Government Speech & Use of Government Dollars to Favor or Disfavor Speech Based on its Content
The issues: What is "government speech"? May government use its own dollars to promote certain viewpoints or favored categories of speech? 

The government, like everyone else, is entitled to speak and express a point of view, at least when its speech doesn't violate a specific constitutional provision, such as the Establishment Clause.  According to the Court in Pleasant Grove v Summum (2009), a case which challenged a Utah town's decision to reject a monument promoting the Seven Aphorisms of the Summum religion after accepting various other privately donated monuments for its park, once speech is identified as government speech there is no First Amendment analysis required.  The First Amendment only applies to the regulation of private speech.  Questions become much more complicated, however, when the government is using its own dollars to promote or disfavor private speech.

The Government as Speaker

Board of Education v Pico (1982) is our first case that presents the issue of how the First Amendment applies to the government as speaker--here, the government speaking through the public schools it pays to operate.  (Note, this is a different issue than is addressed in our second set of cases where the government uses its funds to (arguably) encourage or discourage certain types of speech by participants in government-funded programs.)  The issue presented in Pico was whether the government, when using its dollars to purchase library books--or remove books previously purchased--is free to make whatever content-based decisions it pleases.  In Pico, several parents of students in a New York public school challenge the School Board's decision to remove nine controversial books from the school library.  Voting 5 to 4, the Supreme Court supports the parents' contention that the case should be sent back for a trial to determine whether the removal decision was an impermissible attempt to favor a particular political or social viewpoint, or whether the removal was a permissible decision based on valid educational concerns such an age inappropriateness, pervasive vulgarity, etc.  The four dissenters complain that the majority approach inappropriately places federal courts in the position of second-guessing decisions that should be left to local school boards.

In 2009, the Court considered a claim by members of the Summum religion that they had a First Amendment right to place a monument in a public park in Pleasant Grove City, Utah.  The Summum followers argued that, in the past, other private groups has been allowed to locate 11 other monuments on the park grounds, including a Ten Commandments monument donated by the Fraternal Order of Eagles.  The Summum members argued that the city's refusal to allow them to place a monument containing The Seven Aphorisms of Summum, while at the same time allowing the Ten Commandments monument to stand, amounted to both viewpoint discrimination and a violation of the First Amendment's Establishment Clause.  The Supreme Court rejected both claims, concluding that the monuments in the park were "government speech," not "private speech" and that the government was free to choose what messages it would like to communicate.  By allowing a private group to place a monument, the government "embraced" the speech and made it its own.  The city had been selective in allowing monuments to be placed in the park and never intended to open the park up as a public forum for monumental speech.

Six years later, in Walker v Texas Division of the Sons of Confederate Veterans, the Court extended the government speech doctrine to include the specialty license plate program adopted by Texas and other states.  The Texas program allowed private groups to propose designs for specialty license plates and, if a state board found the proposed plate unobjectionable, printed and distributed the plates for a charge to the sponsoring organization.  Hundreds of proposed designs were approved, including those promoting specific companies, universities, activities ("I'd rather be golfing") and organizations ranging from sororities to religious groups.  There were even specialty plates printed promoting NASCAR driver Jeff Gordon.  Yet the application of the Sons of Confederate Veterans for a specialty plate was turned down on the grounds that the plate, depicting a Confederate flag, was likely to be viewed by many motorists as racially offensive.  For a 5 to 4 majority, Justice Breyer concluded that the plates constituted government speech and that Texas was free to reject messages it choose not to communicate.  Justice Breyer argued that holding otherwise would force the state to allow a "Support Al Qaeda" license plate if it approved a "Fight Terrorism" license plate.  Justice Alito, in dissent, contended that the Summum case was easily distinguishable, and that no one could seriously contend that the State of Texas favored one burger chain over another or one university over another simply because of the plates on the road.  Motorists would be foolish to conclude, Alito said, that the message on a specialty license plate was a message endorsed by Texas.  Plain and simple, he said, the specialty license plate program was a way for the state to raise money.

"The Slants"

Walker was distinguished in a 2017 case involving the rejection of a trademark application by the music group, "The Slants."  The Patent and Trademark Office refused to register the trademark on the grounds that the mark was disparaging and offensive to Asian-Americans, even though the members of the Slants band were themselves Asian-Americans.  The group argued that by taking the slur as their name they might "reclaim" the term and drain its denigrating force.  Writing for the Court in Matal v Tam (2017), Justice Alito found that the Lanham Act provision disallowing registration of disparaging marks was unconstitutional.  Justice Alito wrote that the Court need not decide the question of whether the standard of review should be strict scrutiny or the less demanding intermediate scrutiny applied to commercial speech, because the government failed to establish that it used "narrowly tailored means" to serve even a "substantial interest," much less a compelling one.  The goverment argued that the government approval of a trademark turned the speech into "government speech," but the Court found little merit in that argument.  The Court said Walker "likely marks the outer bounds of the government-speech doctrine" and could be distinguished on three grounds.  First, the trademarks here (unlike the license plates) convey no state message.  Second, unlike license plates, trademarks are not closely identified in the public mind with the State.  And third, unlike license plates, trademarks are not manufactured or owned by the state and serve no function as "a government ID."

In Iancu v Brunetti (2019), the Supreme Court reversed a Patent and Trademark Office decision to refuse registration of the trademark "FUCT". The PTO concluded the trademark ran afoul of the Lanham Act's prohibition on trademarks that "consist of or comprise immoral or scandalous matter."  Writing for the Court, Justice Kagan concluded that the provision was unconstitutional in that it authorized "viewpoint discrimination" in violation of the First Amendment.  Relying on its earlier decision in Matal, Justice Kagan rejected the government's arguments that trademark registrations can be considered speech by the government or that a narrow interpretation of the Lanham Act (limiting its ability to reject registrations to vulgar and sexually explicit trademarks) might support the PTO's decision in this case.

Government Programs Restricting Participant Speech

Rust v Sullivan (1991) involved abortion-related speech restrictions attached to federal funding for providers of family-planning services.  In 1988, Health and Human Services announced a new, tough interpretation of federal funding legislation that would deny funding to any recipient who in the funded program counseled clients about abortions, referred clients to an abortion services provider, or even answered any client questions about abortion (except to say: "Abortion is not an appropriate method of family planning.")  Splitting 5 to 4, the Court upheld the abortion-related restrictions, suggesting that the government is free to use its own dollars to encourage only certain views it approves of, so long as it doesn't prevent the disfavored views from being expressed. The dissenters argued that the HHS rule was an unconstitutional viewpoint-based condition.

A decade later, in Legal Services Corporation v Velazquez, the Supreme Court faced an issue similar to that presented in Rust, but came out 5 to 4 the other way.  The case involved restrictions contained in a federal funding program for the Legal Services Corporation, which distributes funds to grantees who provide legal assistance to indigent clients in non-criminal cases.  The challenged restriction prevented grantees from, during the course of their representation of indigent clients, arguing that a state statute violated a federal law, or that a state or federal statute violated the Constitution.  The Court found the restriction to be viewpoint-based suppression of speech, and therefore to violate the First Amendment.  The Court (per Justice Kennedy) distinguished Rust, viewing Rust as involving a decision to not fund speech outside of the scope of the federal program, rather than an attempt to favor a particular viewpoint with respect to abortion.  In dissent, Justice Scalia said the LSC case was "on all fours" with Rust.

National Endowment for the Arts v Finley (1998) could easily be seen as raising issues similar to those presented in Rust and Velazquez.  The case involved legislation enacted by Congress in response to NEA funding of controversial artworks by artists such as Mapplethorpe and Serrano.  The legislation required the NEA to "ensure that (1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public."  The Court avoided having to face the issue of whether the Act was unconstitutional viewpoint-based discrimination by reading it to only require "consideration" of the decency issue, but not to prevent it from funding any art that it chose, regardless of how indecent it was or how little respect it showed for America's "diverse beliefs and values."  So interpreted, the Court found the Act not to offend the First Amendment.  This was almost too much for Justice Scalia, who found the Court's interpretation of the Act indefensible.  To him, the Act was intended to disfavor certain viewpoints expressed through art, and that was perfectly constitutional because the government ought to be free to spend its money as it sees fit.  Dissenting, Justice Souter also thought the majority's interpretation of the statute wrong, but reached a conclusion opposite that of Scalia: the law, Souter argued, was plainly unconstitutional viewpoint-based discrimination.

In U. S. v American Library Association (2003), the Court considered the constitutionality of a federal law that conditioned the receipt of federal dollars designated for enhancing the Internet services of public libraries on those libraries installing filtering programs that blocks the access of all patrons to obscene "visual depictions."  The American Library Ass'n challenged the regulation, arguing that the restriction would "overblock" and deny access to thousands of constitutionally protected Web pages.  Voting 6 to 3, the Court upheld the federal law.  The Court concluded that the law neither required public libraries to violate the Constitution nor imposed an unconstitutional condition on the receipt of federal assistance: it "did not distort the usual functioning of public libraries" (unlike Velazquez, where the usual functioning of private attorneys was found to be distorted by the funding condition).  In concurring opinions, two justices (Kennedy and Breyer) indicated that in a case where a library lacked the ability to "unblock" a constitutionally protected site, the law  might be vulnerable to an "as applied" First Amendment challenge.

In Agency for International Development v Alliance for Open Society (2013), the Court invalidated a provision in a federal law that required that all nongovernmental organizations receiving federal aid to assist in the worldwide fight against HIV/AIDS adopt a policy explicitly opposing prostitution and sex trafficking.  Alliance for Open Society International and other US groups engaged in fighting HIV/AIDS wanted to maintain their policies of neutrality on the issue of prostitution because they feared an anti-prostitution policy would alienate certain host governments and diminish the effectiveness of their efforts in fighting AIDS.  Voting 6 to 2, the Court concluded that mandating an anti-prostitution policy as a condition of receiving funds violated the First Amendment because other provisions in the federal law already prohibit any funds from being used to promote or advocate prostitution  or sex trafficking, ensuring that the funds will not be used in a way that undermines the federal program.  In dissent, Justices Scalia and Thomas argue that the challenged provision serves a legitimate government interest in that ensures that the funds provided to organizations will not free up other resources of the organizations that could then be used to promote prostitution and undermine the program's goals.  

Government as Speaker

Board of Education v. Pico (1982)
Pleasant Grove v Summum (2009)

Walker v Texas Div. of Sons of Confederate Veterans (2015)
Matal v Tam (2017)
Iancu v Brunetti (2019)

Pioneer Park in Pleasant Grove, Utah

Proposed specialty plate design at issue in Walker v Sons of Confederate Veterans (2015)

Government Programs Restricting Participant Speech
Rust v. Sullivan (1991)

Nat'l Endowment for the Arts v. Finley (1998)

Legal Services Corp. v. Velazquez (2001)

U. S. v American Library Ass'n (2003)
Agency for Int'l Dev. v. Alliance for Open Society (2013)

John Fleck, the other plaintiff and controversial performance artist discussed in Justice Scalia's opinion in NEA v. Finley.

Tests for Determining Constitutionality of Government Use of its Spending Power to Promote Favored Speech

Scalia's Review of Finley and Fleck
"Finley's controversial show, 'We Keep Our Victims Ready,' contains three segments. In the second segment, Finley visually recounts a sexual assault by stripping to the waist and smearing chocolate on her breasts and by using profanity to describe the assault.... John Fleck, in his stage performance 'Blessed Are All the Little Fishes,' confronts alcoholism and Catholicism. During the course of the performance, Fleck appears dressed as a mermaid, urinates on the stage and creates an altar out of a toilet bowl by putting a photograph of Jesus Christ on the lid." Justice Scalia, concurring in NEA v. Finley, (quoting Note, 48 Wash. & Lee L. Rev. 1545, 1546, n. 2 (1991)).


1. Does it seem odd, in Rust v Sullivan, that the Court could conclude that the HHS interpretation of the family-planning statute did not raise "grave constitutional doubts" when three members of the Court found the interpretation to flat out violate the First Amendment, as had two of the three courts of appeal to consider the issue?
2.  Should the government be able to promote or discourage whatever viewpoints it wishes, so long as it is using its own money to do so?
3.  Does Rust involve a right to receive information (a right of the women seeking abortion services) as well as a right of family planning personnel to disseminate information?
4.  If the regulations involved in Rust prohibited federal funding recipients from providing information about abortions even in their other unfunded programs, would the regulations clearly violate the First Amendment?
5.  Do you agree with Justice Scalia's statement in his dissent in Velazquez that the case is "on all fours" with Rust?  If not, how would you distinguish the invalidated restrictions on the speech of grantees of LSC funds from those upheld in Rust?
6.  If The NEA legislation were read as prohibiting funding for art that offends Americans' sense of decency or their religious and political values, would such legislation violate the First Amendment?
7.  If filtering programs were shown to have a very large error rate in blocking "obscene visual depictions," should that affect the constitutionality of the Children's Internet Protection Act upheld in U. S. v American Library Ass'n?  What if, for example, 50% of the blocked sites were innocuous?  Note that the filtering programs rely on interpretation of text.  As the 
A.L. A. brief pointed out, this has resulted in the blocking of such sites as the N. F. L.'s site for the 30th annual Super Bowl (Super Bowl XXX).
8.  If you disagree with the Court's decision in the A. L. A. case, what steps do you think the First Amendment allows the government to take to ensure that minors are not harmed by obscene visual depictions in public libraries?
9.  Do you see an important distinction, for First Amendment purposes, between the content-based decision of a school board to buy certain library books, on the one hand, and the content-based decision to remove certain books, on the other hand?  Should a school board be able to remove from library shelves books it deems "politically incorrect"?
10.  How should the First Amendment apply to removal of books from a public library?

Excerpts from the 9 books 
removed from the library in Pico

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