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. "The Slants" 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)
Questions 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? |