Free Speech

Does City's Painting of Messages on City Streets Require It to Give Equal Access to Other Messages?

No, if the city endorses the messages as its own.


Various cities are painting "Black Lives Matter," "End Racism Now," and similar messages on city streets. Does that create a "public forum" where everyone would have the same right to do so?

No. In Pleasant Grove City v. Summum (2009), 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, 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.

And that's true of all viewpoints that the government chooses to express, however controversial or uncontroversial.

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.

NEXT: Part II of Interview About my Book "Free to Move" with Yale Law Professor Jack Balkin

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  1. Functionally when the political pendulum swings, which is almost always does, I hope the people who celebrate the cause celebre realize the precedents they are setting which the next wave of raison de etre will follow.

    1. That’s a worthwhile warning as to many things. But as to this? Say this makes it more likely that some cities will write (now or later), “Support The Police” on their streets (or “Support The Troops” or “Family Values”) — why is that a big deal (as opposed to a mild annoyance) for anyone, including those who support the “Black Lives Matter” writing?

      1. Seems like if government chooses to speak explicitly, that’s useful. It delivers a notably clear benchmark to guide would-be voters, no matter what their views.

      2. Temporary writing in public forums is minimal impact (probably an unnecessary waste of public resources and unnecessary agitation), but I suspect some message like “support the police” will not be as tolerated by aspects of the community if/when they happen.

        Mainly though, I’m am thinking of some of the less than savory tactics like removing monuments, changing names of places or things, etc. Given the correct political climate MLK Blvd can come down just as quickly as a confederate statue for example.

        The Left is having their hay day right now. That is fine, but it is going to leave those who are going to relish when their time comes and in the meantime they are going to have plenty of time to refine and optimize the mechanisms they wish to use to make their point. Much like when the tortured becomes the torturer they are usually more effective at its methods because of past experience…

        1. Government, which is to say elected politicians, running scared of voters over official government policy and speech about it is government working as designed.

        2. ” The Left is having their hay day right now. ”

          Get an education. Start with standard English.

          1. It is going to be a nice sunny day for you AK when that pendulum swings….

              1. Are you against wishing people a nice day now?

                1. Jimmy,

                  The pendulum you’re talking about has been swinging left for well over 200 hundred years.

                  Sure, it inches to the right now and then (which is to be expected and to be honest encouraged so we don’t turn into an extremist society).

                  But make no mistake – we are moving in the progressive, liberal direction and there is no stopping it.

                  1. Does “left” for you include Stalinism and the Soviet Union? Maoism and the Great Leap Forward? Setting aside the image of a pendulum swinging longer in one direction than another is it possible that you are defining “left” as things you agree with while ignoring some of the less savory aspects?

                    1. It’s almost as though a two-dimensional view of history and ideology is reductive as all heck and someone can want liberal things without being supportive of the USSR or China or Venezuela.

                      Just like the right can want conservative policies and not love Pinochet. Though around here…

                    2. donojack – do us a favor and stop living up to your name.

                      “. . . sure, it inches to the right now and then (which is to be expected and to be honest encouraged so we don’t turn into an extremist society).”

                  2. We’re actually living in a Golden Age. Much like the Weimar Republic. It’s really wonderful to be on the right side of history and to know that we are on the right side of history.

                  3. Sarcastro,

                    Of course he wants liberal things. He just thinks he can describe “left” as all the liberal things he likes and nothing else. Also he’s embarrassed that his pendulum analogy was so stupid.

            1. Open wider, Jimmy.

              1. Hmmm…. No comment from Sarcastro on this, but he objects to the “nice day” comment?

                1. The left doesn’t police their own, never has. The right in conjunction with the left, puts a wall around their extremists.

                  1. How many of you called out RestoreWesternGenocide?

                    I also know the reference RAK is making, and it’s not the ‘someday soon you’ll get yours’ of JtD.

                    1. Oh, I did. Routinely. Go back and check if you’d like. For example, when was for shooting people I said HUAC and defunding the XYZ-studies departments would accomplish what he wanted with less violence.

                      The left doesn’t police it’s own, you included.

                      Now, I realize that the faker that is Rev is a bit like that guy on a street corner with the sandwich board telling us that alien invasion is imminent and to repent because the kingdom of heaven is at hand, the guy that decent people otherwise ignore, but it is telling (to use your hackneyed phrase) that you police people making empty threats against him but not the empty threats against others.

                    2. No, m_k you debated him.

                      That’s not the same thing.

                    3. Oh, now you are blind jabbing. Pointing out in ruthless logical debate the error of someone’s ideas, showing alternatives, and ultimately proving that they were wrong…that’s not policing them? I have to tell them to “shut up” like the left does to those who’s ideas they don’t like?

                      My my, what a delightfully kafka-eske dictionary you have.

                      So, again, you unintentionally proved my point at a personal level, made some months ago to you here on this blog, that the left doesn’t police their own.

                    4. Read Sartre about debating people like RestoreWestern.

                      You want me to deal with RAK, you did not deal with your racist asshat, you engaged him. That’s more than I’ve ever done.

                      By the company you keep etc. etc.

                      So maybe quit with your high horse.

          2. Rev. Clinger,
            Everyone has a right to choose their own pronouns fro whatever she wants. See how that works.

        3. MLK cheated on his wife — imagine a “family values” movement going after him for that…

        4. ” I suspect some message like “support the police” will not be as tolerated by aspects of the community if/when they happen.”
          This Black Lives Matter message wasn’t tolerated by aspects of the community either. Specifically, the police have been bitching about the whole thing.

        5. The Left is having their hay day right now.

          As sensible as it might be to “make hay while the sun shines” and therefore sensible to call a sunny day a “hay day”, that is not how it works.

          In the 16th Century, heyda meant something like “wow”. At some point in the next few hundred years, it got respelled as “heyday”, and people started use it to mean a day or period so wonderful that you would say heyday a lot, but the word is etymologically unrelated to “hay” or “day”.

          (Ignore jerks who try to make fun of you for not knowing that. We are all ignorant in one spot or another, what matters is what we do with what we do know.)

      3. ” Say this makes it more likely that some cities will write (now or later), “Support The Police”

        Oh, I’m thinking more along the lines of “Whites Only” or “We Hate N*ggers.” There are communities that would do that.

        And I think that “Abortion is Murder” would infuriate many.

        1. Why short-arm the racial slur, Dr. Ed?

          Prof. Volokh permits you to use the slur in all of its lettered glory. Not only that, he’ll “quote” your use and thank you for that.

    2. I think we need to distinguish between constitutional arguments and policy ones. Constitutionally, a state or city has every bit as much right to erect a new Confederate monument as it has to take down an existing one. Policy-wise, most would see a difference between the two.

  2. They’ve had political messages written on government buildings for a long long time, like “Police” and “J Edgar Hoover Building”. This is just a different message, and horizontal instead of vertical.

  3. And now, an Editorial Reply from the Grand Wizard of the KKK, who will argue that black lives do not matter.

    1. Or NARAL and Planned Parenthood — they do a brisk business at snuffing out black lives after all

  4. Question: with private parties adding “= Defund the Police” on the street next to the District’s BLM message, can anyone/everyone now start painting messages on the streets in D.C.? Is there a certain amount of time in which the District must paint over the private party’s message before the streets are deemed open for painted private speech (and efforts to ticket other painters or erase other messages becomes content-based discrimination)? Thanks. Would be interesting to see D.C.’s streets become a giant bulletin board.

    1. There could be a selective enforcement problem if the District were only enforcing vandalism laws against people expressing certain types of viewpoint and, a little more theoretically, if the District only cleaned up certain types of vandalism express certain viewpoints. Or if people really started painting messages all over streets and the District allowed it, it could become a public forum (but I think they could turn off the public forum by just changing the policy of not allowing such messages). But just based on this one message you note – Defund the Police – and the small amount of time it has been there, I don’t see any of these problems arising.

    2. I’m thinking more Federal Highway Code — Yellow is to be used for the centerline and nothing else.

      It would be like Dingbat Democrats replacing Red Lights with Blue ones on traffic lights.

  5. If a city wants to disfavor certain political or religious views, all it has to do is say that it endorses the message?

    There would be no problem with my city writing “Abortion Kills” and allowing anti-abortion protests, but prohibiting pro-abortion counter protests?

    I don’t believe you.

    1. jubulent: There would be no problem with your city writing “Abortion Kills” on its streets but not writing “Support Abortion Rights” — just like there’s no problem with the city putting up a monument to George Patton but not to Erwin Rommel. That’s government speech.

      But there would be a problem with the city allowing anti-abortion protests, but prohibiting pro-abortion counter protests (as I thought my post made clear). That’s private speech in a traditional public forum, as to which the government can’t discriminate based on viewpoint.

      1. This is routinely done. Some states require women seeking an abortion to hear about alternatives, while California recently required women seeking alternatives to hear about abortions. While both may be limited in what they can require a private, unsubsidized party to do, neither is limited in what they can do themselves.

        1. Those laws are regulations on private speech.

      2. This seems like an excessively subtle line drawing exercise.
        The city can’t allow anti-abortion messages while prohibiting pro-abortion messages, but it can promulgate its own message that exclusively supports one side. Following the logic of Pleasant Grove, its own message might be one the city decides to adopt after it is created:

        Although many were donated in completed form by private entities, the City has “effectively controlled” their messages by exercising “final approval authority” over their selection. […] The City has selected monuments that present the image that the City wishes to project to Park visitors; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument; and it has now expressly set out selection criteria.

        Can the city then permit only anti-abortion sidewalk graffiti that is “donated in completed form”, by deciding that it “presents the image that the City wishes to project” and adopting it as the City’s speech while removing all the adjacent pro-abortion messages that it doesn’t select?

        1. This seems like an excessively subtle line drawing exercise.

          This is by design. The government wants the ability to preserve it’s ability to discriminate against certain types of speech.

          If it’s unfavored speech then it falls on the “private speech” line and the local government is enjoined from endorsing such a message.

          If it’s favored speech then it falls on the “public speech” line and the government is permitted to endorse a certain message.

      3. But there would be a problem with the city allowing anti-abortion protests, but prohibiting pro-abortion counter protests

        Not if the government endorses the anti-abortion speech, under your own standing.

        In fact, there are plenty of cases where governments actually discriminate against certain types of protest, either subject-matter or viewpoint-based discrimination. These aren’t considered discriminatory.

  6. So all the bellyaching over the ten commandments and crosses is bs and could simply be slapped down by claiming the government has a secular admiration for these things?

    1. There’s certainly no Free Speech Clause problem with the city putting up the Ten Commandments but not other religious symbols — indeed, that’s precisely the fact pattern in Pleasant Grove v. Summum.

      From Allegheny in 1989 to American Legion in 2019, the Court interpreted the Establishment Clause as a constitutional limitation on government speech that endorses religion (one of the very few such limitations); that’s what made it at least potentially impermissible for the government to put up crosses and Ten Commandments (though even that was sometimes allowed). But I didn’t see the need to get into this, given that the question was about nonreligious government speech (and given that the endorsement precedents were overruled in American Legion).

      1. Are you sure there’s no endorsement test? I read American Legion as merely holding that historically rooted religious displays on public land are constitutional. They didn’t explictly overrule, e.g., the nativity scene cases which are endorsement cases.

        1. Yes: Alito, Roberts, Breyer, and Kavanaugh described the endorsement test as an application of Lemon (“The Court later elaborated that the ‘effect[s]’ of a challenged action should be assessed by asking whether a ‘reasonable observer’ would conclude that the action constituted an ‘endorsement’ of religion”) and then rejected applying it to “cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.” And Gorsuch and Thomas would have rejected it still more categorically. So there were six votes to completely inter the endorsement test, though not a majority to establish what exactly replaces it (except as to historically rooted practices, as with the cross or with legislative prayer). Thomas is right to say that, “As to the … test set forth in Lemon v. Kurtzman … and reiterated in County of Allegheny v. American Civil Liberties Union …, the plurality … rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.'”

          1. I thought the plurality’s argument rejection Lemon and the endorsement test was limited to “longstanding monuments, symbols, and practices.”

      2. So basically except for 2019, the religions that don’t call themselves religions are privileged over the religions that do. Got it.

        1. The Establishment Clause covers many things, but not stuff Amos thinks people can’t rationally believe.

  7. How would this cross with chalk “painting” speech, a la Twitter and others on the commercial side ( or individual temporary graffiti?

  8. I at least somewhat understand the distinction between a public forum and government speaking as government. But I would have thought (and hoped) that government may not promote one view over another on controversial or political topics because taxpayers are compelled to fund the speech.

    1. Huh? Of course I want my tax dollars to stop being used to pay Trump’s salary since he promotes views I can’t stand. But, it can’t possibly violate the First Amendment for him to accept the mone and spout his nonsense.

      1. I wasn’t thinking of politicians speaking as private persons, but of agencies promoting agendas with the intent of influencing popular votes (for instance, ONDCP paying for campaigns against repeal of state marijuana laws). It seems to me that the BLM slogan painted on a public street fits that category.

        1. I was referring to Trump speaking as President. Since he can advocate for whatever position he wants as President, all the while being paid with my tax dollars, so to can the ONDCP advocate for the repeal of state marijuana laws.

        2. But the government spends money to push particular ideas all the time — at various times in various places, “join the army,” “Communism is bad,” “follow the law,” “drugs are bad for you,” “schoolchildren, love America,” “the germ theory of disease is right,” “vaccinate your children.” It rarely spends money to push specific legislation, but it certainly does push broader ideas that (if accepted) will unsurprisingly change how people eventually vote.

    2. The Founding Fathers tried to use separation of church and state to protect the country from religious cults but then the cults simply renamed themselves politics and activism and today exert all the same negative influences they complained that churches once did. The same pattern or worse can be found in all the other countries this concept has been implemented. So its safe to say this whole experiment of trying to create a secular society has utterly failed not just in America but everywhere else in the world.

      1. I’ve got bad news about politics and activism in the Founders’ era…

        You want a theocracy to combat all the politics?!

        1. Violence, death, irrational beliefs. The world has been there done that. At the very least in the past you could generally count on people if they behaved badly to at least be behaving badly in an academically understandable self interest or fairly straightforward cult delusion. Now people are chopping off their genitals to ticker tape parades and slaves are apologizing and kneeling for being masters and it is the highest state dogma that men and women are identical down to the Planck level despite all your senses and logic telling you the opposite is the most obvious thing in the universe. We haven’t really approached such a bizarre and global delusion outside of maybe storybooks and even that is debatable.

          1. So you hate the world. You think the time you live in is special in how hateable it is.

            And the only cure is a Christian theocracy.

            1. That’s some speculative telepathy there…he didn’t mention sett ing up a Christian theocracy, in fact he repudiated it by affirming the Founding Fathers rejection of one. Sound like you’re taking him in bad faith (pun intended).

              He just pointed out that politics is the new religion for the left…hardly an unprecedented point, something that the smart set in the blogosphere has been saying for a long time. I mean, GK Chesterton said as much, that’s how old the observation is.

              1. its safe to say this whole experiment of trying to create a secular society has utterly failed not just in America but everywhere else in the world.

                1. That is exactly my point how you take that. Sorry you don’t see it.

                  1. What is a non-secular society but a theocracy, then?

                    1. First, one can point out the failures of liberalism without wanting a theocracy.
                      Second, a theocracy is defined as one where a divine being(s) rule via human intermediaries. Nobody really wants that.
                      Third, a non-secular society need not be a theocracy. That is, you can have a society that is personally religious, but they don’t put the clergy in charge, but rather they expect their politicians in a republic that they vote for to reflect their values.

                      Specifically, the Founders wanted a society that wasn’t a theocracy (no state religion) but presumed it would remain culturally Christian at least, because as John Adams pointed out, our experiment won’t work so well otherwise.

                      So, as the left continually shows us, Chesterton was right:
                      G.K. — ‘When men choose not to believe in God, they do not thereafter believe in nothing, they then become capable of believing in anything.’

                    2. Chesterson was a dope.

                      Superstition (or religion) is — like ignorance, or scientifically disproved theories, or medieval medicine, or racism, or other forms of bigotry — among the lesser elements of a society that diminishes as the society improves.

                      People should celebrate the continuing diminution of superstition in modern life.

                    3. m_k, read it again: trying to create a SECULAR SOCIETY has utterly failed

                      So that does away with your first point.
                      Your second point isn’t a point, it’s maybe a lemma with some question begging.
                      Your third point is just describing what America is, which does not explain Amos’ explicit calling out of the separation of church and state

                      And then you go on with your own thesis, having nothing to do with what your were originally trying to defend.
                      Your own thesis is no less dumb, though – the Founders were full of Deists, and did not assume Christianity would rule. They took steps to ensure it would not. (Not just Establishment – check out what they say about a religious test!)
                      Your textualism is nonexistant, your originalism is bad, and your end-goal is an ideological supremecy that is unamerican.

                    4. I will take Chesterton over Sarcastro, you’re a lightweight in comparison.

                      Your problem in this debate, is that you see in other people arguments what you want to see, not what they actually say, and thus the dismissive fervor you exhibit is really funny, particularly when I’m used the dictionary definition of “theocracy” and paraphrased John Adams who said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

                      Let me try another route. Take Japan and Hungary. Both are secular states. Both have an underlying religious culture, in Japan it’s Shintoism, and Hungary it’s Christianity. Both have a government that reflects in practice their underlying theistic belief structures. That belief structure is grounded in what they believe are objective values. And both have generally avoided most of the failures of liberalism. Now, would you classify either as “theocracy”?

                    5. Appeal to authority all you want, we’re a pluralistic society and we’re not going back.

                      All the other Founders hated Adams for being such a puritanical tool. Telling choice.

                      You do not appear to understand what you’re talking about re: Japan and Hungary.
                      government that reflects in practice their underlying theistic belief structures is meaningless.

                      State Shinto was abolished under the Japanese Constitution we set up,
                      Hungary is an illiberal democracy, so that’s not a great example. It looks like they have secularism in their Constitution as well.

                      From what I can tell, because you talk about this a lot but are quite cagey about implementation, either you want a religious test for our leaders, or you just want people to vote their conscience so long as it’s Christian. Either way you want some thought police action in this country.

                    6. If pointing out that Chesterton’s intellect is greater than yours is an appeal to authority, that’s a logical fallacy I’d make any day of the week. After all, aren’t we all just quoting some dead man’s ideas ultimately?

                      Let me correct that for you…*some of the Founders thought that Adams was a *monarchist. Telling way you dismiss evidence you dislike in such an off hand way without actually grappling with it.

                      In effect, you’re agreeing with me even though you don’t realize it and dodge my question. Japan and Hungary are not theocracies, thus if the solution to liberalism’s failure’s is changing the culture to make it less secular, the result is not necessary a Christian theocracy. Which, like I said, nobody (and I included me in that) wants. That would mean no religious tests for office or whatever other things you’re strawmanning me for.

                    7. Let me apologize, it was that faker Rev that called Chesterton a dope, not Sarc.

                    8. Nah, they also thought Adams was a prig. Because he was. Nothing wrong with that, but he was an outlier when it comes to faith. Thought New York fashions were scandalous, much to the scorn of his fellows.

                      So you continue to advocate for a thing that you never describe other than that we need to be ‘more’ Christian.
                      How that would be implemented, you do not say.
                      But I know enough to know the fruits of someone advocating for more Christianity in society. And I continue to tell you to get stuffed.

                      Telling you invoke Chesterton, but only for fallacy and insult. Methinks you should read him more closely, so you could make some of his arguments, not just use him as an excuse not to engage.

  9. In the present case, however, the government speech favors a particular racial group. Thus it is more than favoring a political cause, it is racially discriminatory.

    1. How is it discriminatory?
      What do you not have with that message up that you would have in the alternative?

      1. You sentence structure is incomprehensible, but it would be similarly to saying , “let’s pray to a specific religious God. It the specificity that crosses the line. Here only one “race” ( as in requires strict scrutiny) apparently matters.

        1. 1. Black Lives Matter is not putting down white people.
          2. Even if it were, you are not poorer for the government saying that.

          You can argue it’s a bad idea, but it is not unconstitutional.

        2. “Blacks Lives Matter” is not arguing that only one race matters. It is calling attention to the belief that all too often black lives are the only ones that do not matter.

      2. > How is it discriminatory?

        I know you’re not a lawyer and don’t really have any legal training, but in the legal profession we refer to something like this as “facially discriminatory.”

        That means that the statement explicitly refers to race. A facially discriminatory statement is subject to a higher level of scrutiny. That means the government must provide a higher justification for it’s statement than if the statement were not facially discriminatory.

        In this case, when the speech by the government explicitly refers to race (“Black Lives Matter”) the court assumes such a statement is race-based discrimination (probably because it is). This statement would therefore be subject to a heightened scrutiny, meaning that the government would have to show at least an important government interest.

        A non-racially discriminatory statement, like “Blue Lives Matter” would likely be subject to a lower level of scrutiny, where the government would only have to point to a rational basis for the speech (e.g. protecting police lives).

        In other words, governments aren’t allowed to be racist, even when the consequence of not being racist is race riots.

        1. Actually yes, I am a lawyer. Passed the bar and everything.
          Are you?

          Your analysis is full of leagalish language, not actual law.
          The EPC doesn’t deal with government speech. Speech does not discriminate.
          And strict scrutiny deals with creating legal distinctions between protected classes; it is not triggered just by mentioning a protected class.

  10. Of course the govt can decide its own message.

    We can declare War (which is the ultimate political message).

    Taxes (e.g. tax breaks) are messages.

    Laws (e.g. OSHA), are messages.

    Supreme Court decisions (e.g. Obergefell), are messages.

  11. One interesting question might be whether the original sculptor or muralist retains moral rights under VARA when the state adopts their art as speech. Many of the icons in the current debate went up (with regrettable motivations) in the 1950s and 1960s.

    Mr. D.

    1. It should protect against modifications or misuse, but not removal. I’m not sure about covenant protections as part of donations (The Santa Ana Zoo exists because the land grant required the city to keep 50 monkeys).

  12. I’m still waiting for a community to paint “We Hate N*ggers” on its streets out of spite — and that will end this.

    1. Or even “America, Love It or Leave It!”


        1. Reality check — there are White bigots too. Most of them are either Democrats or RINOs.

          Although the message that I think would prove Prof Volokh wrong would be “Jesus Saves.” I can name a dozen Maine communities where they’d paint that on a state highway tomorrow if they thought they could get away with it.

    2. No need to wait.

      Mississippi has the Confederate flag in its state flag, there are numerous statutes honoring Confederate soldiers and heros, and there are a handful of U.S Army bases named after Confederate generals.


      Steps are being taken to change all that?

      Nevermind. . . .

      Steps are being taken to

      1. Do you really think those conciliatory sops to the losing side’s pride mean “we hate niggers”?

        Man, if the left really does win the culture war fully, they won’t hesitate go around shooting the survivors, because you at least, don’t think Lincoln was right to “let ’em up easy” and that there is no value in reconciliation.

        1. Some sure take it that way, and others sure don’t care.

        2. Do you really think those conciliatory sops to the losing side’s pride mean “we hate niggers”?


          And in particular, much of the confederate paraphernalia was adopted during the civil rights era, not the aftermath of the war.

    3. Naw, they would put up an “it’s okay to be white” sign.

      1. Fly the “Fighting Whites” banner with pride boys!

  13. Question… would this extend to election politics?

    Could Charlotte, North Carolina put up “Vote Joe BIden” signs all over the city, and paint “Biden for President” across all city streets?

    There are laws for others… but do those laws apply to government?

    What about specific speech that is non-partisan but still part of an election – like “Donald Trump is a Racist” emblazoned across streets throughout Chicago and Detroit?

    Or how about a Republican governor decreeing that signs be placed throughout the state proclaiming Trump saved 10,000 lives in Florida?

    1. I suspect there are laws which forbid the use of public resources in campaigns (with the exception of matching funds which are doled out in a viewpoint neutral manner). Hypothetically if such laws didn’t exist, could the government paint “Biden for President” signs across city streets? I don’t know, but at least they would have to also paint “The City of Charlotte paid for and approved this message.”

  14. BLM *is* election politics!

  15. Question: I have a right to protest the city.

    If the city paints “Black Lives Matter” (or “Abortion is Murder”) in the middle of a busy street, do I have the right to bring in my Rent-a-Mob and protest it, blocking off the street?

  16. BLM painted DEFUND THE POLICE on the DC street without the explicit permission of the DC government.

    Some have observed that it is not difficult to change one letter to make it become:


    Suppose someone does this. What are the constitutional and legal implications?

    1. Eugene seemed to imply it’s government speech so long as the DC government endorses the message as its own regardless of whether it a priori gave explicit permission.

  17. Of course, the government is required to ban conservative slogans on license plates while, at the same time, is allowed to make liberal slogans mandatory. Just look at the default license plate slogan used on DC license plates. I love reading all the litigation to get pro-life slogans off of license plates and then compare that with the total absence of litigation in our nation’s capital.

    1. You….may want to check your latest precedents on license plates, chief.

  18. 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.

    I see a potential viewpoint discrimination problem there.

    1. You are not alone in that, Commenter. This was an issue before the Supreme Court relatively recently (1991) regarding abortion-related speech in Rust v. Sullivan.

      The Court held that the government is not infringing the free speech rights of individual people when the government declines to use viewpoint neutrality in its own speech.

  19. It’s come out that the city did not paint “Black Lives Matter” on the street. Rather, the city allowed a private organization – Black Lives Matter – to paint the street.

    Does this change your perspective?

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