Amendment 1 — Government Speech And Government As Speaker

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As an outgrowth of the government subsidy cases, such as Rust v. Sullivan,[1](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn1amd1 " 500 U.S. 173 (1991). ") the Court has established the “government speech doctrine” that recognizes that a government entity “is entitled to say what it wishes” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn2amd1 " Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). ") and to select the views that it wants to express.[3](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn3amd1 " Id. at 833. Accord, e.g., Shurtleff v. Boston, No. 20-1800 (U.S. May 2, 2022). ") In this vein, when the government speaks, the government is not barred by the Free Speech Clause of the First Amendment from determining the content of what it says and can engage in viewpoint discrimination.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn4amd1 " See Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009). Nonetheless, while the First Amendment’s Free Speech Clause has no applicability with regard to government speech, other constitutional provisions—such as the Equal Protection principles of the Fifth and Fourteenth Amendments—may constrain what the government can say. Id. at 468–69. ") The underlying rationale for the government speech doctrine is that the government could not “function” if the government could not favor or disfavor points of view in enforcing a program.[5](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn5amd1 " See id. at 468 ( “Indeed, it is not easy to imagine how government could function if it lacked this freedom.” ). ") And the Supreme Court has recognized that the government speech doctrine even extends to when the government receives private assistance in helping deliver a government controlled message.[6](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn6amd1 " See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 562 (2005). ") As a consequence, the Court, relying on the government speech doctrine, has rejected First Amendment challenges to (1) regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion;[7](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn7amd1 " See Rust, 500 U.S. at 194. ") (2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;[8](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn8amd1 " See Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006). ") (3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;[9](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn9amd1 " See Livestock Mktg. Ass’n, 544 U.S. at 562. ") (4) a city’s decision to reject a monument for placement in a public park;[10](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn10amd1 " See Pleasant Grove City, 555 U.S. at 472. ") and (5) a state’s decision to reject a design for a specialty license plate for an automobile.[11](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn11amd1 " See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 203 (2015). ")

A central issue prompted by the government speech doctrine is determining when speech is that of the government, which can be difficult when the government utilizes or relies on private parties to relay a particular message. In Johanns v. Livestock Marketing Association, the Court held that the First Amendment did not prohibit the compelled subsidization of advertisements promoting the sale of beef because the underlying message of the advertisements was “effectively controlled” by the government.[12](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn12amd1 " See Livestock Mktg. Ass’n, 544 U.S. at 560. ")

The line can also be blurred when “a government invites the people to participate in a program,” such as when the government opens up its property for use by private speakers.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn13amd1 " Shurtleff v. Boston, No. 20-1800, slip op. at 5 (U.S. May 2, 2022). In this context, the government speech doctrine sometimes overlaps with the public forum doctrine, discussed in , in determining whether the speech is governmental or private. ") In Pleasant Grove City v. Summum, the Court shifted from an exclusive focus on the “effective control” test in holding that “permanent monuments displayed on public property,” even when provided by private parties, generally “represent government speech.” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn14amd1 " See Pleasant Grove City, 555 U.S. at 470. ") In so concluding, the Court relied not only on the fact that a government, in selecting monuments for display in a park, generally exercises “effective control” and has “final approval authority” over the monument, but also on (1) the government’s long history of “us[ing] monuments to speak for the public” ; and (2) the public’s common understanding as to monuments and their role in conveying a message from the government.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn15amd1 " Id. at 470–73. ") In Walker v. Texas Division, Sons of Confederate Veterans, the Court relied on the same analysis used in Pleasant Grove City to conclude that the State of Texas, in approving privately crafted designs for specialty license plates, could reject designs the state found offensive without running afoul of the Free Speech Clause.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn16amd1 " See Walker, 576 U.S. at 203–04. ") Specifically, the Walker Court held that license plate designs amounted to government speech because (1) states historically used license plates to convey government messages; (2) the public closely identifies license plate designs with the state; and (3) the State of Texas maintained effective control over the messages conveyed on its specialty license plates.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn17amd1 " See id. at 210–13. Accord Shurtleff, slip op. at 6 ( “Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.” ). ")

By contrast, in Shurtleff v. Boston, the Supreme Court concluded that private flags flown at a city hall plaza did not qualify as government speech.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn18amd1 " Shurtleff, slip op. at 12. ") While “the history of flag flying. . . at the seat of government” suggested such flags usually conveyed governmental messages, other factors specific to the city program pointed the other way.[19](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn19amd1 " Id. at 7–9. ") Given that the city sometimes flew its own flags but regularly let private groups use the flagpole, the Court suggested the evidence was inconclusive on public perceptions.[20](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn20amd1 " Id. at 9. ") The critical inquiry was government control: the Court concluded that the city exercised no active control over the flag raisings or the messages of the flags.[21](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn21amd1 " Id. ") While the city might have exercised control over scheduling or physical maintenance, there was no evidence it had ever reviewed the flags or denied a group’s request, prior to the denial that formed the basis of the lawsuit.[22](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn22amd1 " Id. at 10–11. ") Accordingly, while Shurtleff looked to multiple factors to analyze whether the flags were government speech, effective control was “the most salient” factor in the case.[23](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn23amd1 " Id. at 10. ")

In 2017’s Matal v. Tam, the Supreme Court looked at a different type of activity to hold that trademarks do not constitute government speech, concluding that it is “far-fetched to suggest that the content of a registered mark is government speech.” [24](https://www.law.cornell.edu/constitution-conan/amendment-1/government-speech-and-government-as-speaker#fn24amd1 " Matal v. Tam, No. 15-1293, slip op. at 14 (U.S. June 19, 2017). ") The