Free Speech

Cities Can Accept Some Monuments for Parks—or Messages Painted on Streets—Without Having to Accept Others

Washington, D.C.'s writing "Black Lives Matter" on a street and letting others paint "Defund the Police" next to it doesn't require D.C. to let others paint messages on other streets.

|The Volokh Conspiracy |

Washington Times (Stephen Dinan) reports, about this Complaint:

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.)

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  1. Does this mean politicians can install self-serving messages, such as a mayor painting “Vote for Molly Brown!” on the streets, or erecting statues of themselves in public parks?

    1. It means that the thing preventing them from doing so isn’t the a First Amendment.

    2. I think “vote for Molly Brown” is different than the statue.

      LA used to have a politician named Kenneth Hahn. He named everything in his supervisorial district after himself. It was ridiculous. There were hundreds of signs throughout the district with his name on it. Still, that was government speech.

      But I don’t think the courts would ever consider “vote for Kenneth Hahn” government speech. It just obviously isn’t serving any governmental interest (whereas honoring politicians might).

      I think if the Mayor of DC painted an electoral solicitation on the street, at that point it would be subject to some sort of viewpoint neutrality analysis.

      1. I think if the Mayor of DC painted an electoral solicitation on the street, at that point it would be subject to some sort of viewpoint neutrality analysis.

        I don’t see why. It would, however, be the use of public funds for campaign purposes, which would be a violation of campaign finance law and whatever applicable species of honest services law there is.

        1. Assuming DC has those laws.

          What if a mayor of a city that is not subject to such laws put that on the street? Again, I doubt that courts would call this government speech- inherent in the notion of “government speech” is that the government is at least pursuing some public policy goal.

          1. Assuming the courts disagree with you, perhaps at least the painting would have to conclude, “Approved by Mayor Browser and paid for with your tax dollars.”

          2. I think inherent in the notion of government speech is that the government is saying it. That the hypothetical mayor is corruptly using the government for his own benefit doesn’t mean the government isn’t doing it. If the mayor sends the police to beat you up because you’re a business or political rival of the mayor’s, that doesn’t mean that the mayor and police are no longer acting under color of law. It just means they’re corrupt.

            1. That’s a terrible comparison. “Under color of law” creates a burden for the government. It means it has to follow the Constitution and may get sued under 1983.

              “Government speech” is an immunity and an exception to the First Amendment.

              It would absolutely, 100 percent, be an abuse of the government speech privilege for a politician to use it for purely personal gain. No reasonable judge would give the government that privilege if it used it for that.

              1. I disagree with your conclusion, of course, but also your framing. Government speech can be characterized neither as an immunity (from what?) nor as an exception to the first amendment.

                Consider what would happen if DC hadn’t painted this slogan (or a hypothetical campaign slogan): could you as a private citizen then have put your own slogan on the street? No – but not because of “government speech.” Because it’s not a public forum. The government speech doctrine just says that the government putting a message there doesn’t make it a public forum.

                1. I think David likely has the better argument. However, there was one aspect of Dilan’s argument that might work. Perhaps when the message benefits the person within the government who authorized the speech (as Dilan out it, the speech was uttered for purely personal gain), it isn’t government speech.

                  1. I am certainly not endorsing the misuse of government resources for personal gain! I just think that such misconduct is better dealt with within the framework of ethics laws, campaign finance laws, etc. than within the framework of the first amendment.

                    Let’s say that the mayor is acting purely ultra vires, painting a slogan on the ground for her personal benefit and not for any legitimate government purpose. Why on earth would the proper remedy for that be that anyone else who wants to can paint their own slogan on the ground? The government gets victimized twice instead of once?

                    1. I agree letting all comers paint is the wrong remedy. I’m just observing that perhaps Dilan has a point that it might be the remedy of last resort if other remedies don’t exist.

    3. Under the previous case law as characterized by Volokh, I don’t see any Constitutional limits to any government treating public property as a means to promote only one party, cause, or candidate, i.e; nothing to prevent Venezuelan Maduro styled governing.

      Of course, a fair minded person would, and should, conclude that the majority hijacking the vast resources of the state to bury the opposition’s access to legal monopolies of communication is totalitarian…after all, roads are a government monopoly.

      But there is it is, as brought to you by “our” Supreme Judges.

  2. But is it legal for DC to make “TAXATION WITHOUT REPRESENTATION” the default license plate logo? IIRC, this was done by Bill Clinton by executive order as he was leaving office. If you want another logo, you have to pay a fee. This logo is one of the slogans for the DC statehood movement.
    There is plenty of litigation regarding license plate logos and, IIRC, the rule is supposed to be that you can pretty much have any logo as long as the proper procedure was followed in the approval process.

    1. In Walker v. Texas Division, Sons of Confederate Veterans, the Court held that specialty license plates are government speech and upheld Texas’ nixing of a specialty plate featuring the Confederate battle flag.

      1. On the other hand, under Wooley v. Maynard, the driver is allowed to tape over the motto. Because the government can’t force you to convey a message you don’t want to convey just because your car is licensed.

        1. Can I cover the state’s name on my plate if I don’t agree with naming the state after a foreign monarch?

          1. Probably not, because the identification of the state has an administrative function.

            You can draw an analogy to United States v. O’Brien, the draft card burning case. You have a constitutional right to burn a flag, but not your draft card (if we reinstated the draft and had physical draft cards), because the requirement that you hold onto your draft card has a governmental administrative purpose unrelated to speech.

            So you can’t tape over the state name, or the plate number, but you can tape over any other irrelevant BS the state puts on the plate.

            1. Too bad. The plates are already dull. I was hoping to make them even more so.

              1. During a traffic stop, the officer said he could have cited me because the car dealer’s frame plate covered the state name.

                1. Yes. This is why Whren is such an expansive doctrine. Most of the country violates the traffic laws every time they get in a public road. Not all of them with license plate frames of course, but if it’s not that it’s something else. Police have essentially unfettered discretion to stop any motorist at any time.

    2. __Wooley v. Maynard_, 430 U.S. 705 (1977) held that you could remove or obscure the “Live Free or Die” on NH Plates.
      Why wouldn’t this apply to the DC ones?

    3. But is it legal for DC to make “TAXATION WITHOUT REPRESENTATION” the default license plate logo? IIRC, this was done by Bill Clinton by executive order as he was leaving office.

      You don’t RC. How on earth do you think POTUS can issue an executive order about DC license plates? It was done by the DC City Council. (Clinton did publicly approve of it, to be sure.)

      And yes, of course it’s legal.

      1. Well I am glad I was not giving my memories to any FBI agents. It was not my intention to give inaccurate information.

    4. Yeah, nothing in your post is true.

      The motto currently appearing in DC plates is “End Taxation Without Representation”.

      Clinton didn’t adopt the old motto by executive order. The DC Council adopted it. The Clinton order that your thinking of is his order that a plate with the motto go on the presidential limousine.

      You don’t have to pay an extra fee to get a different plate. Although the “End Taxation…” plate is the default, you can get a plate that says “www.washingtondc.gov” instead at no extra cost.

  3. Let’s have DC pull down those statues of dead white men and replace them with progressive heroes like Mao Zedung, Che Guevara, Fidel Castro, and Pol Pot. If we are going to allow some white men, exceptions can be made for Lenin and Karl Marx.

    1. I apologize for being grumpy and unpleasant this week. I broke my upper left arm last week while taking a walk. Fortunately, I don’t need surgery. But, I am in a lot of pain. I have been taking pain meds, but I only let myself have a few hours of partial relief per day. As it is, I will have to mild addiction when this is over. To make matters worse, the pain is not letting me sleep more than 3 hours per night. So, I am tired and grumpy.

      1. May God grant you relief from your pain, a good night’s sleep, and a speedy recovery.

      2. I hope you recover quickly and thoroughly.

        After a leg fracture, I took one opiate pill, then switched to a rotation of naproxen, ibuprofen, and acetaminophen, which worked in that context without the addiction concerns.

        1. I am sorry you had to deal with that pain. I am glad you found a non opiate solution. I am not so lucky; non-opiate pain meds generally don’t work for me (there are a few exceptions, but that is not relevant for this discussion).
          I am already addicted, but it is manageable. I have chronic pain and I take daily meds for that. Apparently I have a high tolerance for pain and, to quote my first pain management doctor, “don’t have an addictive personality.”
          Problem with opiates is that you eventually develop a tolerance and you need to take ever increasing doses in order to get the same therapeutic effect, though there is a maximum amount you can take; there are certain toxic effects for which you never develop a tolerance.
          I took moderate doses starting several years ago (4 pills per day) and things were great for the first three months. Then I developed a tolerance. Rather than increase my dosage, I cut back…down to 3 pills a day and currently 2 pills a day. I have to accept a certain amount of pain.
          Right now I am back up to 3 pills a day. My doctor strictly controls how much I get every month so it means that later this month I will have to cut way back. I will have to endure a few days of withdrawal symptoms (gosh I am lucky there).
          Sorry for this long lecture; this is an important issue for me. I see a lot of people opining about prescription pain pills. I see politicians and policy makers making rules that make little sense and people like me end up suffering. I tried to get onto some of the commissions for making policy and writing rules, but they don’t want to hear from a person like me.
          Thank you for your honesty on this.

          1. When I wrote “gosh I am lucky there,” what I meant was that my withdrawal symptoms are not severe and do not last long.

            1. I do not fault you for choosing your medications or claim any great insight with respect to pain management. I sensed you had concern about the addiction risk — which I shared when I was handed a bottle of opiates last year — and hoped my experience might be worthwhile for your consideration.

              Good luck.

              1. I am glad for your contribution. I do better when I listen to other people, especially those with different perspectives. You were wise to be worried about addiction; I was lucky in that I had a lot of information about them before I started taking them.
                I used to be one of those people who was big on getting people off of opiates…until I became a chronic pain patient and learned the error of my ways the hard way. My mother was on daily opiates for the last 15 years of her life and I kept trying to get her pain management doctor to wean her off those meds.
                I am not along in being wrong about this. When I was getting my broken arm diagnosed, the doctor told me about a colleague of his who did not believe in prescribing opiates…until the colleague broke his hip.
                I pray you go the rest of your life without needing pain meds.

        2. If you have legitimate pain, you CAN’T get addicted unless overprescribed because the opiate gets grabbed for the pain first and doesn’t make it to the receptors that lead to addiction.

          1. Yes and no. I have been taking opiates for several years. If I take too large of a dose, I don’t get high…I get nauseated. Prior to my broken arm, I would have good days (where I might take only one dose or even a mere half dose for my neck pain) and bad days (where I might take 4 doses). If I have several bad days in a row, I will start feeling sick about 12 hours after my last dose. I assume this is withdrawal. If I wait another 12 hours, the sickness goes away. If I take a half dose of the meds, the sickness also goes away. This could be imaginary sickness; I think it is withdrawal.
            These drugs will kill you if you are not careful. I am careful. I log every pill I take with two separate apps. I guess I also have a little issue with OCD.

            1. I am outside my field here, but as I was taught, if you don’t have a pleasure reward from the drug, you CAN’T get addicted.

            2. Gabapentin is said to be helpful, although if you start hallucinating, STOP IT!!!

      3. Good luck with your recovery GMT. You might ask your doc if you can get Toradol injections. It’s not addictive and is way better than high doses of otc nsaids. You might not be able to use as much as you want because of the risk of kidney damage though.

        1. Kidney damage; liver damage. My dad was an MD and treated cancer patients. He was a big advocate for treating pain and this was long before the opiate crisis (he retired in 1979) so I studied a lot about various pain meds.

          1. Ah no, you simply need the healthiest solution for any medical issue. A nice supply of medical marijuana–pain reduction and there are absolutely no negative side effects!
            I apologize for making jokes about your pain. Feel better.

            1. Jokes are appreciated! I am a big believer in laughing at bad things…I make fun of the bad thing; not the person suffering from it. As for medical marijuana, I am in a State Guard unit so that is not allowed. After I retire, I am willing to try it out.
              My dad was an MD; he believed in the scientific approach to medicine but but he was also a big believer in alternate treatments. He spent 6 years in Asia before WWII and was amazed at how effective traditional remedies (acupuncture and the like) could be.

      4. Feel better Grand Moff.

        1. Maybe I will have Lord Vader pick me up and take me for a spin in the Death Star.

          1. Just remember to get on his escape craft this time!!!!

            1. Oh we fixed that small thermal exhaust port, right below the main port. Too bad my arm hurts so much; Darth lined me up a date with Jyn Erso and I hear she is rather adventurous.

  4. What is true for any other city _might_ not be true for the Federal Seat (Washington, DC)… and the distinction is important. That the commonplace of the union must have rules which differ from other geopolitical subdivisions is a necessity: how can a citizen of a state be “welcome” to the Federal process if that Federal process is surrounded and controlled by a hostile government? Would The Hague (for example) be perceived as biased if city leaders unilaterally decided to paint streets with the slogan “Kill Americans”?

    1. Now you’re just making stuff up.

      https://www.theonion.com/area-man-passionate-defender-of-what-he-imagines-consti-1819571149

      As for The Hague, as long as the US has an “invade The Hague” statute on the books, I don’t think any of you get to have opinions about street signs there.

      1. For extra amusement (and admittedly wildly off-topic), I’ve just discovered that the President is authorised to send in Navy Seals to free various people from the evil clutches of the ICC, but he’s not authorised to bribe anyone to get them out:

        SEC. 2008. AUTHORITY TO FREE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND CERTAIN OTHER PERSONS DETAINED OR IMPRISONED BY OR ON BEHALF OF THE INTERNATIONAL CRIMINAL COURT.
        (a) AUTHORITY.—The President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.
        (…)
        (d) BRIBES AND OTHER INDUCEMENTS NOT AUTHORIZED.—This section does not authorize the payment of bribes or the provision of other such incentives to induce the release of a person described in subsection (b).

      2. I don’t think any of you get to have opinions about…

        This says everything about you that anyone needs to know.

    2. What you are saying is that the DC Self Government Act should be repealed.

      1. How would that change anything of consequence? Repealing the Home Rule Act changes the who, not the what.

  5. I’m still not that line of thought skipped seemingly effortlessly from simple speech (Rust v. Sullivan (1991)) to religion (Pleasant Grove). That seems to ignore that there is no equivalent to the establishment clause for speech in general.

    1. I thought Pleasant Grove held the government may exclude some monuments based solely on freedom of speech grounds without the need to address whether some monuments the government may choose to include might violate the establishment clause.

    2. Martinned: By the time Summum was decided, the Court had upheld a Ten Commandments monument in a park against Establishment Clause challenge (Van Orden v. Perry). The only question before the Court in Summum was whether the monuments should be viewed as private speech or government speech for Free Speech Clause purposes; and given Van Orden, it seems pretty likely that the monument would have survived an Establishment Clause challenge when treated as government speech.

      1. Thanks. I was aware that Van Orden was in the middle of all that, but I didn’t make the effort of sorting out the individual steps.

      2. Scalia, joined by Thomas, was explicit that the Ten Commandments would survive penning one of my favorite quotes

        The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire.

  6. I’m somewhat confused by the distinction being made here. What separates a government only letting one viewpoint be shown on government land(not government speech) vs only accepting one viewpoint to be displayed (apparently government speech)?

    1. The public forum doctrine.

  7. But can the government discriminate and favor one race? More than speech involved here.

    1. How does saying, “Black lives matter (as much as white lives)” favor one race over another?

      1. Because it doesn’t say that – it only says black lives matter.

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