponsor in some manner a program or activity with an expressive element. A city may sponsor an expressive program or activity in a myriad of ways: Communicating its own public policy views, either directly or through a third party; Making its facilities available to a third party, either free or through a rental agreement; Issuing a permit for a parade, street fair, or similar activity in a traditional public forum; Creating a designated or limited public forum for expressive activities; or Establishing a forum on its website for exchange of ideas by city officials and the public. While my presentation will address broader issues that arise with government-sponsored speech, this paper will focus on the first of these categories. It will explore the relatively new doctrine of government speech, which is gaining increased vitality in the case law, and is a critical threshold issue in conducting the First Amendment analysis that may apply. In order for a city to govern, it must be able communicate numerous messages to disparate audiences. The city may want to communicate in order to provide important information to its residents, such as earthquake safety procedures. Or it may wish to directly influence behavior, such as advising its residents about the dangers of tobacco or sugar-infused soft drinks. Moreover, government speech takes numerous forms, including conducting meetings of the city council and subsidiary legislative bodies, dispersing public safety and health information at civic events, establishing a city website, and placing public service ads on city buses. 1 By Randy Riddle, Renne Sloan Holtzman Sakai LLP. I would like to thank Craig Labadie and Eugene Park for their excellent ideas and skilled editing assistance. 1

Until relatively recently, however, the Supreme Court had not addressed the application of the First Amendment to government speech. As Supreme Court case law in this area makes clear, whether the speech at issue is government speech or private speech fundamentally alters the First Amendment analysis. Generally, a city that seeks to selectively grant its resources or assistance to an expressive program or activity must ensure that the criteria for providing such support are viewpoint-neutral. 2 As the Supreme Court has succinctly explained, however, [t]he Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. 3 Accordingly, the government may engage in viewpoint discrimination when the government itself is speaking. In other words, as one court has explained, the government may choose to communicate the message Say no to drugs without having to also promote the alternative message Say yes to drugs. 4 Thus, by demonstrating that solely government speech is involved, a city may avoid at the outset First Amendment free speech claims. For cities, the issue of government speech may arise in a number of situations, such as: A request by a private party to display gay rights flag on flagpole at city hall to show support for gay marriage; Displaying logos for local service organizations on monument sign at entry points to the city; A request to include a flyer urging support for the local bicycle advocacy organization in envelopes when city distributes pay checks or other communications to city employees; 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. A. The Supreme Court s Development of the Government Speech Doctrine It is generally recognized that the genesis of the government speech doctrine was the Supreme Court s decision in Rust v. Sullivan. 5 In Rust, a group of private doctors funded 2 Good News Club v. Milford Central School, 533 U.S. 98, 106-107 (2001). 3 Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009). The Ninth Circuit has explained this doctrine as meaning that the government s own speech is immune from constitutional challenge..., at least under the Free Speech Clause of the First Amendment. Delano Farms Co. v. California Table Grape Comm., 586 F.3d 1219, 1224 (9th Cir. 2009). 4 DKT Int l, Inc. v. Agency for Int l Dev., 477 F.3d 758, 761 (D.C. Cir. 2007). 5 500 U.S. 173, 178 183 (1991). 2

by the federal Public Health Service Act challenged a regulation prohibiting them from counseling patients about abortion, claiming that it violated their free speech rights. In a 5-4 decision in which the Court did not actually employ the phrase government speech the Supreme Court rejected the First Amendment challenge, explaining that the Government... ha[d] merely chosen to fund one activity to the exclusion of the other. 6 More specifically, the Court concluded that the government does not unconstitutionally engage in viewpoint discrimination where it selectively fund[s] a program [that] it believes to be in the public interest. 7 Accordingly, despite the fact that the government message at issue was conveyed by private parties, the Court held that the challenged regulation did not violate the doctors speech rights. 8 The Supreme Court reached a different conclusion ten years later. In Legal Services Corp. v. Velazquez, 9 the plaintiffs challenged a federal law prohibiting attorneys who received funds from the Legal Services Corporation (LSC) from attempting to amend or challenge existing welfare law on behalf of their indigent clients. As in Rust, the Court was required to decide whether the government could, consistent with the First Amendment, limit the information provided by attorneys who chose to participate in a government-funded program. In another 5-4 decision, the Court held that the restrictions were invalid. The Court concluded that the LSC program was designed to facilitate private speech, not to promote a governmental message. 10 According to the Court, the purpose of the LSC program was to provide indigent citizens with attorneys who would represent their clients best interests. The purpose of the program in Rust, on the other hand, was for the government to fund those family planning programs it determined would best promote the interests of the public. 11 To the extent there is a meaningful distinction here, it is a difficult one for a public agency attorney to apply when facing a complex factual situation. Based on this distinction, the Court concluded that the challenged funding limitation violated the First Amendment.: [T]he salient point is that, like the program in Rosenberger, [this] program was designed to facilitate private speech, not to promote a governmental message.... The advice from the attorney to the client and the advocacy by 6 Id. at 193. 7 Id. 8 Id. 9 531 U.S. 533, 541 (2001). 10 Id. at 542. 11 Id. 3

the attorney to the courts cannot be classified as governmental speech even under a generous understanding of the concept. 12 In Johanns v. Livestock Marketing Association, 13 the Court further developed the government-speech doctrine by articulating three criteria for determining whether a particular message is government speech or private speech. 14 In Johanns, beef producer associations claimed that the Beef Promotion and Research Act of 1985 (Beef Act) violated their First Amendment rights. As part of its program to promote the United States beef industry, the Beef Act imposed a tax on beef producers, and then specified that that a portion of the tax revenue be used to pay for an advertising campaign with the slogan, Beef. It s What s for Dinner. 15 Many of these advertisements also included the message Funded by America s Beef Producers. 16 The beef producers claimed that using their tax dollars to fund the advertising campaign impeded their attempts to promote the superiority of their own specialty beef brands. 17 The Court, however, rejected their First Amendment claim, reasoning that the government created and closely maintained control over the program, and that therefore the messages constituted government speech, even though they were conveyed by a private entity. 18 The Court identified three criteria it concluded determined whether the beef ads constituted governmental or private speech. First, the government mandated the creation of the program, and required that it include advertising to promote beef. Second, the government the determined in general terms the nature of the message to be communicated. Third, the government approved every word of the individual ads. 19 The message set out in the beef promotions is from beginning to end the message established by the Federal Government.... Congress and the Secretary [of Agriculture] have set out the overarching message and some of its elements, and they have left the development of the remaining details to an entity whose members are answerable to the Secretary.... Moreover... the Secretary exercises final approval authority over every word used in every promotional campaign. 20 12 Id. 13 544 U.S. 550 (2005). 14 Id. at 553. 15 Id. 16 Id. at 554. 17 Id. at 558. 18 Id. at 560-561. 19 Id. at 561-562. 20 Id. at 560-561. 4

Pleasant Grove City v. Summum, 21 decided just four years ago, is the Court s most recent discussion of the government speech doctrine. There, the Court faced the issue of whether privately funded monuments permanently displayed in a public park constituted government or private speech. The Church of Summum sued Pleasant Grove City after the city rejected Summum s requests to include in Pioneer Park a monument containing the Seven Aphorisms of Summum. Significantly, Pioneer Park displayed at least eleven permanent displays including a Ten Commandments monument donated by private parties. The Church argued that the city had engaged in viewpoint discrimination by allowing the Ten Commandments monument to be displayed but rejecting a monument expressing the tenets of its own faith. 22 The Court noted that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. The Court appeared concerned about the implications of a contrary conclusion. The Court explained, for example, that city officials might have to brace themselves for an influx of clutter or face the pressure to remove longstanding and cherished monuments. 23 The Court then unanimously held that the Pioneer Park monuments constituted government speech, explaining that the placement of a permanent monument in a public park is best viewed as a form of government speech. Accordingly, the Court concluded, the city was not required to exercise viewpoint neutrality in its selection process. The Court identified as important factors the city s degree of control of the monuments to be included in the park, the permanent nature of the monuments, and that members of the public routinely-and reasonably-interpret [donated monuments] as conveying some message on the property owner s behalf. 24 B. Distinguishing Government Speech from Private Speech: Appellate Courts Struggle to Find a Workable Standard As these cases make clear, when a private party communicates a message at the direction of, or on behalf of, the government, that message may constitute government speech. On the other hand, it is certainly not the case that private speech becomes government speech merely because the government allows the speaker to use governmental resources to convey the message, or otherwise facilitates the speech. While the Supreme Court has 21 555 U.S. 460 (2009). 22 Id. at 464-465. 23 Id. at 479. 24 Significantly, the Court did not confront the issue of whether the memorials might run afoul of the Establishment Clause. As noted later, the fact that government speech is immune from a free speech claim does not mean that it is free from challenge on some other basis, including an Establishment Clause attack. 5

identified certain factors to consider in drawing this distinction, it has not articulated clear standard for doing so. Without such a standard, the circuit courts have created their own tests for determining what types of expression constitute government speech. 25 Some circuit courts have established a four-factor test for making this determination: (1) the central purpose of the program in which the speech occurs; (2) the relative degree of editorial control exercised by the government and private entities over the content of the speech; (3) the identity of the literal speaker ; and (4) whether the government or the private party exercises the ultimate responsibility for the content of the speech. 26 Another circuit has articulated a two-part test: (1) whether the government determined the overall message communicated; and (2) whether the government approved every word that was communicated. 27 Finally, two circuits have reduced the analysis to a single key inquiry: whether a reasonable person would, under all the circumstances, view the speech as governmental or private. 28 C. The Ninth Circuit s Approach to Government Speech In Arizona Life Coalition Inc. v. Stanton, 29 the Ninth Circuit appeared to adopt the fourfactor test for distinguishing government from private speech. The state of Arizona had rejected a request for Choose Life license plates under their specialty license plate program. As a threshold matter, Arizona argued that its restriction was valid because any messages on specialty plates constituted government speech. 30 Applying the four- 25 Interestingly, many of these cases involve state-issued specialty license plates that contain messages other than the state s standard plate design. See e.g. ACLU v. Bredesen, 441 F.3d 370, 375 (6th Cir.2006) (Tennessee law permitting residents to pick Choose Life license plates, but not license plates with pro-choice messages involved government speech); Roach v. Stouffer, 560 F.3d 860, 862, 869-870 (8th Cir. 2009) (Missouri s specialty license plate program did not involve government speech); Choose Life Ill., Inc. v. White, 547 F.3d 853, 863 (7th Cir. 2008) (same); Ariz. Life Coal. Inc. v. Stanton, 515 F. 3d 956, 965-966 (9th Cir. 2008) (same); Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 794 (4th Cir. 2004) (specialty license plates were neither purely government speech nor purely private speech). Notwithstanding the other challenges they face, city attorneys should be thankful they do not have to become versed in license plate law. 26 Wells v. City & County of Denver, 257 F.3d 1132, 1141 (10th Cir. 2001); Sons of Confederate Veterans, Inc. v. Commissioner of the Va. Dept. of Motor Veh., 288 F.3d 610, 618 (4th Cir. 2002); Arizona Life Coal. Inc. v. Stanton, 515 F.3d at 965. 27 ACLU v. Bredesen, 441 F.3d at 375-376. 28 Roach v. Stouffer, 560 F.3d 860 at 869-70; Choose Life Ill., Inc. v. White, 547 F.3d at 863. 29 515 F.3d 956. 30 Id. at 965. 6

pronged test, the Ninth Circuit disagreed, concluding that the messages on specialty plates constituted private speech. 31 First, the court concluded that 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. 32 Second, the court concluded that that 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. 33 With respect to the third factor, the court found that, on balance, the private parties were the literal speakers. 34 Finally, the court determined that that private organizations exercised ultimate responsibility for the license plate message, since their organization s motto and name would appear on the plates, and it bore the responsibility to take the affirmative step of submitting an application before any message would be communicated on a license plate. 35 Since each of the factors supported a finding of private speech, the court concluded that the program did not constitute government speech. 36 A year later, the Ninth Circuit decided another government speech case without a passing reference to its Arizona Life decision. In Delano Farms Co. v. California Table Grape Comm., 37 a table grape grower challenged the validity of a program that compelled it to pay some of the costs for the California Table Grape Commission s generic advertising promoting table grapes. The grower claimed that the generic advertisements hurt its ability to distinguish their grapes from those of their competitors, and that being required to subsidize those efforts violated its First Amendment rights. 38 Rather than look to Arizona Life, the Ninth Circuit analyzed the case under the Supreme Court s decision in Johanns and an earlier Ninth Circuit decision, Paramount Land Co. LP v. California Pistachio Comm. 39 The Delano court applied the three factors used in Johanns to determine if the government had effective control over the message. The first factor asked whether the government directed the creation of the promotional program and specified that the program should include paid advertising, to advance the image and desirability of beef and beef products. 40 Second, the court looked to whether, in 31 Id. at 972. 32 Id. 33 Id. at 966. 34 Id. at 967. 35 Id. at 967-968. 36 Id. at 968. 37 586 F.3d 1219 (9th Cir. 2009). 38 Id. at 1222. 39 491 F.3d 1003 (9th Cir. 2007) 40 586 F.3d at 1226. 7

general terms, the government specified what the promotional campaigns should communicate. Finally, the court examined whether the government exercised authority over every word in the advertisements. 41 Applying these factors, the Ninth Circuit concluded that [t]he framework of statutes governing the Commission is sufficiently similar to the schemes addressed in Johanns and Paramount Land for us to conclude that the State exercises effective control over the Commission s activities. In other words, the Commission s message was from beginning to end that of the State. 42 Accordingly, the court held that the program constituted government speech, immunizing it from the grower s First Amendment speech challenge. 43 It appears that the analysis that the Ninth Circuit will employ when approaching a government speech issue will turn on the nature of the government program or activity involved. In cases involving a claim that the plaintiff is being denied the ability to express his or her own view as part of a government program, the court will employ the four-part test articulated in Arizona Life, while reserving the Johanns compelled speech analysis to the type of involuntary assessment programs challenged in Delano and Paramount Land. D. The Government Speech Doctrine Under the California Constitution In Gerawan Farming Inc. v. Lyons 44 another of the trail mix of cases involving challenges to agricultural marketing programs the California Supreme Court addressed government speech under both the United States and California Constitutions. The plaintiff in Gerawan was a plum grower that challenged a marketing order issued under the California Marketing Act that required plum growers to finance the generic advertising of plums. 45 The grower argued that the order violated its rights under both the First Amendment and Article I, Section 2 of the California Constitution, which provides that [e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. 46 Applying Glickman v. Wileman Bros. & Elliott, Inc., 47 the California Supreme Court first examined whether the challenged order violated the First Amendment. 48 Significantly, Glickman preceded Johanns, and the Glickman plaintiffs did not raise the issue of 41 Id. at 1227-29. 42 Id. at 1227-28. 43 Id. at 1230. 44 24 Cal.4th 468 (2000). 45 Id. at 480-481. 46 Id. 47 521 U.S. 457 (1997). 48 24 Cal.4th at 497-508. 8

government speech. Rather, the Supreme Court analyzed the challenged agricultural marketing order as an economic regulation, and on that ground concluded that it did not implicate the First Amendment. 49 The California Supreme Court concluded reluctantly that it was compelled to follow Glickman, and concluded that the challenged plum marketing order did not violate the First Amendment. 50 The Gerawan court held, however, that the challenged order did implicate the grower s rights under Article I, Section 2 of the California Constitution, which it concluded provides broader protection than the First Amendment with respect to what the court viewed as compelled speech. 51 On this basis, the court vacated the Court of Appeal decision, with directions to consider the validity of the order under the California Constitution. 52 Again, the issue of whether that order involved government speech was neither raised nor addressed by the court. Four years later, the case returned to the California Supreme Court in Gerawan II. 53 The court clarified that, to the extent the order constituted private speech, the challenged plum order should be analyzed under the intermediate scrutiny standard for commercial speech, and remanded the case further factfinding. 54 The Supreme Court then explained: We conclude as well the Secretary of Food and Agriculture s (Secretary) claim that the generic advertising in question is constitutional because it is government speech also cannot be resolved on the pleadings and requires further factfinding.... In the present case, the marketing board is comprised of and funded by plum producers, and is in that respect similar to the State Bar. But, as United Foods suggests, the speech may nonetheless be considered government speech if in fact the message is decided upon by the Secretary or other government official pursuant to statutorily derived regulatory authority. Because there are factual questions that may be determinative of the outcome for example, whether the Secretary s approval of the marketing board s message is in fact pro forma, whether the marketing board is in de facto control of the generic advertising program, and whether the speech is attributed to the government this issue cannot be resolved on the pleadings and requires further factfinding. 55 49 521 U.S. at 468-474. 50 24 Cal.4th at 508. 51 Id. at 509-510. 52 Id. at 517. 53 Gerawan Farming, Inc. v. A.G. Kawamura, 33 Cal.4th 1 (2004) (Gerawan II). 54 Id. at 6. 55 Id. at 28. 9

Accordingly, once the court was squarely presented with the issue of whether the government speech doctrine could be applied in cases arising under the California Constitution, the answer appeared to be a tentative yes. This conclusion is supported by Gallo Cattle Co. v. A.G. Kawamura. 56 There, the Court of Appeal applied the government speech doctrine in a challenge to yet another agricultural marketing program imposing an assessment, this time for California dairy products. After discussing the Gerawan II court s discussion of the government speech doctrine, the Court of Appeal concluded that the Johanns government speech analysis governed free speech claims brought under Article I, Section 2 of the California Constitution. Applying Johanns to the challenged advertising program, the court rejected the claim that the program was unconstitutional. Finally, the issue of government speech has arisen, at least tangentially, in cases involving attempts by local agencies to invoke the protections of the state s anti-slapp statute. 57 In Vargas v. City of Salinas, 58 the plaintiffs argued that the city could not invoke the anti-slapp statute because, they argued, neither the federal nor state constitution protects government speech. The Supreme Court sidestepped that issue, explaining that [w]hether or not the First Amendment of the federal constitution or article I, section 2 of the California Constitution directly protects government speech in general or the types of communications of a municipality that are challenged here significant constitutional questions that we need not and do not decide we believe it is clear, in light of both the language and purpose of California s anti-slapp statute, that the statutory remedy afforded by section 425.16 extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity. 59 In any event, the issue of whether government speech is itself constitutionally protected is different than whether government speech can give rise to a claim that the speech has in some manner violated the expressive rights of another party. This distinction was drawn by the Court of Appeal in Vargas v. City of Salinas, involving the award of attorneys fees to the city following the Supreme Court decision in Vargas: Plaintiffs are correct that the First Amendment does not explicitly grant the government the right to speak. That does not mean, however, that citizens are empowered to individually regulate governmental speech. In our system 56 159 Cal.App.4th 948 (2008). 57 Cal. Code Civ. Proc., section 425.16. 58 46 Cal.4th 1 (2009). 59 Id. at 17. 10

of government, the principal method for controlling the content of government speech is through the ballot box. 60 Citing Summum, the Court of Appeal concluded by noting that [i]n short, regardless of its source, the government s right to speak is a substantial interest to be protected. 61 Accordingly, while the development of the government speech doctrine under the California Constitution is still a work in progress, it appears that California courts will apply federal precedent addressing that issue under the First Amendment. What is unknown is whether California courts will employ one of the various standards established by federal circuits, or devise one of their own. E. What the Government May Not Say: The Establishment Clause and Political Advocacy One caveat is in order. The government speech decisions addressed in this paper involve challenges under the Free Speech Clause of the First Amendment. The fact that a particular communication constitutes government speech and is therefore immune from a free speech challenge does not mean that the government communication is free from challenge on other grounds. To the contrary, a determination that a communication is government speech may in fact expose the government to liability under at least two different doctrines. First, the government speech may run afoul of the Establishment Clause of the First Amendment. 62 Second, such speech could be susceptible to a claim that it constitutes an unlawful use of public resources for political advocacy. 63 Discussion of those doctrines is outside the scope of this paper. F. Conclusion The government speech doctrine is developing at an accelerated pace. Before 1990, there were fewer than ten cases discussing this doctrine; since then, more than 100 cases citing the government speech doctrine have been decided. 60 200 Cal.App.4th 1331, 1347 (2011). 61 Id. 62 See Johnson v. Poway Unified School District, 658 F.3d 954, 970 (9th Cir. 2011) (Noting that while government speech is immune from a free speech attack, [t]he same cannot be said for the Establishment Clause and that the Establishment Clause does apply to government speech ). 63 See Cal. Penal Code 424; Cal. Gov t Code 8314; Cal. Gov t Code 54964(b)(3); Stanson v. Mott, 17 Cal.3d 206 (1976). 11

In cities, the government speech doctrine could come into play in a number of ways. If a city conducts a health fair and carefully controls and approves the messages to be conveyed as part of that fair, the government speech doctrine could shield the city from a challenge from those excluded from that fair. It could also be important in defending grant programs for expressive activities, again assuming that the city takes steps to make clear that the messages communicated through the program are controlled and approved by it, particularly if the fact of that approval is made known to the public. In any event, it is a doctrine that city attorneys should understand and, where appropriate, utilize when facing free speech claims arising out of government-sponsored expressive programs. 12