First Amendment — Free Speech Clause: Role of Government

Amdt1.7.8.1 Overview of Government Roles

The Supreme Court has granted the government more allowance to control speech in certain contexts where the government is the speaker, or the government otherwise has a valid interest in regulating speech in order to perform certain functions like operating schools or prisons. For example, the government has an interest in educating children free from distractions. In the context of these special government roles, the government may impose some restrictions on expression to achieve its legitimate objectives, but if the regulation goes too far, it will violate the First Amendment.¹

This idea of granting deference to the government when it performs certain functions is related to the idea that certain individuals—such as members of the military—stand in a distinct relationship with the government.² To take another example, government employers have some leeway to control their employees’ words and actions similar to private employers, both because those employees stand in a distinct relationship with the government and because the government has a valid interest in efficiently providing public services.³ The issue of public employee speech is discussed in a subsequent series of essays, but it is similarly premised on the concept of government’s legitimate interests in performing certain functions.⁴

Amdt1.7.8.2 Government Speech and Government as Speaker

As an outgrowth of the government subsidy cases, such as Rust v. Sullivan,¹ the Court has established the “government speech doctrine” that recognizes that a government entity “is entitled to say what it wishes”² and to select the views that it wants to express.³ In this vein, when the government speaks, the government is not barred by the Free Speech Clause of the First Amendment from determining the content of what it says and can engage in viewpoint discrimination.⁴ The underlying rationale for the government speech doctrine is that the government could not “function” if the government could not favor or disfavor points of view in enforcing a program.⁵ And the Supreme Court has recognized that the government speech doctrine even extends to when the government receives private assistance in helping deliver a government controlled message.⁶ As a consequence, the Court, relying on the government speech doctrine, has rejected First Amendment challenges to (1) regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion;⁷ (2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;⁸ (3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;⁹ (4) a city’s decision to reject a monument for placement in a public park;¹⁰ and (5) a state’s decision to reject a design for a specialty license plate for an automobile.¹¹

A central issue prompted by the government speech doctrine is determining when speech is that of the government, which can be difficult when the government utilizes or relies on private parties to relay a particular message. In Johanns v. Livestock Marketing Association, the Court held that the First Amendment did not prohibit the compelled subsidization of advertisements promoting the sale of beef because the underlying message of the advertisements was “effectively controlled” by the government.¹²

The line can also be blurred when “a government invites the people to participate in a program,” such as when the government opens up its property for use by private speakers.¹³ In Pleasant Grove City v. Summum, the Court shifted from an exclusive focus on the “effective control” test in holding that “permanent monuments displayed on public property,” even when provided by private parties, generally “represent government speech.”¹⁴ In so concluding, the Court relied not only on the fact that a government, in selecting monuments for display in a park, generally exercises “effective control” and has “final approval authority” over the monument, but also on (1) the government’s long history of “us[ing] monuments to speak for the public”; and (2) the public’s common understanding as to monuments and their role in conveying a message from the government.¹⁵ In Walker v. Texas Division, Sons of Confederate Veterans, the Court relied on the same analysis used in Pleasant Grove City to conclude that the State of Texas, in approving privately crafted designs for specialty license plates, could reject designs the state found offensive without running afoul of the Free Speech Clause.¹⁶ Specifically, the Walker Court held that license plate designs amounted to government speech because (1) states historically used license plates to convey government messages; (2) the public closely identifies license plate designs with the state; and (3) the State of Texas maintained effective control over the messages conveyed on its specialty license plates.¹⁷

By contrast, in Shurtleff v. Boston, the Supreme Court concluded that private flags flown at a city hall plaza did not qualify as government speech.¹⁸ While “the history of flag flying. . . at the seat of government” suggested such flags usually conveyed governmental messages, other factors specific to the city program pointed the other way.¹⁹ Given that the city sometimes flew its own flags but regularly let private groups use the flagpole, the Court suggested the evidence was inconclusive on public perceptions.²⁰ The critical inquiry was government control: the Court concluded that the city exercised no active control over the flag raisings or the messages of the flags.²¹ While the city might have exercised control over scheduling or physical maintenance, there was no evidence it had ever reviewed the flags or denied a group’s request, prior to the denial that formed the basis of the lawsuit.²² Accordingly, while Shurtleff looked to multiple factors to analyze whether the flags were government speech, effective control was “the most salient” factor in the case.²³

In 2017’s Matal v. Tam, the Supreme Court looked at a different type of activity to hold that trademarks do not constitute government speech, concluding that it is “far-fetched to suggest that the content of a registered mark is government speech.”²⁴ The Court distinguished trademarks from the license plates at issue in Walker, a case the Court stated “likely marks the outer bounds of the government-speech doctrine.”²⁵ First, the Court noted that, unlike license plates, trademarks do not have a history of use to convey messages by the government.²⁶ Second, the Court further reasoned that the government does not maintain direct control over the messages conveyed in trademarks—indeed, “[t]he Federal Government does not dream up these marks, and it does not edit marks submitted for registration.”²⁷ And third, the public, according to the Tam Court, does not closely identify trademarks with the government.²⁸ Thus, while Tam demonstrates the Court’s continuing reliance on the multi-factor test for determining government speech from Walker and Summum, that test is not so flexible as to allow for expression like trademarks to be deemed the speech of the government.

In both Shurtleff and Tam, the Supreme Court held that because the flags and trademarks were not government speech, the government had acted unconstitutionally by creating viewpoint-based distinctions.²⁹ In Shurtleff, the Court noted that the city had made the plaza with the flagpole available to the public and had itself described that plaza as a public forum.³⁰ Accordingly, after ruling that the flags were “private, not government, speech,” the Court held that the city had violated the Free Speech Clause by excluding a flag based on its religious viewpoint.³¹ Although the Court’s opinions in Tam did not clearly agree on whether public forum analysis applied,³² a majority nonetheless ruled that the federal law barring disparaging trademarks entailed unconstitutional viewpoint discrimination.³³

Amdt1.7.8.3 School Free Speech and Government as Educator

Although the Supreme Court had previously held that students in public schools are entitled to some constitutional protection,¹ as are minors generally,² it established the controlling standard for assessing First Amendment rights in the school environment in Tinker v. Des Moines Independent Community School District.³ In that case, the Court articulated a need to balance students’ First Amendment protections with the goals and needs of educators and the community.

In Tinker, high school principals had banned students from wearing black armbands as a symbol of protest against the United States’ actions in Vietnam.⁴ Reversing the lower courts’ refusal to reinstate students who had been suspended for violating the ban, the Court set out a balancing test for applying the First Amendment in schools.⁵ According to the Court, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students,” and neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”⁶ Notwithstanding these protections, the Court affirmed the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards, “to prescribe and control conduct in the schools.”⁷ On balance, therefore, school authorities may restrict expression to prevent disruption of school activities or discipline,⁸ but such restrictions must be justified by “something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”⁹

The Court reaffirmed Tinker in Healy v. James, finding no basis to believe that, “First Amendment protections should apply with less force on college campuses than in the community at large.”¹⁰ In Healy, the Court held that students’ rights of association, implicit in the First Amendment, were violated when a public college denied a student group official recognition as a campus organization.¹¹ Denying recognition, the Court held, was impermissible if it was based on factors such as the student organization’s affiliation with the national Students for a Democratic Society, on disagreement with the organization’s philosophy, or on an unfounded fear of disruption.¹² The Court suggested that how courts strike the balance under the Tinker inquiry may differ depending on the students’ ages. The Court emphasized that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’” but also concluded that a college administration may require “that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law.”¹³

In 1982, the Court faced a conflict between a school system’s obligation to inculcate community values in students and the free-speech rights of those students. In Board of Education v. Pico, the Court considered a case challenging a school board’s authority to remove certain books from high school and junior high school libraries.¹⁴ The procedural posture of the case required the Court to assume that the books were removed because the school board disagreed with the books’ content for political reasons.¹⁵ A plurality of the Court thought that students retained substantial free-speech protections and that among these was the right to receive information and ideas.¹⁶ Although the plurality conceded that school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political,” it reasoned that a school board was constitutionally prohibited from removing library books in order to deny access to political ideas with which the board disagreed.¹⁷ The four dissenters argued that the Constitution did not prevent the school board from expressing community values in this way regardless of its motivation.¹⁸

The Court struck a different balance between student freedom and educator authority in Hazelwood School District v. Kuhlmeier,¹⁹ in which it relied on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need be only “reasonably related to legitimate pedagogical concerns.”²⁰ The Court distinguished the facts of Kuhlmeier from Tinker, explaining that “[t]he question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—-is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.”²¹ The student newspaper at issue had been created by school officials as a part of the school curriculum, and served “as a supervised learning experience for journalism students.”²² Because the newspaper was not a public forum, school officials could maintain editorial control so long as their actions were “reasonably related to legitimate pedagogical concerns.”²³ Thus, a principal’s decision to remove an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld.²⁴

In Morse v. Frederick,²⁵ the Court held that a school could punish a pupil for displaying a banner that said, “BONG HiTS 4 JESUS” at a school-sponsored event even absent evidence the banner caused substantial disruption.²⁶ The Court reasoned that schools “may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,”²⁷ but indicated that it might have reached a different result if the banner had addressed the issue of “the criminalization of drug use or possession.”²⁸ In his concurrence, Justice Samuel Alito commented that the Court’s opinion “provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue.”²⁹

While the Kuhlmeier and Morse cases focused on applying Tinker to on-campus speech, the Court addressed Tinker’s application to off-campus speech in its 2021 Mahanoy Area School District v. B.L. decision.³⁰ In Mahanoy, the Court held that while public schools may have a special interest in some off-campus student speech, there are several features of off-campus speech that diminish “the unique educational characteristics that might call for the special First Amendment leeway” to regulate speech that Tinker provided.³¹ The Court identified three distinguishing characteristics of off-campus speech that the Court reasoned made the Tinker standards less applicable.³² First, off-campus speech, in some circumstances, should fall within the zone of parental, rather than school officials’, responsibility.³³ Second, the Court reasoned that allowing schools to regulate off-campus speech would provide an opportunity to regulate student speech 24 hours a day, which may, in effect, chill students’ protected speech.³⁴ Third, the Court emphasized that while a school does have authority to regulate speech that interrupts the school’s work,³⁵ schools also have an interest in protecting students’ unpopular expressions, as America’s public schools are “the nurseries of democracy.”³⁶ Although the Court recognized that some off-campus speech—-such as severe bullying, threats, or participation in online school activities—may require school regulation, it was hesitant to establish any clear general rules about what constitutes off-campus speech.³⁷ In light of these considerations, the Court held that a school could not regulate a student’s social media posts that criticized the school because the circumstances of the speech—the fact that the posts were made at an off-campus convenience store on a personal cellphone to a limited group of people and did not name the specific school or school authorities—diminished the school’s interest in regulation.³⁸

The line of cases from Tinker to Mahanoy address the First Amendment rights of school and university students. Teachers and other employees of schools also have rights, but those rights are generally analyzed under rules that apply to the government as an employer.³⁹

Amdt1.7.8.4 Prison Free Speech and Government as Prison Administrator

A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or the legitimate penological objectives of the corrections system.¹ The Supreme Court has recognized that the government has legitimate interests in preserving internal prison order and discipline, maintaining of institutional security against escape or unauthorized entry, and rehabilitating prisoners.² In applying these general standards, the Court initially seemed to arrive at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between reporters and prisoners. Later cases took a more deferential approach to restrictions on both, and the Court walked back language in earlier rulings that suggested heightened scrutiny applied in assessing restrictions on inmates’ mail.

In Procunier v. Martinez,³ the Court invalidated mail censorship regulations that permitted authorities to hold back or to censor mail to and from prisoners whenever they thought that the letters “unduly complain,” express “inflammatory . . . views,” or were “defamatory” or “otherwise inappropriate.”⁴ The Court based this ruling not on the rights of the prisoner, but instead on the outsider’s right to communicate with the prisoner either by sending or by receiving mail. Under this framework, the Court held, mail regulation must further an important interest unrelated to suppressing expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation; and regulation must not be used simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary to protecting particular government interest involved.

In Turner v. Safley,⁵ however, the Court held that a standard that is more deferential to the government applies when the free speech rights only of inmates are at stake. In upholding a Missouri restriction on correspondence between inmates at different institutions, while striking down a prohibition on inmate marriages absent a compelling reason such as pregnancy or birth of a child, the Court announced the appropriate standard: “[W]hen a regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”⁶ Four factors “are relevant in determining the reasonableness of a regulation at issue,”⁷ the Court explained:

First, is there a valid, rational connection between the prison regulation and the

legitimate governmental interest put forward to justify it? Second, are there

alternative means of exercising the right that remain open to prison inmates? Third,

what impact will accommodation of the asserted constitutional right . . . have on

guards and other inmates, and on the allocation of prison resources generally? And,

fourth, are ready alternatives for furthering the governmental interest available?⁸

Two years after Turner v. Safley, in Thornburgh v. Abbott, the Court restricted Procunier v. Martinez to regulating outgoing correspondence, finding that the needs of prison security justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence from other prisoners, correspondence from nonprisoners, or outside publications.⁹

In Beard v. Banks, a plurality of the Supreme Court upheld “a Pennsylvania prison policy that ‘denies newspapers, magazines, and photographs’ to a group of specially dangerous and recalcitrant inmates.”¹⁰ These inmates were housed in Pennsylvania’s Long Term Segregation Unit and one of the prison’s penological rationales for its policy, which the plurality found to satisfy the four Turner factors, was to motivate better behavior on the part of the prisoners by providing them with an incentive to move back to the regular prison population.¹¹ Applying the four Turner factors to this rationale, the plurality found that (1) there was a logical connection between depriving inmates of newspapers and magazines and providing an incentive to improve behavior; (2) the Policy provided no alternatives to the deprivation of newspapers and magazines, but this was “not ‘conclusive’ of the reasonableness of the Policy”; (3) the impact of accommodating the asserted constitutional right would be negative; and (4) no alternative would “fully accommodate the prisoner’s rights at de minimis cost to valid penological interests.”¹² The plurality believed that its “real task in this case is not balancing these factors, but rather determining whether the Secretary shows more than simply a logical relation, that is, whether he shows a reasonable relation” between the policy and legitimate penological objections, as Turner requires.¹³ The plurality concluded that he had. Justices Clarence Thomas and Antonin Scalia concurred in the result but would eliminate the Turner factors because they believe that “States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivation—provided only that those deprivations are consistent with the Eighth Amendment.”¹⁴

Only two months after Procunier v. Martinez, the Court rejected a First Amendment challenge to regulations barring face-to-face media interviews with specific inmates.¹⁵ Prison restrictions on such interviews implicate the First Amendment rights of prisoners, the Court held, but such rights must be balanced against “the legitimate penological objectives of the corrections system” and “internal security within the corrections facilities,” taking into account available alternative means of communications, such as mail and “limited visits from members of [prisoners’] families, the clergy, their attorneys, and friends of prior acquaintance.”¹⁶

While reaffirming “news gathering is not without its First Amendment protections,”¹⁷ the Court held that the First Amendment did not impose on the government any affirmative obligation “to accord the press special access to information not shared by members of the public generally.”¹⁸ In Houchins v. KQED,¹⁹ a broadcaster sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration. Following initiation of the suit, the administrator of the prison authorized limited public tours. The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. The Supreme Court overturned the injunction obtained in the lower courts, the plurality reiterating that the First Amendment does not “mandate[ ] a right of access to government information or sources of information within the government’s control,” and “until the political branches decree otherwise . . . the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.”²⁰ Justice Potter Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have allowed the trial court to craft an injunction more narrowly drawn to protect the press’s right to use cameras and recorders so as to enlarge public access to the information.²¹