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Government Speech: When does a city’s speech cross the line into unlawful censorship?

Free Speech

When it comes to exercising control over city-sponsored programs, Texas municipalities are often confronted with difficult First Amendment issues. For example, can a city’s Facebook page erase public comments or unfavorable hyperlinks on the basis that such items undermine the city’s message? Or can a city prohibit certain religious organizations from entering a float in the city’s annual parade by claiming that the organizations’ message runs contrary to the city’s beliefs?

Under the First Amendment, governmental entities, such as municipalities, are strictly limited in their ability to regulate private expression in “traditional public fora” and may not regulate speech “because of its message, its ideas, its subject matter, or its content.”  But aren’t municipalities entitled to voice their own opinions, as well?

More and more recently, the answer to this question has been a resounding yes.

Over the last few decades, courts have recognized that governmental entities are required to communicate to function. In this sense, a municipality may be viewed much in the same way as any private organization – with the US Supreme Court specifically holding that a government entity “is entitled to say what it wishes” and to select the views that it wants to express. However, such expressions can often result in suppression (at least on some level) of private speech in public forums.

The question, therefore, becomes: when is a governmental entity simply “speaking” as opposed to fundamentally regulating?

The U.S. Supreme Court has aimed to tackle these issues through the government speech doctrine – which holds that municipalities enjoy the right to engage in certain expression without subjecting themselves to First Amendment claims of suppression or viewpoint discrimination.

In the 2009 case, Pleasant Grove City, Utah v. Summum, the Supreme Court held that monuments in a public park constitute government speech because (although they are placed in a public forum and often funded by private entities), municipalities exercise control over what is displayed through submission requirements, policies, and legislative approval of specific proposals. On these bases, the Court found that the city could prohibit a private organization from erecting a monument containing the “Seven Aphorisms of Summum,” while simultaneously allowing a similarly sized monument of the Ten Commandments.

Contrast this with the 2022 decision of Shurtleff v. City of Boston, wherein the Supreme Court held that the city’s denial of a religious organization’s request to hold a “Christian Flag” raising ceremony in a public plaza was an unconstitutional regulation violating the organization’s free speech rights (and not government speech).

The Supreme Court has not yet provided a clear standard for when a city’s actions constitute speech and are a lawful exercise of free expression. However, one key component appears to be the existence of written policies addressing the subject speech. In City of Boston, the Supreme Court stated “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech — though nothing prevents Boston from changing its policies going forward.”

Governmental entities must walk a tight rope when it comes to regulating their constituents’ expressions to avoid constitutional hot water. And, while there are no clearly drawn lines in this arena, if municipalities want to claim protection from the government speech doctrine, they would be wise to devise clear and meaningful policies for all areas on which they wish to opine – and, perhaps most importantly, they must adhere to such policies rigorously and uniformly.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. 

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