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.

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:

Further reading

• Government Speech and Government as Speaker | Constitution Annotated | Congress.gov | Library of Congress