government speech doctrine

43 Pages·2012·1.56 MB·English

by  Jerry Hicks

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 (Non-
Public) 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