Imaginary threats to government's expressive interests.

• Author: Norton, Helen
• Position: Government Speech: The Government's Ability to Compel and Restrict Speech

INTRODUCTION

As the Supreme Court has recognized, the government must speak in a wide variety of ways if it is to function effectively. (1) Government expression also serves valuable First Amendment interests in enabling members of the public to identify and assess their government's priorities, thus informing and facilitating the public's participation in democratic self-governance. (2) For these reasons, the Court's government speech doctrine exempts the government's own speech from free speech clause scrutiny. (3)

But what does this mean in practice? More specifically, how can government protect its legitimate--and, indeed, valuable--expressive interests from encroachment without running afoul of the First Amendment's free speech protections for private speakers? As the Court has held, the First Amendment permits the government to refuse to allow other parties to join, and thus change or distort, its own message--i.e., private speakers cannot compel the government to deliver their own views. (4)

Too often, however, governmental bodies are asserting their own expressive interests to claim--and some courts are permitting them to exercise--the power to punish private parties' speech that does not threaten the government's ability to express its own views. For example, some federal courts have relied on government speech interests to justify the exclusion of peaceful dissenters from attendance at the government's public functions, (5) and another has invoked government's expressive interests to justify the punishment of student expression in public schools. (6) By identifying such troubling examples, this essay urges attention to, and concern for, this trend's potential spread.

This is only the most recent disquieting development to emerge from the Supreme Court's "recently minted government speech doctrine." (7) As I have written elsewhere, the Court "has been too quick to defer to public entities' assertions that contested speech is their own; indeed, it has yet to deny the government's claim to speech in the face of a competing private claim." (8) As just one example, the Court has been far too willing to permit the government to control the speech of its workers to protect its own asserted expressive interests. (9) In Garcetti v. Ceballos, (10) the Court held that public employees' speech made "pursuant to their official duties" receives no First Amendment protection because the government should be permitted to "exercise ... employer control over what the employer itself has commissioned or created." (11) It thus rejected the First Amendment claim of a prosecutor disciplined after writing an internal memorandum critical of the police. (12)

The Court's willingness to permit government control over public employees' expression by characterizing such speech as the government's own for which it has paid a salary--regardless of that expression's value to the public--has deeply disturbing implications not only for government workers' free speech rights, but also for the public's access to information about its government's effectiveness. (13) Indeed, lower courts now routinely apply Garcetti to reject First Amendment claims by police officers terminated for challenging public officials' illegal behavior, financial managers discharged for reporting fiscal improprieties, police officers fired for reporting health and safety violations, and health care workers punished for expressing concerns about patient care. (14)

As just one illustration of the post-Garcetti landscape, consider the Eighth Circuit's recent rejection of a First Amendment claim by Omaha's Public Safety Auditor, who was fired after she published a report that urged improvement in the police department's performance in certain areas. (15) The report "describe[d], by analyzing traffic stop complaints, how the [Omaha Police Department] finds itself currently estranged from many of the communities it serves and offers suggestions about how it can repair those relations." (16) The Eighth Circuit found the report to be unprotected speech under Garcetti because such expression was part of the auditor's official duties to review citizen complaints against the city's public safety agencies. (17) In other words, Garcetti means that even truthful expression by a government worker on a matter of great public importance is entirely unprotected when--and, indeed, because--the worker is simply doing her job. (18)

Garcetti and its progeny thus exemplify a government speech doctrine increasingly unmoored from its theoretical underpinnings-one that fails to recognize that the constitutional value of government speech is rooted entirely in its ability to further, rather than frustrate, the government's accountability to its electorate. The remainder of this essay identifies and explores new and related developments, as some lower courts now rely on government speech rationales to limit free speech rights far outside of the public employment context. These cases feature courts that are disturbingly quick to define the government's expressive interests extremely broadly, and quicker still to perceive private individuals' speech as threatening those interests. In short, although government has a substantial interest in protecting its ability to communicate its own views, these courts have been all too willing to imagine threats to that interest where none exist.

1. GOVERNMENT'S EFFORTS TO EXCLUDE DISSENTING ATTENDEES FROM PUBLIC FUNCTIONS TO PROTECT ITS ASSERTED EXPRESSIVE INTERESTS

   Some public entities have aggressively asserted--and some courts have accepted--government speech interests to justify the exclusion of non-disruptive dissenters from attendance at the government's expressive public functions. (19) These developments reveal a troubling misunderstanding of what the government speech doctrine does, and does not, empower government to do to protect its expressive interests, and a distressing failure to recall that the First Amendment requires the government's toleration of peaceful dissent. (20)

   That government acts as both regulator and speaker (along with its many other roles, such as employer, educator, property owner, etc.) does not mean that we cannot parse those roles when assessing the constitutionality of its action. (21) Although we should be slow to assume that government expression is inevitably coercive given the considerable instrumental value of transparently governmental speech, (22) we should be slower still to excuse government's punishment of private expression as an acceptable means of protecting its expressive interests. Yet some courts have displayed a disconcerting willingness to defer to government's claim that it may engage in coercion to protect its expression.

   For example, the Supreme Court recently denied certiorari in Weise v. Casper, (23) a case in which the lower courts expressly invoked government speech concerns to justify the exclusion of nondisruptive private citizens from an official governmental function based simply on their dissenting views. (24) Weise involved a First Amendment challenge by two individuals who were forcibly ejected from President Bush's speech on Social Security that was otherwise open to the public simply because they arrived at the event's parking lot in a car with a "No More Blood for Oil" bumper sticker. (25) As described by the Tenth Circuit on appeal, "Sometime before the President's speech, the White House Advance Office established a policy of excluding those who disagree with the President from the President's official public appearances." (26)

   The federal district court found no constitutional violation, using language that suggests a vivid imagination with respect to threats to government's expressive interests: "Plaintiffs [sic] complaint is essentially that they were not permitted to participate in the President's speech. President Bush had the right, at his own speech, to ensure that only his message was conveyed. When the President speaks, he may choose his own words." (27)

   True enough. But the plaintiffs in no way threatened that choice. They did not seek to participate in the President's speech or to interfere with his chosen message. They sought only to listen to it-and to ask a question if questions were permitted (28) Indeed, although the government speech doctrine certainly permits President Bush to control the content of his own speech and to refuse to share the event's podium and microphone with dissenters (or any other speakers), his expressive interests are in no way threatened by the mere presence of those who may disagree with his views.

   Nevertheless, the Tenth Circuit affirmed the lower court's dismissal of the plaintiffs' claims on qualified immunity grounds, citing--inter alia--the Supreme Court's most recent government speech decision, Pleasant Grove City v. Summum, before concluding that the law is not clearly established as to "how to treat the ejection of a silent attendee from an official speech based on the attendee's protected expression outside the speech area." (29) In other words, the appellate court suggested that the emergence of the government speech doctrine sufficiently muddied the legal waters to uphold the defendants' qualified immunity claim:

   At the most general level, Plaintiffs are correct that the government usually cannot discriminate against a speaker based on that speaker's viewpoint. But in qualified immunity cases, except in the most obvious cases, broad, general propositions of law are insufficient to suggest clearly established law. That is because the clearly established law must be such that it would put a reasonable official on notice that his conduct was unlawful. That is particularly true here. Beyond the abstract principle that the government ordinarily cannot discriminate based upon viewpoint, however, a First Amendment claim must be situated somewhere within the free speech jurisprudence because we accord speech various...