The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judicial Watch went to court Wednesday demanding access to paint the streets of Washington with its own political message after the city wrote "Black Lives Matter" on one street and allowed protesters to paint "Defund the Police" next to it.
The conservative group said the city has effectively turned its roadways into a public forum, and so it must allow those with differing viewpoints than BLM protesters to have the same access, or else it's violating the First Amendment.
Judicial Watch said it wants to paint its own motto, "Because No One is Above the Law."
I think this claim is foreclosed, though, by Pleasant Grove City v. Summum (2009). In Summum, the Court recognized that a city is free to put up certain monuments in its parks—and to accept selected monuments from private groups—without having to put up or accept other monuments. Such monuments are government speech, the Court held, and the government is free to discriminate based on viewpoint in choosing what messages to affirmatively promote this way:
A government entity has the right to "speak for itself." "[I]t is entitled to say what it wishes," and to select the views that it wants to express.
In the words of Rust v. Sullivan (1991), on which Pleasant Grove relied,
When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.
That's true of all viewpoints that the government chooses to express, however controversial or uncontroversial. And it's true even when the government accepts privately provided monuments (of the 15 monuments in the city park in Summum, 11 were donated by private entities):
Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land. It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner's behalf.
What's true for sculptures that the city allows to be placed in a park must also be true for writing that the city allows on its streets.
Now when it comes to private speech that merely uses the streets, sidewalks, or parks (rather than seeking to erect permanent or semipermanent structures there), the government must indeed allow all viewpoints and indeed speech of all kinds of content (setting aside the traditionally recognized exceptions, such as true threats). "Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional," and may be declared so whenever "a pattern of unlawful favoritism appears." (Thomas v. Chicago Park Dist. (2000).) For a good example of that, see Hoye v. City of Oakland (9th Cir. 2011), which held unconstitutional a city policy restricting speech on city sidewalks around abortion clinics; the policy was ostensibly content-neutral, but the court found that the city enforced it in an unconstitutionally content-based way:
The City's policy of distinguishing between speech that facilitates access to clinics and speech that discourages access is not content-neutral…. "[T]he fundamental principle behind content analysis is that government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." … To distinguish between speech facilitating access and speech that discourages access is necessarily to distinguish on the basis of substantive content. Asking a woman "May I help you into the clinic?" facilitates access; "May I talk to you about alternatives to abortion?" discourages it. Telling a woman, "It's your right to have an abortion!" facilitates access; telling her, "If you have an abortion, you will regret it!" discourages it.
Here, the City has conceded, both at oral argument and through Captain Toribio's deposition, that its policy is to permit speech on one side of a controversial public debate, but not on the other. The City's implementation and enforcement of the Ordinance is therefore indubitably content-based.
But when it comes to the government's own speech, the government can pick and choose what to say. And that includes permanent or semipermanent items on sidewalks, on streets, or in parks, such as monuments, plaques, street signs (including for streets that have ideologically laden names), traffic control signs, electronic message signs put up by the Transportation Department, or ideological messages written on the pavement.
(This post is adapted from one I posted last month, when this question first arose.)