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 Bernalillo County NM (Albuquerque)
Original County Seal Current County Seal
Slide 11 Constitutional Provisions
Federal: Establishment Clause of First Amendment: “Congress shall make no law respecting an establishment of religion. . .” New Mexico State Constitution: “No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any preference be given by law to any religious denomination or mode of worship.” Slide 12 Meaning of the Original Seal
Conflicting testimony on history, symbolism Sheep beneath cross • Jesus as shepherd of the flock? • Importance of sheep raising in local economy? Text: “With this we conquer,” or “With this we overcome”? • Refer to Spanish conquistadors converting Natives to Christianity by force?
Slide 13 Analysis – Bernalillo Seal
Courts must be wary of after-the-fact justifications Secular purpose: no evidence of original purpose Effect: Strong evidence that average observers thought the seal was government advertising the Catholic faith
• “Main effect” test – fail
• Symbolic oppression of Jews, Moslems, Protestants, Natives
• Pervasive, long-term use Seal violates Establishment Clause and State Constitution Friedman v Bd of County Commissioners Slide 14 Contrast: Seal of Austin TX
Slide 15 Murray v. Austin TX
1916 City Council chose a design that was an adaption of the family coat of arms of Stephen Austin, highly revered “Father of Texas” Design solicitation sought only “artistic merit”, made no mention of cross or Christianity, suggested some possible symbols of the City Adopting resolution did not mention the cross. It mentioned Austin family coat of arms; lamp signifies knowledge & education All viewers will see a Christian cross Slide 16
Analysis – Austin Seal
Insignia, taken as a whole, does not have the primary effect of advancing or impeding religion Rather, it identifies city activity, property, promotes Austin’s unique role & history Effect of religious symbols depends on context Austin: no Establishment Clause violation Not contrary to Friedman – different result only shows that Establishment cases often turn on subtle nuances, small differences in facts There is no simple, bright line rule for religious symbols in government seals, flags
Slide 17 Take Home Lesson – City Seals
Safe answer: NO religious images in City seal OR – be prepared to defend religious symbols with detailed, fact-specific analysis by court Context: is the symbol given prominence? Lemon test:
• 1) actual intent at time of adoption
• 2) actual effect, especially on non-believers
• 3) entanglement of government and religion LA County got sued for removing cross from seal
• case dismissed (Vasquez v LA Cnty) Slide 18
Gov’t Speech: Public Art PETA v Gittens
Slide 19 Party Animals – Wash. DC Public Art
Largest public art project in the history of the District of Columbia – 100 of each animal
Invited submissions for decorated animals
Showcase the “whimsical and imaginative side of the Nation's Capital” “for artwork that is dynamic and invites discovery,” “original and creative,” “durable” and “safe”
No “direct advertising of any product, service, a company name, or social disrespect,” “restrictions against slogans and inappropriate images” Slide 20 PETA’S Proposals
First proposal (on an elephant): “The CIRCUS is Coming See: Torture Starvation Humiliation All Under the Big Top” -- Rejected New proposals: a happy circus elephant (accepted) and a sad, shackled circus elephant (rejected) Last submission: shackled elephant crying, with a sign: “The Circus is coming. See SHACKLES-BULL HOOKS-LONELINESS. All under the ‘Big Top.’ Rejected -- single issue – political not art – inconsistent with light whimsical theme Slide 21
PETA – Court Decision
Here, city government spoke by accepting some sponsored animals, rejecting others
Editorial discretion is a kind of speech
Public Forum principles do not apply here
This is the city’s public art project, and it can decide which private speech to admit
Slide 22 Government Speech – Public Art New ton v. LePage, Governor of Maine
Governor ordered removal of a series of murals depicting history of organized labor in the State of Maine from State Dept. of Labor Bldg.
Labor reps protested, sought court order
Holding: The governor's removal of a mural . . . may strike some as state censorship; instead, it is a constitutionally permissible exercise of gubernatorial authority. The resolution of this vigorous debate rests with the people of the state of Maine electing their leaders.
Slide 23 Public Art – Designated Forum Contrast: Hopper v. Pasco WA
City Manager invited local artists to display their works on walls of new city hall Invitation: Wide open, but with the restraints that would be accepted with a public arts project paid for with public money No pre-screening, no guidance, no art jury Earlier displays had shown nudity Certain works excluded as “too controversial”
• Nudity shown, but obscene or pornographic
Slide 24 Hopper v. Pasco
Designated public forum – strict scrutiny Limited or non-public forum – reasonableness
• Consistent application is the key to keeping Limited Public Forum
• Here, nudity shown earlier but excluded this time
• Claimed policy of “noncontroversial only” was not consistently applied
• Thus, this is a designated forum case City could have avoided this problem by establishing and enforcing a clearly articulated policy that would pass First Amendment muster
Slide 25 Monuments Texas State Capital Grounds
Slide 26 Van Orden v. Perry
Ten Commandment monument at Texas State Capital
Lemon test not appropriate for passive monument
Look to nature of monument in light of nation’s history
Typical of official recognition of role of religion in nation’s history
One of many monuments in the same display
No violation of Establishment Clause
Slide 27 Must City Treat All Religions Alike? All or None?
Slide 28 Pleasant Grove UT v. Summum
New religion using ancient Egypt iconography 7 Aphorisms (based on Kybalion, 1908):
• Universe is a mental creation
• As above, so below
• Nothing rests; everything moves
• Everything is dual
• Everything flows in and out
• Causation: everything happens according to law
• Gender manifests in all levels
Slide 29 Summum Decision
Private donation of permanent monument, once accepted, became government speech Free Speech does not apply “If the citizenry objects, newly elected officials later could espouse some different or contrary position.” (Remedy: ballot box) Permanent monuments displayed on public property typically represent government speech Governments have long used monuments to speak to the public Slide 30 Distinguishing Summum? ACLU v. Dixie County FL
The
Slide 31 ACLU v. Dixie County FL
Six ton granite monument, prominently positioned at top of main entry stairs to courthouse, center of passageway, recited 10 Commandments and said “LOVE GOD AND KEEP HIS COMMANDMENTS”
Privately donated monument became government speech, subject to Establishment Clause
Actual effect: to reasonable observer, government is espousing particular religious view
Establishment Clause violation found; fee award: $144,000
Slide 32 Gov’t Websites – Links as fora
Putnam Pit v. Cookeville TN
• Cal-based operator of “watchdog” website critical of city admin requested link from city’s website to his; denied
• Hyperlinks created nonpublic forum
• Remand: was link refusal viewpoint based?
Slide 33
Gov’t Websites (continued)
Page v. Lexington County School District • On its website, and other media, School District opposed bill pending in Legislature regarding tax credits for private and home schooling • Opponent sought “equal access” to campaign • Held: this is government speech, no right of access to District’s systems Sutliffe v. Epping School District • School district could seek out other websites with supportive points of view, and selectively link to them only Slide 34
Website Lessons
Safest route: no links at all
Also safe: link only to other government websites
If linking to non-government websites, develop official policy and consistently enforce it
Actual pattern of practice usually defeats statements of policy
Opening a website (or social media accounts) to comments from anyone will probably create some kind of forum
Slide 35 Statutory Ban on Certain Gov’t Speech
In California, local governments may not expend public money to encourage a certain vote in an election, without specific statutory authority to do so. Cal. Gov’t Code § 54964, Stanson v. Mott (1976), Miller v. California Commission on the Status of Women (1984) Any such expenditures are reportable to the FPPC. Cal. Gov’t Code § 84203.5
Slide 36 Free Speech Rights of Public Employees
Garcetti v. Ceballos • DA spoke in official capacity when writing memo; 1st Amendment did not insulate him from discipline Hostkoetter v. Dept. Public Safety • Highway Patrol officer had no right to display political signs in his front yard, in violation of department policy; rule could not be enforced against his wife on jointly owned property Filarsky v. Delia (US Supreme, April 17, 2012) • Specially retained outside counsel have the same right to seek qualified immunity as full time employees of gov’t
Slide 37 Public School Teachers
Johnson v Poway Unified
• Public school math teacher did not have 1st Amendment right to plaster his class room with large posters promoting his view of role of God and religion in US history
• No Establishment Clause violation in District’s order to remove the posters
• When “the government acts as both sovereign and employer, this general forum-based analysis does not apply”
Slide 38 Legislative Prayer
Marsh v. Chambers • Opening legislative day with prayer was not an Establishment Clause violation • Seeking divine guidance is not an establishment • Tolerable recognition of widely held belief Rubin v. Burbank • Invocation ended “in the name of Jesus Christ” • Marsh applies only to nonsectarian prayer
Slide 39
Legislative Prayer (cont’d)
Turner v Fredericksburg VA • Requirement that legislative prayer be non-denominational was not an Establishment violation Simpson v Chesterfield County • Priestess of Wicca, “monotheistic witch who believes in the Goddess” challenged rule allowing only clerics in Judeo-Christian/monotheistic tradition to offer prayer • Legislative prayer is government speech, only Establishment Clause applies • Establishment Clause claim rejected, remand for dismissal Slide 40 Case Citations
Traditional Public Forum Areas Development of Gov’t Speech Doctrine U.S. v. Grace, 461 U.S. 171 (1983) (public sidewalks Rust v. Sullivan, 500 U.S. 173 (1991) around U.S. Supreme Court Bldg.) (earliest clear reference to gov’t speech) Boos v. Barry, 485 U.S. 312 (1988) Rosenberger v. Rector and Visitors of the University of (Embassy Row DC) Virginia, 515 U.S. 819 (1995) (funding of religious Sussli v. San Mateo, 120 Cal.App.3d 1 (1981) student groups) (inanimate signs on public property) Board of Regents of University of Wisconsin System v. Frisby v. Schultz, 487 U.S. 474 (1988) Southworth, 529 US 217 (2000) (mandatory student (sidewalks in residential areas are TPF) activity fee) U.S. v. Kokinda, 497 U.S. 720 (1990) Legal Servicies Corp. v. Velazquez, 531 U.S. 533 (2001) (to qualify as TPF, sidewalk must be connected to (funding of Legal Services Corp.) main pedestrian circulation system of city) USDA v. United Foods, 533 U.S. 405 (2001) (mushroom promotion) Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005) (mandatory contributions to Beef Promotion) Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) (permanent monument in city park) Slide 41 Case Citations
Establishment Clause Monuments on Gov’t Property Lemon v. Kurtzman, 411 U.S. 192 (1973) Van Orden v. Perry, Governor of Texas, (“standard test” for Establishment Clause) 545 U.S. 677 (2005) (Ten Commandments Monument Friedman v. Board of County Commissioners, Bernalillo on grounds of TX State Capital–No EC violation) County NM, 781 F.2d 777 (10th Cir., 1985) Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) (county seal with cross–EC violation) (permanent Ten Commandments monument in Murray v. Austin TX, 947 F.2d 147 (5th Cir. 1991) city park–No duty to accept other monuments) (city seal with cross–No EC violation) ACLU Florida v. Dixie County, 797 FS2d 1280 (USDC FL, July Vasquez v. Los Angeles County, 487 F.3d 1246 15, 2011) (Ten Commandments at entrance to court (9th Cir. 2007) (removal of cross from county seal) house–EC violation) Lynch v. Donnelly, 465 U.S. 668 (1984)
(Nativity scene in city’s Christmas display)
Public Art Projects People for the Ethical Treatment of Animals v. Gittens 396 F.3d 416 (DC Cir. 2005) (“party animals” project in DC) Newton v. LePage, 2012 WL 1005021, U.S.D.C. Maine (removal of art murals from State Dept. of Labor Bldg.) Hopper v. Pasco, 241 F.3d 1067 (9th Cir. 2001) (invitation to local artists to display works on walls of new city hall) Slide 42 Case Citations
Government Websites Legislative Prayer Putnam Pit v. Cookeville TN, 221 F.3d 834 (6th Cir. 2000) Marsh v. Chambers, 463 U.S. 783 (1983) (links on city website as a public forum) (invocations at Nebraska state legislative Page v. Lexington County School Dist. One, 531 F.3d 275 sessions–No EC violation) (4th Cir. 2008) (School Dist. website advocating Rubin v. Burbank, 101 CA4th 1194 (2002) position on pending state legislation) (Marsh applies only to non-sectarian legislative prayer) Sutliffe v. Epping School Dist., 584 F.3d 314 Turner v. City Council of Fredericksburg VA, 534 F.3d 352 (1st Cir. 2009) (District website linked only to (4th Cir. 2008) (requirement that legislative prayer be supportive websites) non-denominational) Free Speech Rights of Public Employees Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d Garcetti v. Ceballos, 547 U.S. 410 (2006) 276 (4th Cir. 2005) (High Priestess of Wicca excluded (When speaking in official capacity, DA did not have from list of clergy offering invocations) free speech rights of citizens.) Statutory Ban on Certain Government Speech Horstkoetter v. Dept. of Public Safety, 159 F.3d 1265 Stanson v. Mott, 17 Cal. 3d 206, 217, 130 Cal. Rptr. 697 (10th Cir. 1998) (Highway Patrol Officer’s sign display (1976) rights at his home) Miller v. California Commission on the Status of Women, Filarsky v. Delia, 2012 WL 1288731, 12 Cal.Daily.Op.Svc. 151 Cal. App. 3d 693, 697, 198 Cal. Rptr. 877 (1984) 4133, 2012 Daily Journal DAR 4777 (U.S. Supreme April 17, 2012) (right of special counsel to seek qualified immunity on same grounds as gov’t employees) Slide 43