Government property and government speech.

AuthorBlocher, Joseph

ABSTRACT

The relationship between property and speech is close, but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of "property" do speakers need to have--physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship between property and speech creates a massive but underappreciated theoretical and doctrinal problem, which threatens the very existence of the public forum. The arc of First Amendment jurisprudence, particularly as manifested in public forum doctrine, has been toward limiting the government's right to exclude unwanted private speakers. Government speech doctrine, however, effectively reinvigorates the government's right to exclude unwanted speakers by transforming speech regulations into governmental expressive conduct, which under current government speech doctrine is entirely exempt from constitutional review. The government can therefore invoke not only its property rights, but also the expressive nature of their exercise.

Something has to give. Either not all property is expressive, or else not all expressive uses of government property are government "speech" exempt from constitutional scrutiny. Part I of this Article explores the first of these propositions, arguing that the relationship between speech and property requires a more nuanced treatment than it has heretofore received, and that property--whether conceived of as a thing, a legal entitlement, or a social relationship--both enables and is expression. But, as Part H of the Article shows, that conclusion cannot easily be extended into the context of government property and government speech. In government property/government speech cases such as Pleasant Grove City v. Summum, the question should be whether the government has the right to exclude unwanted speakers, not whether the exercise of such a right-assuming the government has it--is expressive. And the best way to answer the correct question is by looking not to formal property rights, but to social understandings of property.

INTRODUCTION I. THREE CONCEPTIONS OF PROPERTY AND EXPRESSION A. Disaggregating "Property, " Defining "Expression" 1. Three Conceptions of Property 2. Expression B. Property as a Place or Thing 1. Places and Things Enable Expression 2. Things and Places Are Expressive C. Property as a Legal Entitlement 1. Legal Entitlements (Especially the Right To Exclude) Enable Expression 2. The Right To Exclude Is Expressive D. "Informal" Property as Social Norms or Understandings 1. Social Norms and Understandings Enable Expression 2. Social Norms and Understandings of Property Are Expressive II. GOVERNMENT PROPERTY AND GOVERNMENT EXPRESSION A. The Public Forum as Government Property B. Nonexpressive Government Property 1. Incompatibility 2. Managing Incompatibility: Public Forum Regulation as Commons Management C. Expressive Government Property 1. The Reasonable Observer Approach to Government Speech 2. Racial Exclusion Cases 3. Inclusion of Religious Symbolism 4. Specialty License Plates CONCLUSION INTRODUCTION

Property and property rights are the basic mechanisms of expression. Without them, the marketplace of ideas as we know it would not exist. Access to the public forum allows speakers to communicate, intellectual property rights incentivize and protect creative expression, and the very exercise of property rights can itself be an expressive act--excluding protestors with whom one does not agree, for example. Property and speech are therefore deeply intertwined.

This close relationship, however, raises thorny problems when the property or speech at issue belong to the government. (1) Under current First Amendment doctrine, the growing category of government speech is totally exempt from scrutiny. (2) And if government property is "expressive" in the same way as private property, then the exclusion of unwanted speakers from public property would seem to be an act of government expression beyond the reach of the First Amendment. Of course, this runs directly counter to the very notion of the public forum, in which the government--despite having formal property rights--has only a limited right to exclude private speakers. The viability of meaningful public forum doctrine, therefore, depends on showing that government property and government speech are not totally intertwined. And this leads to a host of difficult questions. If the government decides to exercise its putative right to exclude an unwanted speaker, is it being expressive--and thus shielded by government speech doctrine--or is it engaging in impermissible viewpoint discrimination in a public forum? (3) What if the government divests itself of formal legal title to a piece of property that is linked to unconstitutional government expression--religious speech, for example (4)--but a reasonable observer would still perceive the property as belonging to the government? (5) Does the divestiture of formal property rights serve to erase government speech, just as their exercise in the former example arguably creates it?

Two recent Supreme Court cases illustrate and complicate these questions. (6) In Pleasant Grove City v. Summum, a religious order called the Summum sought to erect a monument in a government-owned park that already featured other religious iconography, including a prominent Ten Commandments monument. (7) The City of Pleasant Grove refused to permit the Summum monument, and litigation ensued--not under the Establishment Clause, but under the Free Speech Clause. (8) Framed thus, the question became whether the exclusion of the Summum monument was government speech, and therefore exempt from the First Amendment, or a restriction of private speech in a public forum, and therefore subject to heightened scrutiny. In finding the former, the Court emphasized that the city had "taken ownership of most of the monuments in the Park" (9) and that "[t]he monuments that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech." (10) In other words, the Court held that by exercising its property rights--both formally and as they were socially recognized--Pleasant Grove was also engaging in expression. Justice Stevens's concurring opinion put the matter simply: "This case involves a property owner's rejection of an offer to place a permanent display on its land." (11)

But in Salazar v. Buono, which many scholars see as a companion to Summum, (12) the Court faced a different scenario, because the formal and social understandings of property pointed in different directions. (13) In that case, a Latin cross had been privately constructed and maintained for almost seventy years in the midst of a vast public park. (14) In an effort to remedy this recognized Establishment Clause violation, Congress attempted to convey to a private party the small piece of property on which the cross stood, with the apparent understanding that the cross would remain in place. (15) However effective this transfer would be as a matter of formal property law, it surely would do little to change the public perception of who owned and approved the cross. The cross is set back hundreds of feet from the road in a huge park that is clearly public, (16) and a reasonable observer unfamiliar with the Buono litigation would almost certainly still perceive it to be public property and therefore, perhaps, government speech. (17) But in a fractured set of opinions, the Supreme Court remanded the case to the district court for further consideration of "the context in which the [land transfer] statute was enacted and the reasons for its passage." (18) That the Court left open the possibility of a continuing Establishment Clause violation, despite the government's divestiture of formal title, indicates its willingness to consider the relationship between government speech and government property as involving more than simply formal property rights.

This Article explores the deep structure of the relationship between government property and government speech--a relationship that underlies Summum and Buono and upon which the very idea of the public forum depends. It argues that the approach taken in cases like Summum--one which focuses on the expressiveness of formal property rights--supplies the correct answer to the wrong question. The Article begins by explaining in detail why the Summum Court was right to conclude that property and the exercise of property rights can be expressive. Part I of the Article explores this principle by disaggregating the idea of property into three major conceptions--a thing or place, a legal entitlement, and a social norm or understanding--and addressing each in turn. In doing so, Part I argues that property rights not only enable expressive acts, but also can serve as an independent means of expression. The government's rejection of the Summum monument, for example, both protected whatever preexisting message the government was communicating through its maintenance of the park (for example, "Pleasant Grove is wonderful") and also served as its own separate communicative act of rejection (for example, "Pleasant Grove disagrees with the Summum"). Thus, it is too simplistic to treat speech as if it were dependent on property; the two are interdependent and intertwined.

The Summum Court was therefore right, albeit for reasons it did not state, that property and property rights are expressive. In another respect, however, the Court erred--not by giving the wrong answer, but by asking the wrong question. The...

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