The First Amendment and Government Property: Free Speech Rules (Episode 8)

Free Speech Rules: The First Amendment and Government Property

Say the government is handing out money, or access to government property, or some other benefit. Can it exclude certain kinds of speech, or certain kinds of speakers?

It’s complicated, but here are the five rules of the First Amendment and Government Property

Rule 1: A few forms of government property are treated as so-called “traditional public forums.” There, the government generally can’t exclude speech based on its content.

The classic examples are sidewalks and parks, as well as streets used for parades. Unless speech falls within one of the narrow First Amendment exceptions (such as true threats of crime, or face-to-face insults that tend to provoke a fight), the government can’t restrict it. Such places are technically government property; but that gives the government no extra authority to control such speech.

The postal system is analogous. At least since the mid-1940s, the Supreme Court has held that the government can’t exclude certain kinds of content from the mail. To quote Justice Holmes in an early case, “The United States may give up the Post Office when it sees fit,” but until then “the use of the mails is almost as much a part of free speech as the right to use our tongues.”

Rule 2: Sometimes, the government deliberately opens up property or funds in order to promote a wide diversity of private speech, using objective criteria. Many public schools, for instance, let student groups use classrooms that aren’t otherwise being used. Public libraries often offer rooms for meetings of community groups. Public universities might offer free e-mail accounts or web hosting to all students, and sometimes public universities offer money to student groups to publish newspapers or invite speakers.

These are called “limited public forums,” and the government can limit them to particular speakers (for instance, just students), or to particular kinds of speech (for instance, just speech related to the university curriculum). It can also have reasonable, viewpoint-neutral exclusions (for instance, saying that certain benefits or property can’t be used for promoting or opposing candidates for public office). But it can’t impose viewpoint-based criteria—it can’t, for instance, let all groups use a meeting room in a library but exclude racist groups.

Rule 3: A lot of government property is open to the public, but not for speech. Airports, for instance, are set up to promote transportation, not speaking; but people there will wear T-shirts with messages on them, talk to friends, maybe even approach strangers with leaflets. In these so-called “nonpublic forums,” the rule is much like in limited public forums: Speech restrictions are allowed, but must be reasonable and viewpoint-neutral.

Rule 4:  Some government property is set up for the government itself to speak; and there, the government can pick and choose what viewpoints it conveys or endorses. The walls of most public buildings are an example; the government can choose what art to put up there, and it might refuse to display art that conveys ideas that it dislikes.

Likewise, when the government spends money to promote its own messages, it doesn’t have to promote rival messages. It can have a National Endowment for Democracy without having to fund a National Endowment for Communism. It can put out ads supporting racial equality, without paying for ads supporting racism.

Sometimes there are close cases; for instance, when Texas authorized many kinds of license plate designs, but excluded Confederate flag designs, the Supreme Court split 5-to-4. The majority thought license plate designs were government speech, and the government could pick and choose which ones to allow, even when the government accepted dozens of designs requested by private groups. The dissent thought they were a limited public forum, in which viewpoint discrimination was forbidden because the government was supporting so many different (and often contradictory) forms of speech. But while there are close cases, many are pretty clear: The government often clearly promotes views it chose itself, and sometimes clearly promotes a wide range of private views.

Rule 5: Similar principles likely apply to government benefit programs, and not just to the provision of real estate or of money. Charitable tax exemptions, for instance, are likely a form of limited public forum: The government can discriminate based on content (you can’t use tax-deductible donations to support or oppose candidates for office), but not based on viewpoint.

Likewise, the Supreme Court held that the government can’t deny full trademark protection to trademarks that are seen as “disparaging,” “scandalous,” “immoral,” or racist. Such restrictions, the Court said, were impermissibly viewpoint-based.

Of course, private property owners aren’t bound by the First Amendment, whether they’re distributing money or access to real estate. And, as we see, the government as property owner isn’t bound by the First Amendment quite the same as it is when deciding whether to jail or fine them for their speech. But, except when it comes to the government’s own speech, viewpoint discrimination is generally forbidden even on government property.

So to sum up:

The government generally can’t exclude speech based on its content in “traditional public forums.”

The government can deliberately open up “limited public forums,” that are restricted to particular speakers or kinds of speech, but it can’t impose viewpoint-based criteria.

In “nonpublic forums,” speech restrictions are allowed, but must be reasonable and viewpoint-neutral.

For government property set up for the government itself to speak, the government can pick and choose what viewpoints it conveys or endorses.

Similar principles likely apply to government benefit programs, and not just the use of physical property.

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Written by Eugene Volokh, who is a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.

This is the eighth episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, a blog hosted at Reason.com.

This is not legal advice.

If this were legal advice, it would be followed by a bill.

Please use responsibly.

Music: “Lobby Time,” by Kevin MacLeod (Incompetech.com) Licensed under Creative Commons: By Attribution 3.0 License http://creativecommons.org/licenses/b…