The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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: