Government Proclamations Are Government Speech, not Subject to Viewpoint Neutrality Rules

From Judge Timothy Corrigan's decision in Bloomberg v. Blocker, decided (clearly correctly, I think) Thursday:

Bloomberg is a citizen of St. Johns County, Florida, where Blocker is Chair of the St. Johns County Board of County Commissioners. On March 8, 2021, Bloomberg emailed St. Johns County … about a proclamation celebrating "LGTBQ [sic] civil rights progress and the contributions of LGBTQ individuals to the St. Johns County community…." … Michael Ryan, the St. Johns County Assistant Director of Public Affairs in the Office of the County Administrator, called Bloomberg … to report that "they would not consider proclamations that were 'controversial' or 'too far left or too far right,' and therefore that the proclamation would not come before the Board for consideration." …

[A] government entity may "speak for itself," "say what it wishes," and "select the views that it wants to express." … Bloomberg's First Amendment claims hinge on whether St. Johns County's proclamations are government speech or private speech. Here, the type of speech is a proclamation that, though written by an individual person or group, is adopted and communicated by elected officials at County Commission meetings. Historically, past proclamations have been on topics such as 4-H week, domestic violence awareness month, arts and humanities month, Whitney Labs, and Columbus Day, and they include a place for an elected official to sign at the bottom. The proclamation at issue includes the following language:

Now, therefore, I, under the authority vested in me as [ ] of St. John's [sic] County, Florida, do hereby proclaim St. John's [sic] County acknowledgment of pride history and the 52nd anniversary of Stonewall. I call upon all citizens to celebrate the progress that we have made, the contributions of the LGBTQIA+ community to our city, to stand as an ally with our friends and neighbors in the face of prejudice wherever it exists, and to embrace the great diversity within our community.

Because the proclamation is written using "I," with the Commissioner or elected body speaking in the first person, and with a space for the signature of an elected official at the bottom, the Commission endorses the content of the proclamation. (See Doc. 18 at 6, 13 ("A proclamation is an official document endorsed by the entire St. Johns County Board of County Commissioners.") (quoting the St. Johns County Government website)). Furthermore, by choosing whether to place certain proclamations on the agenda, the government maintains control over the message conveyed, even if the message was originally crafted by a private citizen….

Bloomberg attempts to distinguish "the decision as to whether the Board would or would not issue a proclamation" from "the content-based restriction to refuse to even put the LGBTQ Proclamation on the agenda…." Bloomberg claims that the latter is "an unlawful restraint" and that "[p]utting the LGBTQ Proclamation up for a vote is no more 'government speech' than a ballot initiative being placed on a ballot is 'government speech' or an 'endorsement' of that initiative." However, the Board's (or the Chair's) decision whether to place an item on the agenda is not speech of an individual to which First Amendment safeguards apply….

I expect the Supreme Court's decision this Term in Shurtleff v. City of Boston will be consistent with this, though, of course, one can't know for sure until the opinion is handed down; I talked about that case briefly on a Federalist Society Teleforum last month:

Comments

[DaivdBehar]

The government should not force citizens to celebrate delusions and serious mental problems, as if they were civil rights victories.

The sole purpose of life is reproduction. So who is more impaired? A kid in a wheel chair with cerebral palsy and intellectual disability who loves girls, flirts, and would love to have sex with one, or a gay billionaire who discovered the cure to cancer?

Why must the public be forced to pretend there is nothing wrong, when the most profound disability possible is true.

[DaivdBehar]

Of course, the scumbag Supreme Court will side with government partisanship, especially of the Democrat Party, and against all expressions supporting decency, and our American Way of Life.

[JasonT20]

Of course, the scumbag Supreme Court will side with government partisanship, especially of the Democrat Party, and against all expressions supporting decency, and our American Way of Life.

Right. 6 of 9 Justices appointed by Republican Presidents and being conservative will side with the Democratic Party "against all expressions of decency, and our American Way of Life."

What do you even think that the American Way of Life is? I get the impression that, in your mind, it is whatever you believe. Nothing more, nothing less.

[JasonT20]

The sole purpose of life is reproduction.

The purpose of their life is something everyone decides for themselves. If you think that having kids and raising them was your sole purpose, then that is your choice.

No one is being forced to celebrate LGBT status if a government body issues a proclamation celebrating civil rights progress for those people. If that was the case, then having a National Day of Prayer would be clearly unconstitutional as it would be forcing me to pray or recognize the power of prayer or whatever. Having Arbor Day would be forcing me to celebrate trees like some treehugging, environmentalist whacko.

[BillyG]

DavidBehar: The sole purpose of life is reproduction.

JasonT20: The purpose of their life is something everyone decides for themselves.

You two are having different conversations.

[JasonT20]

You two are having different conversations.

You can see from his reply that we are not. I knew what he was arguing, because I've seen it so many times before.

[DaivdBehar]

Jason. See the Selfish Gene. DNA, the Creator, does not care if you are a cockroach or a dinosaur. Its aim is to reproduce. It was written in 1976.

You can be a billionaire, writer of the novel of the century, and discoverer of the cure for cancer. If you are gay, you are a biological dead end. The poorest unfortunate in Kolcata, with 8 children, and nature says, that is success. To celebrate such infirmity is delusional, and tyrannical imposition of false beliefs.

[JasonT20]

David,

For a species that is not social, an individual that cannot or will not reproduce could be considered a "dead end",* But for social species, especially one as interconnected as humans are, any individual that can contribute to the survival and reproduction of others is not a such a dead end. The cliche "gay uncle" could contribute to the success of his family's genes by helping his nieces and nephews in various ways. In addition to that, whatever the biology is that leads to some people being LGBT, it may be an uncommon consequence of the existence of something that is beneficial to survival and reproduction, like sickle cell trait.

The truth is that we don't know enough about the biology of sexual orientation and the relationship between biology and psychology of gender to say that it is in any way unnatural for people to be LGBT. Or, as you put it, an "infirmity" that is "delusional". We may figure it out some day, but for now, you are trying to use a pseudo-scientific argument to cover your personal belief.

*Even in non-social species that are prey for other species, an individual that is not going to reproduce might still survive and grow enough to satisfy the needs of predators and contribute to the population's survival that way.

[DaivdBehar]

The gay guy may save the life of a breeder and contribute to much future reproduction. Granted.

DNA does not care.

[DaivdBehar]

Jason. The bullying is the thing that is offensive. I believe everyone should be left alone. In this case, sicko doctrines are forced on an unwilling citizenry that sees the obvious delusion. Government is best silenced. No matter the utterance, it will offend half the people.

[JasonT20]

What bullying? Are you being bullied because people hear you referring to "sicko doctrines" and call you a bigot because of that?

No matter the utterance, it will offend half the people.

You are overestimating how many people still think like you on most of these matters.

[JasonT20]

You still don't seem to understand. That gay guy contributing to the survival and reproduction of his relatives helps perpetuate his own DNA, as they share some of it. For a tribe or village, there is still more shared DNA than not. And his DNA definitely won't continue if the whole species goes extinct.

Basically, any argument that homosexuality is a biological dead end is ignorant of how evolution works.

[David Nieporent]

DNA, of course, is not sentient and has no "aim."

[Nisiiko]

The whole "government speech" doctrine needs to go.

[Eugene Volokh]

Wait: What do you mean? The government speaks all the time -- in choosing what to teach in public schools, in recruiting members of the military, in encouraging people not to drink and drive, in choosing what monuments to put up, etc. The government speech doctrine says that the government need not be viewpoint-neutral in deciding what to say in these contexts, including when it adopts speech suggested by third parties. What would you replace that doctrine with?

[DaivdBehar]

Government is a wholly owned subsidiary of the lawyer profession. The best replacement of that doctrine is silence. Nothing the lawyer says has any validity except in self dealing and in rent seeking. Silence will make government seem more intelligent.

[Stephen Lathrop]

Professor Volokh, when government speaks, how do we know it is government speaking? For instance, what do we conclude if the Mayor says, "A," and the City Council says, "Not A." Both are government speaking? Neither is government speaking?

What general rule might we follow to distinguish 1A protected government speech from unprotected speech by people who are employed by government? For instance, a Congressional Representative, an Ambassador, a Cabinet Secretary, and a school teacher are all government employees. Do any of them, by virtue of their office, enjoy a presumption that they speak for government at all times? If not, at what times do they speak for government? Is the test alike for all of them?

[JasonT20]

What general rule might we follow to distinguish 1A protected government speech from unprotected speech by people who are employed by government?

To clarify, my layman's understanding of the "government speech" doctrine is that government speech is not protected by the 1A, but that the 1A doesn't restrict government speech. Government cannot restrict private speech by telling people that they can't say X or must say Y, but since the government is not a private entity, it is not bound to maintain content neutrality on its own speech in the same way that it must maintain content neutrality over how it deals with private speech.

That said, I do see your point when it comes to whether someone employed by government is speaking for themselves or for the government. I am a public school teacher, so that definitely is something that concerns me. Even though as a matter of 1A law, I should have the freedom to speak for myself outside of my job, what I say publicly could still impact my employment. And the boundaries over what I can be told to say or not say by my employer on the job are also less clear to me than for general application under the 1A.

[MatthewSlyfield]

I do not know where the law stands. That said, here's my$0.02 as to what it should be.

For employees/agents of the government, if you are speaking on the clock as part of your job, it's government speech and you have no 1A rights against the government telling you what to/not to say.

This is as I understand it, very close to the standard for any employee of a private company.

If you are off the clock you can generally engage in private speech, with two important exceptions.

If your job comes with a uniform, of the clock or not, if you are speaking in uniform it's government speech.

If you are trying to claim authority on a given topic by reason of being a government employee as part of your speech, it's government speech.

You claim to be public school teacher. Your private speech on maters of public education should carry not one ounce more weight than that of any other citizen.

[JasonT20]

You claim to be public school teacher. Your private speech on maters [sic] of public education should carry not one ounce more weight than that of any other citizen.

What weight people will give my words is entirely up to them. That is the same as it is for anyone in any profession or trade. I'd likely give a plumber's speech on the best way to lay out the piping in a house or what materials to use more weight than other citizens without that expertise.

If instead, you mean that I should not use my employment by the government as a reason why people should listen to me more than others on matters of public education policy, then I agree. My opinion on education is certainly no more valid than that of a teacher at a private school. And my opinions on policies relating to public education should always be understood in the context of how I am a part of that system.

If you are off the clock you can generally engage in private speech, with two important exceptions.

Unfortunately, the two exceptions you state are not what was concerning me. I have a 1A right to engage in purely private speech about religion, politics, social and cultural issues, and so on. But even if I do nothing to advertise my status as a public school teacher when I speak on those topics, it could come back to bite me. It only takes one parent or even someone without any school-age children seeing what I say, finding out that I am a public school teacher, and then raising a stink about it on social media. They may claim that my personal opinions must be 'infecting' my teaching, that I would "indoctrinate" my students into believing the same things, or even just that a public school shouldn't employ someone with those views. Both administrators and our union leaders are constantly advising us to just stay off of social media or to be very careful about what we put on social media if we are on it for those reasons.

My career can be negatively impacted by what I say publicly, even when I am clearly speaking just for myself on my own time, and even if it is absolutely protected by the 1A. Of course, these days, that is clearly true for just about anyone. But it has always been true for teachers, and to an even greater degree even now.

[DaivdBehar]

Of course, the denier, Volokh, is not say, government is really a set of competing oligarchs, with officials mere fungible mouthpieces for their views.

This theory says, if you want change, start killing oligarchs, their families, down to the last kitten.

[DaivdBehar]

The homosexual agenda and the imposition of gay privilege on everyone is the result of the feeling of gay oligarchs. No point in attacking government officials, who are all fungible. Hunt and consequate the gay oligarchs. They are kowtowing to China, to gain market access to enrich themselves. By attacking the American Way of Life, they are servants of the Chinese Commie Party. Round them up. Try them. Shoot them in the court basement on reading of the verdict.

[Ed Grinberg]

I have no idea what Nisiiko had in mind, but here's a possibility:
(I am not seriously proposing this, but I bet you'd get plenty of takers for this)
Anything the government says must be "neutral." How do we know if something isn't "neutral"? Well, the government mustn't say anything "offensive" or "controversial" or "hateful." So, a proclamation celebrating "LGTBQ civil rights progress and the contributions of LGBTQ individuals to the [fill in the blank] community" is A-OK, while any sort of questioning of "LGTBQ" lifestyle (or the promotion / celebration of this lifestyle, even where children are involved) is "offensive" / "controversial" / "hateful."

[John F. Carr]

There has to be a line somewhere. You could imagine the mayor inviting companies to submit advertising or candidates to submit campaign material. The good stuff gets stamped "I approve this message", printed in bulk at city expense, and mailed out to every household. The rest is rejected as not suitable for government speech. Where do we draw the line?

In my opinion, a proclamation in support of sodomites and other damned souls fall on the allowed side of the line but the Boston flagpole censorship falls on the disallowed side of the line.

On the subject of taxpayer-subsidized speech, I used to get political mail franked by Barney Frank. Incumbents in Congress don't have to pay to boast about their records. Challengers do.