Nahmod Law

Justice Souter could not have imagined in his first year on the Court that Rust v. Sullivan, 500 U.S. 173 (1991), which he joined–see post of September 7, 2010–would be transformed into the paradigmatic government speech case. He also could not have foreseen where the government speech doctrine would lead.

As his views on government speech evolved, they became increasingly thoughtful, even if not daring and path-breaking like the dissents of Justices Holmes and Brandeis in the First Amendment‘s “clear and present danger” years.

Justice Souter became increasingly concerned with the adverse effects of expanding the scope of the government speech doctrine and the consequent immunization from First Amendment scrutiny of government-directed speech.

His attempt–see post of November 10, 2010–to ground the government speech doctrine on the marketplace of ideas rationale was noteworthy. In addition, his emphasis on political accountability and the related need to know that government is both speaking and communicating a particular message was insightful.

Finally, he warned in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), of the need to reconcile the government speech doctrine with the Establishment Clause in order to ensure that the former did not swallow up the latter. See post of December 30, 2010.

For his contributions to, and wise cautionary observations about, the government speech doctrine, now-retired Justice David Souter deserves our appreciation.

Pleasant Grove City v. Summum: Justice Souter’s Last Government Speech Opinion

In Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), the Court, in an opinion by Justice Alito, held that a city’s rejection of a privately donated monument offered by the Summum sect for permanent display in a public park did not violate the First Amendment despite the city’s acceptance decades earlier of a privately donated Ten Commandments monument in the same public park. The city’s rejection of the Summum monument was not impermissible viewpoint discrimination because its previous acceptance of the Ten Commandments monument was government speech.

The Government Speech Function of Monuments

The Court looked to tradition and history to determine that the Ten Commandments monument was indeed government speech:

“Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches,  columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression.When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.” 129 S. Ct. at 1132-33.

Then, contending that a reasonable observer would know that a monument on government land was necessarily representative of the government’s message, the Court analogized public property owners to other property owners:

“It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely–and reasonably–interpret them as conveying some message on the property owner’s behalf.”

Government Speech Need Not Communicate a Particular Message

Finally, the Court observed that a monument could be government speech even if it did not communicate a particular message. It said:

“Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by the briefing in this case illustrate this phenomenon.

What, for example, is ‘the message’ of the Greco-Roman mosaic of the word ‘Imagine’ that was donated to New York City’s Central Park in memory of John Lennon? Some observers may ‘imagine’ the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may ‘imagine’ a world without religion, countries, possessions, greed, or hunger. Or, to take another example, what is ‘the message’ of the ‘large bronze statue displaying the word “peace” in many world languages’ that is displayed in Fayetteville, Arkansas?”

129 S.Ct. at 1135 (citations omitted). Read the rest of this entry »

Justice Souter’s Penultimate Government Speech Case: Garcetti v. Ceballos

In Garcetti v. Ceballos, 547 U.S. 410 (2006), an exceptionally important public employee free speech case discussed at greater length in a prior post, the Court held that a deputy district attorney’s First Amendment rights were not violated when he was allegedly retaliated against by his supervisors for writing a memo to them complaining of problems in the prosecution of a criminal case. The Court declared that public employee speech engaged in pursuant to that employee’s official duties was not protected from employer discipline by the First Amendment.

Writing for the Court, Justice Kennedy indicated that there was a government speech element present whenever public employees spoke pursuant to their official duties:

The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

547 U.S. at 421-22. Read the rest of this entry »

The Government Speech Doctrine Comes of Age

The government speech doctrine came of age in a series of cases beginning with Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), where Justice Souter forcefully set out his own views in dissent.

But before addressing Johanns, I think it is worth mentioning that shortly after University of Wisconsin v. Southworth, 529 U.S. 217 (2000), discussed in a prior post, the Court held in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), that a federal statute violated the First Amendment because it prohibited recipients of Legal Services Corporation funds from providing legal representation for efforts to amend or challenge existing welfare laws, even if that legal representation was separately funded. Writing for the Court (including Justice Souter), Justice Kennedy explained and then distinguished Rust:

The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to government speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, or in instances, like Rust, in which the government “used private speakers to… transmit information pertaining to its own program.”

531 U.S. at 541 (citations omitted). However, according to the Court , not every government subsidy creates a government speech scenario. Where, as in Legal Services Corporation, government subsidized individuals and groups for the purpose of soliciting a diversity of views, then forum analysis is appropriate just as it was in Rosenberger. In these situations, when there is no “programmatic message,” the government may not discriminate on the basis of viewpoint. In the course of its opinion, the Court also emphasized the distorting effects of the funding condition on the adversary system and the legal process. For these reasons, the statute violated the First Amendment.

Johanns v. Livestock Marketing Association

Johanns v. Livestock Marketing Association, handed down in 2005, generated important doctrinal developments in government speech doctrine. Here, the Court, in an opinion by Justice Scalia, ruled that mandatory assessments on beef producers that were used to disseminate the advertisement, “Beef, it’s what’s for dinner,” did not violate the First Amendment because the advertisement constituted government speech. Johanns was very similar factually to an earlier case, United States v. United Foods, 533 U.S. 405 (2001), which had held that a government assessment on mushroom growers for generic advertisements was compelled speech forbidden by the First Amendment. But, unlike in United Foods, in Johanns the government argued that the advertisements were government speech since the Secretary of Agriculture exercised final control over the message. Read the rest of this entry »

University of Wisconsin v. Southworth

Two years after Finley, discussed in a prior post, University of Wisconsin v. Southworth , 529 U.S. 217 (2000) , presented a fact pattern similar to the one the Court had addressed in Rosenberger, also discussed in a prior post. This time, though, the First Amendment issue was raised by students who were being “taxed” to fund the speech of student organizations.

In Southworth, the Court, in an opinion by Justice Kennedy, held that a mandatory student activity fee assessed on students to support student organizations did not violate the First Amendment rights of students who objected to the political and ideological speech of certain funded organizations. Southworth was essentially a compelled speech/subsidy case, because the university had expressly declared that its disbursement of funds was not government speech. The Court therefore did not engage in government speech analysis.

A Possible Rationale for the Government Speech Doctrine: Political Accountability

Nevertheless, Justice Kennedy did discuss the government speech doctrine and its possible justification. He suggested that had Southworth involved government speech, it would have been outside the bounds of First Amendment scrutiny because political accountability, rather than judicial review, served to limit the government. “When the government speaks, for instance, to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.” 529 U.S. at 235. Read the rest of this entry »

Glickman v. Wileman Brothers & Elliott, Inc.

In Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), the Court held that an assessment imposed by the Secretary of Agriculture on fruit growers for generic advertisements did not violate the First Amendment. The Court explained:  “First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience. Second, they do not compel any person to engage in any actual or symbolic speech. Third, they do not compel the producers to endorse or to finance any political or ideological views.”

Justice Souter dissented, arguing that the four-part Central Hudson test applied to such compelled commercial speech, and that the assessment failed the test. In a footnote, Justice Souter raised the government speech doctrine only to say that the government had never argued that it was applicable in Glickman. Perhaps indicative of his growing discomfort with the government speech doctrine, however, Justice Souter did not describe the doctrine in expansive terms but said that the doctrine meant only that “the government may have greater latitude in selecting content than otherwise permissible under the First Amendment.” Read the rest of this entry »