GOVERNMENT SPEECH DOCTRINE League of California Cities

Presented by:

Randal Morrison (Sabine & Morrison)

Gerald C. Hicks

(Supervising Deputy City Attorney – Sacramento)

“Congress shall make no law . . . abridging the freedom of speech.”

Ratified in 1791

1st AMENDMENT Free Speech Clause

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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

Big Picture Trend

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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

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Big Picture Trend (continued)

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

Public Forum Doctrine – Traditional Public Forum

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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

Designated Public Forum

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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)

DEVELOPMENT OF GOVERNMENTAL SPEECH DOCTRINE

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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?

Bright Lines and Mass Confusion

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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

Establishment Clause

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City Seals and Symbols

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Original County Seal Current County Seal

Bernalillo County NM (Albuquerque)

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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.”

Constitutional Provisions

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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?

Meaning of the Original Seal

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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

Analysis – Bernalillo Seal

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Contrast: Seal of Austin TX

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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

Murray v. Austin TX

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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

Analysis – Austin Seal

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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)

Take Home Lesson – City Seals

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Gov’t Speech: Public Art PETA v Gittens

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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”

Party Animals – Wash. DC Public Art

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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

PETA’S Proposals

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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

PETA – Court Decision

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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.

Government Speech – Public Art Newton v. LePage, Governor of Maine

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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

Public Art – Designated Forum Contrast: Hopper v. Pasco WA

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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

Hopper v. Pasco

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Monuments Texas State Capital Grounds

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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

Van Orden v. Perry

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Must City Treat All Religions Alike? All or None?

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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

P leasant Grove UT v. Summum

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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

Summum Decision

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The

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Distinguishing Summum? ACLU v. Dix ie 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

ACLU v. Dix ie County FL

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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?

Gov’t Websites – Links as fora

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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

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Gov’t Websites (continued)

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

Website Lessons

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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

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Statutory Ban on Certain Gov’t Speech

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

Free Speech Rights of Public Employees

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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”

Public School Teachers

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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

Legislative Prayer

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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

Legislative Prayer (cont’d)

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Case Citations

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Traditional Public Forum Areas U.S. v. Grace, 461 U.S. 171 (1983) (public sidewalks around U.S. Supreme Court Bldg.) Boos v. Barry, 485 U.S. 312 (1988) (Embassy Row DC) Sussli v. San Mateo, 120 Cal.App.3d 1 (1981) (inanimate signs on public property) Frisby v. Schultz, 487 U.S. 474 (1988) (sidewalks in residential areas are TPF) U.S. v. Kokinda, 497 U.S. 720 (1990) (to qualify as TPF, sidewalk must be connected to main pedestrian circulation system of city)

Development of Gov’t Speech Doctrine Rust v. Sullivan, 500 U.S. 173 (1991) (earliest clear reference to gov’t speech) Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) (funding of religious student groups) Board of Regents of University of Wisconsin System v. Southworth, 529 US 217 (2000) (mandatory student activity fee) Legal Servicies Corp. v. Velazquez, 531 U.S. 533 (2001) (funding of Legal Services Corp.) 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)

Establishment Clause Lemon v. Kurtzman, 411 U.S. 192 (1973) (“standard test” for Establishment Clause) Friedman v. Board of County Commissioners, Bernalillo County NM, 781 F.2d 777 (10th Cir., 1985) (county seal with cross–EC violation) Murray v. Austin TX, 947 F.2d 147 (5th Cir. 1991) (city seal with cross–No EC violation) Vasquez v. Los Angeles County, 487 F.3d 1246 (9th Cir. 2007) (removal of cross from county seal) 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)

Monuments on Gov’t Property Van Orden v. Perry, Governor of Texas, 545 U.S. 677 (2005) (Ten Commandments Monument on grounds of TX State Capital–No EC violation) Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) (permanent Ten Commandments monument in city park–No duty to accept other monuments) ACLU Florida v. Dixie County, 797 FS2d 1280 (USDC FL, July 15, 2011) (Ten Commandments at entrance to court house–EC violation)

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Case Citations

Government Websites Putnam Pit v. Cookeville TN, 221 F.3d 834 (6th Cir. 2000) (links on city website as a public forum) Page v. Lexington County School Dist. One, 531 F.3d 275 (4th Cir. 2008) (School Dist. website advocating position on pending state legislation) Sutliffe v. Epping School Dist., 584 F.3d 314 (1st Cir. 2009) (District website linked only to supportive websites) Free Speech Rights of Public Employees Garcetti v. Ceballos, 547 U.S. 410 (2006) (When speaking in official capacity, DA did not have free speech rights of citizens.) Horstkoetter v. Dept. of Public Safety, 159 F.3d 1265 (10th Cir. 1998) (Highway Patrol Officer’s sign display rights at his home) Filarsky v. Delia, 2012 WL 1288731, 12 Cal.Daily.Op.Svc. 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)

Legislative Prayer Marsh v. Chambers, 463 U.S. 783 (1983) (invocations at Nebraska state legislative sessions–No EC violation) Rubin v. Burbank, 101 CA4th 1194 (2002) (Marsh applies only to non-sectarian legislative prayer) Turner v. City Council of Fredericksburg VA, 534 F.3d 352 (4th Cir. 2008) (requirement that legislative prayer be non-denominational) Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (4th Cir. 2005) (High Priestess of Wicca excluded from list of clergy offering invocations) Statutory Ban on Certain Government Speech Stanson v. Mott, 17 Cal. 3d 206, 217, 130 Cal. Rptr. 697 (1976) Miller v. California Commission on the Status of Women, 151 Cal. App. 3d 693, 697, 198 Cal. Rptr. 877 (1984)

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Case Citations