New Extensions of Government Speech, 31 Hastings Const. LQ 71
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UIC School of Law UIC Law Open Access Repository UIC Law Open Access Faculty Scholarship 1-1-2004 The Special Public Purpose Forum and Endorsement Relationships: New Extensions of Government Speech, 31 Hastings Const. L.Q. 71 (2004) Mary Jean Dolan Follow this and additional works at: https://repository.law.uic.edu/facpubs Part of the Constitutional Law Commons, and the First Amendment Commons Recommended Citation Mary Jean Dolan, The Special Public Purpose Forum and Endorsement Relationships: New Extensions of Government Speech, 31 Hastings Const. L.Q. 71 (2004). https://repository.law.uic.edu/facpubs/120 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Open Access Faculty Scholarship by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. THE SPECIAL PUBLIC PURPOSE FORUM AND ENDORSEMENT RELATIONSHIPS: NEW EXTENSIONS OF GOVERNMENT SPEECH by MARY JEAN DOLAN* INTRODUCTION Government web sites, public art projects, festive light pole banners, and outdoor special events - these new and expanding phenomena energize our communities and enhance the quality of life. All involve a growing, synergistic partnership between the public and private sectors,' and all implicate the First Amendment. In some circumstances, government makes selections among private speakers, deciding who will participate or be subsidized, and in others, government projects benefit from essential private financial support. * Special counsel to the City of Chicago. J.D. Northwestern University; B.A. University of Notre Dame. With sincere appreciation to Sheldon Nahmod, Lawrence Rosenthal, Spencer Waller, and Daniel Hynan for their helpful comments on earlier versions of this Article. The views expressed in this Article are entirely my own and should not be attributed to the City of Chicago. 1. For a discussion of the many applications of this trend, see Martha Minow, Partners Not Rivals?: Redrawing the Lines Between Public and Private, Non-Profit and Profit, and Secular and Religious, 80 B.U. L. REV. 1061 (2000) (observing phenomenon and analyzing its impact on school reform and hospital funding). Also see People for the Ethical Treatment of Animals (PETA) v. Giuliani, 105 F. Supp. 2d 294, 328 (S.D.N.Y. 2000), affd, 2001 WL 1010004 (2d Cir. Sept. 5, 2001), which involved a public art event in New York: [T]he CowParade is the product of a public-private partnership entailing investment of significant capital in the venture by a private entity. This form of private involvement in the financing of public functions has become an increasingly pervasive and significant means of underwriting programs and events in which the general public has an important interest and from which the state derives substantial benefits. This is true especially in the context of dwindling public resources available for certain activities for which the government may be reluctant to exercise its powers to tax the entire citizenry. Id. at 328. HeinOnline -- 31 Hastings Const. L.Q. 71 2003-2004 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 31:2 Whether screening participants or sponsors, government seeks to select those compatible with project goals and to avoid fostering speech that divides communities, insults particular groups, or grates on public sensibilities. Current judicial analysis of these complex public-private relationships is inadequate in two ways. First, in these proliferating contexts, even though government often has subjective expressive goals, such as "showcasing the city's culture," courts impose the "limited public forum" test, which bans values-based choices among potential private speakers. Second, new cases have allowed viewpoint-based decisions when it comes to government's choice of sponsors for public expressive programs. These cases use the "government speech" approach, but fail to provide a coherent rationale. The limited public forum test and the government speech approaches are on a collision course. To understand the contradictions illustrated by the two lines of cases requires a brief overview of the two doctrines. Where an applicant is rejected from a government program that involves speech, courts generally begin their analysis of any First Amendment claim by using forum analysis, which looks to the nature of the property at issue. In the "traditional public forum," primarily the streets and parks, the "strict scrutiny" test applies: no content-based restrictions on speech are allowed unless necessary to serve a compelling state interest and narrowly tailored to that end.2 When government invites private speakers to use nonpublic property or public funds, however, it is a "limited public forum" and a different rule applies. The "limited public forum" test permits government to set reasonable content limitations on the types of speakers and subject matter allowed, so long as the limits are viewpoint neutral.' While this test appears to give government substantial flexibility to tailor public programs involving private speech, that promise has often proved illusory, in part because the line between content and viewpoint is quite faint.4 Litigated primarily in the contexts of transit advertising and meeting room allocation, courts have required content limits to be concrete and have rejected attempts to screen out public controversy, hate groups, advocates of discrimination, and 2. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983) (establishing the forum analysis approach). Strict scrutiny also applies to content-based distinctions where government opens its property up for speech generally. Id. 3. Id. at 55. See discussion infra Part I.A. 4. See infra Part I.B. HeinOnline -- 31 Hastings Const. L.Q. 72 2003-2004 Winter 2004] EXTENSIONS OF GOVERNMENT SPEECH 73 religious practices. The only consistently successful method of excluding divisive speech from a limited public forum has been "commercial only" policies, which are relevant only in the advertising setting. In contrast, the "government speech" approach delivers that flexibility. When government is deemed to be promoting its own message, the viewpoint neutrality requirement (and reasonableness, for that matter) disappears. Two distinct models of government speech involve selection of private speech. Rust v. Sullivan5 established that government may express a particular substantive policy, such as an anti-abortion stance, through private speakers. There, the government did so by funding only those clinics which agreed not to counsel on the abortion option.6 Under National Endowment of the Arts v. Finlay,7 when government is engaged in a necessarily discretionary selection process, such as allocating federal arts funding on the basis of "artistic merit," it can incorporate values, such as decency, as part of its evaluations. This Article focuses first on the contexts that it will label the "special public purpose forums." These are the projects and programs where government has a subjective expressive purpose that includes particular values and is carried out through selection of private speakers. In these contexts, the government speech paradigm should apply. Instead, in recent cases involving Internet links on a municipal web site,8 honorary street signs,9 and sidewalk art,'° the limited public forum test was applied by rote, despite its uneasy fit with general criteria such as "promoting the city's tourism and economic welfare" and "appealing to a broad-based audience." Such standards cannot be applied free of viewpoint. Nominal application of the limited public forum test at best creates an unpredictable legal landscape for policy makers, and often will frustrate legitimate public expressive intent. In only one case has a court explicitly faced the dichotomy. It concluded, in dicta, that if a city funds only those 5. 500 U.S. 173 (1991). 6. Id. at 179. 7. 524 U.S. 569, 572-73 (1998). See also Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998) (involving public broadcasting content selection). See infra Part II.A. 8. See The Putnam Pit v. City of Cookeville, 221 F.3d 834, 838-39 (6th Cir. 2000). 9. See E. Timor Action Network, Inc. v. City of N.Y., 71 F. Supp. 2d 334, 336 (S.D.N.Y. 1999). 10. See PETA v. Giuliani, 105 F. Supp. 2d 294, 297 (S.D.N.Y. 2000), affd, 2001 WL 1010004 (2d Cir. Sept. 5, 2001). 11. See Gentala v. City of Tucson, 244 F.3d 1065 (9th Cir. 2001) (en banc), vacated by HeinOnline -- 31 Hastings Const. L.Q. 73 2003-2004 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 31:2 special events that best reflect the city's unique identity, that selection process might be government speech. 2 This approach, as this Article asserts, is the proper one. In the context of special public purpose forums, the Article argues, the government speech paradigm should apply, not the limited public forum test. The second focus of this Article is what shall be referred to here as the "sponsor acknowledgment" cases. Two appellate courts recently have held that a government's promotion of its corporate sponsors, by public acknowledgment of their contributions, is government speech and does not create a limited public forum entitling others to access. Especially where the acknowledgment includes promotional information about the sponsors, it is hard to distinguish between these cases and the many limited public forum cases involving companies that pay the government to advertise on government property. 14 The courts have not yet articulated any clear distinction between governments' promotion of corporate sponsors and governmental programs of displaying corporate advertisements. The two types of cases result in different outcomes, however, despite the apparent similarities: a revenue-raising purpose and lack of declared expressive goals. 5 This Article asserts that the crucial distinction between the sponsor acknowledgment cases and situations correctly labeled limited public forums is the appearance of endorsement. Where an affiliation resembles a partnership, so that the public will perceive government approval of a sponsor's message, government should 122 S.