Government speech
Government speech is “speech” -- expressive activity that is “intended to be communicative” -- which is spoken by the government.
When policies are government speech, they are not subject to the Free Speech Clause. See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) ("The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.").
Alternatively, when a policy is a restriction of private speech on government property, then the Free Speech Clause does apply and the policy is subject to a "forum analysis." See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015) ("We have previously used what we have called 'forum analysis' to evaluate government restrictions on purely private speech that occurs on government property.").
Examples of both types of speech include:
- accepting monuments for placement in a city park, which “constitute[d] government speech” because the monuments were “meant to convey and have the effect of conveying a government message.” Summum, 555 U.S. at 472 (see below);
- "We must decide whether that rejection [of a Confederate flag license plate] violated the Constitution’s free speech guarantees. See Amdts. 1, 14. We conclude that it did not." Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 203-04 (2015)
Stated another way, the purposeful communication of the speaker’s own message generally qualifies as “speech.” Shurtleff v. City of Boston, 596 U.S. 243, 267 (2022) (using a multi-factor holistic approach).
Counterexample
Trademarks are not government speech:
| “ | The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may “disparage ... or bring ... into contemp[t] or disrepute” any “persons, living or dead.” 15 U.S.C. §1052(a). We now hold that [1] this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend. | ” |
Matal v. Tam, 582 U.S. 218, 223 (2017).
Case law
As of August 12, 2024, a total of 937 federal decisions (including 32 by the U.S. Supreme Court). The most prominent and recent precedent is Shurtleff v. City of Boston, 596 U.S. 243 (2022), quoted above.
University-level speech
Much of higher-level education is part of the government, such as state universities. The U.S. Supreme Court had this to say on the issue of whether speech by professors constitutes "government speech" for which there are no freedom of speech protections:
| “ | Hazelwood involved a school principal's decision to censor high school students' articles in a school-sponsored newspaper. The Supreme Court held that the newspaper, along with "other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school," may be "fairly characterized as part of the school curriculum . . . so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences." Hazelwood, 484 U.S. at 271. As such, the Supreme Court further held that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Id. at 273. But in so holding, the Court declined to determine whether this same standard applies to school-sponsored expressive activities at the university level. Id. n.7. Regardless, the Eleventh Circuit reads Hazelwood to offer "no indication that the [Supreme] Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views." Searcey v. Harris, 888 F.2d 1314, 1319 n.7 (11th Cir. 1989). Instead, [**30] "Hazelwood acknowledges a school's ability to discriminate based on content[,] not viewpoint." Id. (emphasis in original).14
Turning back to Defendants' main argument—that the First Amendment does not protect professors' in-class speech—they connect the professors' speech to the university's speech via Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). In that case, the Supreme Court held "that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti, 547 U.S. at 421. Thus, "[r]estricting 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." Id. at 421-22. "It simply reflects the exercise of employer control over what the employer itself has commissioned or created." Id. at 422 (citing Rosenberger, 515 U.S. at 833 ("When the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.")). But the Supreme Court expressly declined to "decide whether [its government speech] analysis . . . would apply in the same manner to a case involving speech related to scholarship or teaching." Garcetti, 547 U.S. at 425. In so doing, the Court recognized that "expression related to academic scholarship or classroom instruction [arguably] implicates additional constitutional interests that are not fully accounted for by [the] Court's customary employee-speech jurisprudence." Id.; see also id. at 438 (Souter, J., dissenting) ("I have to hope that today's majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write 'pursuant to . . . official duties.'" (quoting Grutter, 538 U.S. at 329)). |
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Pernell v. Fla. Bd. of Governors of the State Univ. Sys., 641 F. Supp. 3d 1218, 1239-40 (N.D. Fla. 2022).
U.S. Supreme Court
- Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (a Scalia decision about rejecting an Establishment Clause challenge to Ohio allowing, pursuant to a religiously neutral state policy, "a private party to display an unattended religious symbol in a traditional public forum located next to its seat of government").
- Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009) (an Alito decision holding that "although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.")
Ninth Circuit
- Eagle Point Educ. Ass'n/SOBC/OEA v. Jackson Cty. Sch. Dist. No. 9, 880 F.3d 1097 (9th Cir. 2018)
A total of 32 decisions (as of Aug. 13, 2024) in the Ninth Circuit address government speech while citing the Summum precedent: