The Volokh Conspiracy
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Allowing "Black Lives Matter" Signs in Classrooms But Forbidding "All Lives Matter"/"Blue Lives Matter" Might Violate First Amendment
So holds the Eighth Circuit, concluding that the plaintiffs had sufficiently alleged that the "Black Lives Matter" signs were private speech, rather than government speech.
In Cajune v. Indep. School. Dist. 194, decided today by the Eighth Circuit, plaintiffs sued to challenge the School District's permission for some teachers to put up Black Lives Matter posters in classrooms (but not for members of the public to display other posters, such as All Lives Matter or Blue Lives Matter posters). The court, in an opinion by Judge Raymond Gruender, joined by Judges Bobby Shepherd and Steven Grasz, held that the plaintiffs stated a First Amendment claim: Plaintiffs had sufficiently alleged that the government was allowing private speech (which means the government generally can't discriminate based on viewpoint), rather than engage in government speech (where the government can select the viewpoints it conveys):
"The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech." "When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say."
The Constitution "relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks." In some situations, difficulties can arise in distinguishing between government speech and government regulation of private expression. To determine whether the government intends to speak for itself or to regulate private expression, we conduct a "holistic inquiry," looking to (1) "the history of the expression at issue," (2) "the public's likely perception as to who (the government or a private person) is speaking," and (3) "the extent to which the government has actively shaped or controlled the expression."
First, we look to the history of the expression at issue. We consider both the general history of posting messages on school walls as well as the specific history of the District in allowing similar messages to be posted on its walls. As to general history, the parties do not dispute that schools have traditionally controlled and communicated messages on posters placed on their walls. The District's specific history, however, tells another story. The District had not previously allowed private individuals to display a poster series like the Inclusive Poster Series on school walls. Indeed, Superintendent Baumann attempted on multiple occasions to exclude the BLM posters from the District, but the District acquiesced to the wishes of private persons after facing backlash from members of the community.
The District contends our inquiry into specific history is too "narrow" and that such a narrow inquiry would require courts to find a "mirror image historical analogy" to the conduct at issue. According to the District, we should look only to whether "school districts historically have and will continue to communicate messages of support for [their] students through posters on building walls." We agree with the District that a mirror image historical analogy is not required. But the analysis the District would have us adopt is indistinguishable from the analysis we have already conducted with respect to general history….
The district court found that the first factor favored the District's claim of government speech because the District "reviewed, authorized, and provided the posters to support staff [and students]." In drawing this conclusion, the district court improperly weighed the facts and construed them in the light most favorable to the defendants. The district court did not consider the involvement of private actors in the design and adoption of the posters. For instance, Superintendent Baumann told the school board that the District's goal was to allow "teachers" to use the BLM posters if those teachers felt that the posters had instructional value. {
We do not attribute the statements and actions of the individual teachers to the District. See Downs v. Los Angeles Unified Sch. Dist. (9th Cir. 2000) (distinguishing between a "teacher" and the "Los Angeles Unified School District").} In addition, Director Kass told Cajune that the posters were "requested by many staff and families" in the District. When viewing the facts in the light most favorable to the plaintiffs, these statements (and others) support a finding of private speech. Thus, while general history weighs in the District's favor, specific history weighs in favor of the plaintiffs.
Second, we consider the public's likely perception as to who—the government or a private person—is speaking. The District left to the discretion of individual teachers the decision of whether to post the BLM posters in their classrooms. The teachers were not required to display the posters in their classrooms. The location of BLM posters in the teachers' classrooms, as well as the discretion provided to teachers in choosing whether to display the posters at all, support a finding of private speech.
The District contends that "[a]ny reasonable member of the public would look at the [Inclusive] Poster Series and undoubtedly understand" the District to be communicating a message in support of its students and their academic achievement. To bolster its contention, the District points to several statements the District made during school board meetings indicating it approved of the BLM posters. The District also emphasizes that the posters contain the District's logo, slogan, website link, and a statement that "[t]his poster is aligned to School Board policy and an unwavering commitment to our Black students, staff[,] and community members."
The District would have us look solely to these indications of its approval as decisive while ignoring statements made by it that are indicative of private speech. On a motion to dismiss, we must view the facts in the light most favorable to the plaintiffs. Furthermore, the District would have us do what the Supreme Court admonished against in Matal v. Tam (2017). In Matal, the Court warned courts to be wary of situations where the government has "dangerous[ly] misuse[d]" the government-speech doctrine by attempting to pass off certain speech as government speech by "simply affixing a government seal of approval." We cannot say that the posters are government speech solely on the basis that the District affixed its seal of approval on them. Thus, with the facts viewed in the light most favorable to the plaintiffs, we find that the public would perceive private persons, and not the District, as having spoken through the BLM posters.
Third, we look to the extent to which the government has actively shaped or controlled the expression. The District contends it "retained complete control over the [BLM] posters." However, Superintendent Baumann disclaimed District involvement with the posters when he told the school board, "I don't know if I would say our goal is to have them up in the schools. Our goal is to let the teachers have the opportunity and to use [the posters] if they feel it has instructional value or value in their classrooms." District administrators confirmed on several occasions that the idea of the Inclusive Poster Series originated with private persons, including "staff and families" in the District. Moreover, the District did not prescribe the display of posters on specific walls or on any walls at all. Rather, it allowed individual teachers to make that decision. The District's statements and actions show that it relinquished control to private actors….
Government speech requires that a government shape and control the expression. In Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015), the Supreme Court evaluated whether the issuance of specialty license plates by Texas constituted government speech. In issuing specialty license plates, Texas had a review process and final approval authority over the content of the plates. However, the mere existence of these elements did not dissuade the Court from inquiring into whether Texas had "actively exercised" its "sole control over the design, typeface, color, and alphanumeric pattern for all license plates."
{The Court has described Walker as "likely mark[ing] the outer bounds of the government-speech doctrine." Matal.} Here, by contrast, the District stated that the Inclusive Poster Series was reviewed by an "equity group," "students," "staff," and "other advisory committees." The District's sole involvement was to replace a blonde girl in one of the posters with a blonde boy. Thus, the District maintained a passive role in the design of the posters.
Applying the government-speech doctrine holistically, we conclude the plaintiffs have pleaded sufficient facts to allow a court to draw the plausible inference that the BLM posters are expressions of private persons.
And the court also concluded that the plaintiffs sufficiently alleged that the district's action was viewpoint discrimination:
According to the District, however, it rejected Cajune's request because the phrases "All Lives Matter" and "Blue Lives Matter" "were created specifically in opposition to Black Lives Matter." That was impermissible viewpoint discrimination in that the rationale for the restriction was prompted by what the District viewed as the speaker's "motivating ideology" or their "opinion or perspective."
More precisely, given the discussion in the government speech section, I think the court means that this was viewpoint discrimination, and would be impermissible if the trial court (and possibly a jury) eventually concludes that the signs were private speech rather than government speech (a matter that has yet to be finally decided).
Thanks to Cedric Bond for the pointer.
