FAN 122 (First Amendment News) Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine
The Supreme Court’s government speech doctrine offers a constitutional escape hatch — a means by which government and courts may disregard the boundaries that the Free Speech Clause of the First Amendment would otherwise impose. — Harvard Law Review (2015)
There may be situations in whichit is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech. –– Justice Samuel Alito for the Court in Pleasant Grove City v. Summum (2009)
It’s not easy teaching the government speech doctrine these days. Why? Because, as indicated by Justice Alito’s quip, there is uncertainty about when the government is and is not speaking on its own behalf. However difficult it was to read the doctrinal tea leaves in 2009 in the Summum case, it became even more difficult after the Court handed down its 5-4 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) (the Confederale licence-plate case). Dissenting in Walker, Justice Alito asked:
Suppose that a State erected elec- tronic billboards along its highways. Suppose that the State posted some government messages on these billboards and then, to raise money, allowed private entities and individu- als to purchase the right to post their own messages. And suppose that the State allowed only those messages that it liked or found not too controversial. Would that be constitutional?
What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.
Against that backdrop comes the cert. petition in Mech v. School Board of Palm Beach County. The issue in the case is this: “Does the decision in Walker allow the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection?” Truer still to Justice Alito’s hypothetical, the Mech case involves a school board, one which oversees the Palm Beach County School District.
The constitutional controversy arouse in connection with a pilot program that allowed schools to hang banners on their fences to recognize the sponsors of school programs. The petitioner David Mech (a/k/a The Happy/Fun Math Tutor) sued the School Board for violating his First and Fourteenth Amendment rights when three of the County’s public schools removed Mech’s math tutoring business banner advertisements from their fences, while permitting other private banners to remain. The Petitioner’s banners were removed after some parents complained that Mech’s tutoring business shared a mailing address at a private postal center with his former adult media business, Dave Pounder Productions. An Eleventh Circuit three-judge panel denied Mech’s First Amendment claims: “the banners for The Happy/Fun Math Tutor are government speech.”
→ Enter James K. Green, counsel of record for the Petitioner. As Mr. Green sees it:
- “The decision below presents the important unanswered question posed by the four dissenters in Walker v. Texas Division, Sons of Confederate Veterans,” and
- “The decision below conflicts with Walker and In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), petition for cert. filed sub nom. in Lee v. Tam (April 20, 2016) (No. 15-1293) which limit the applicability of the government speech doctrine.
→ Gary S. Edinger filed an amicus brief in support of the Petitioner on behlaf of the First Amendment Lawyers Association, the Free Speech Coalition, and the Woodhull Freedom Foundation. Amici argue:
- “The ‘government speech’ doctrine mustbe narrowly defined and carefully applied so that this exception to the First Amendment does not swallow the free speech rights of all,” and
- “The decision below illustrates exactly what can go wrong when the government speech doctrine is applied in an imprecise manner.”
- “The Eleventh Circuit’s decision below does not present the unanswered question(s) posed by the four dissenters in Walker“
- “The Eleventh Circuit’s decision below doe not conflict with the Federal Circuit’s decision in In re Tam, as the two cases are factually distinguishable,” and
- “The Eleventh Circuit’s decision below does not conflict with the Court’s decision in Walker or present the simple roadmap about which Mech warns.”
→ One possible problem for the Petitioner is that the four dissenters in Walker (Chief Justice Roberts and Justices Scalia, Kennedy & Alito) are no longer four. But will that fact be decisive?
→ The case was distributed for Conference of September 26, 2016.
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