HomeMy WebLinkAboutlogged001Office of the Prosecuting Attorney
Michael E. Haas
Julian Trejo, Chief Deputy
Jefferson County Courthouse
David W. Alvarez, Chief Civil Deputy
1820 Jefferson Street
James M. Kennedy, Deputy
Post Office Box 1220
Adam H. Sturdivant, Deputy
Port Townsend, WA 98368
Lianne Perron-Kossow, Victim Services
Phone: (360) 385-9180
Fax: (360) 385-0073
NOT CONFIDENTIAL
To: Planning Commission and DCD
From: David Alvarez, Chief Civil DPA
Re: Governmental "free speech"
Date: November 4, 2015
Colleagues:
The Free Speech clause of the First Amendment, applied to the states and local
governments (as creatures of the states) by the Fourteenth Amendment, does not apply to
any level of government. I base this conclusion upon the holding of Pleasant Grove City
(Utah) v. Summum, 129 S. Ct. 1125 (2009), where the U.S. Supreme Court ruled that the
City did not have to allow a private group to put up its own religious monument in a
public park which already contained many other religious monuments privately donated.
Instead, the placement of a permanent but privately -donated monument in a public park
"is best viewed as a form of government speech and is therefore not subject to scrutiny
under the Free Speech Clause." The rationale for this decision was that the public park
was a place where government chose to "speak" through its decision as to what
monuments (statements) it choose to make inside that public park. Here is the relevant
portion of that Pleasant Grove City case, which continues to be good law, that is to say it
has not been overturned, distinguished or reversed:
"If petitioners were engaging in their own expressive conduct, then the Free
Speech Clause has no application. The Free Speech Clause restricts
government regulation of private speech; it does not regulate government
speech. See Johann v. Livestock Marketing Assn., 544 U.S. 550, 553, 125
S.Ct. 2055, 161 L.Ed.2d 896 (2005) ("[T]he Government's own speech ... is
exempt from First Amendment scrutiny"); Columbia Broadcasting System,
Inc. v. Democratic National Committee, 412 U.S. 94, 139, n. 7, 93 S.Ct. 2080,
36 L.Ed.2d 772 (1973) (Stewart, J., concurring ("Government is not
restrained by the First Amendment from controlling its own expression"). A
government entity has the right to "speak for itself." Board of Regents of Univ.
of Wis. Svstem v. Southworth. 529 U.S. 217, 229. 120 S.Ct. 1346, 146
L.Ed.2d 193 (2000). "[1]t is entitled to say what it wishes," Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132
L.Ed.2d 700 (1995), and to select the views that it wants to express. See Rust
v. Sullivan, 500 U.S. 173, 194, 111 S.Ct. 1759, 114 L.Ed.2d 233 1991);
National Endowment for Arts v. Finley, 524 U.S. 569, 598, 118 S.Ct. 2168,
141 L.Ed.2d 500 (1998) (SCALIA, J., concurring in judgment) ("It is the very
business of government to favor and disfavor points of view").
Indeed, it is not easy to imagine how government could function if it lacked
this freedom. "If every citizen were to have a right to insist that no one paid by
public funds express a view with which he disagreed, debate over issues of
great concern to the public would be limited to those in the private sector, and
the process of government as we know it radically transformed." Keller v.
State Bar of Cal., 496 U.S. 1, 12-13, 110 S.Ct. 2228, 110 L.Ed.2d 1 0 990).
See also Johanns, 544 U.S., at 574, 125 S.Ct. 2055 (SOUTER, J.,
dissenting) ("To govern, government has to say something, and a First
Amendment heckler's veto of any forced contribution to raising the
government's voice in the 'marketplace of ideas' would be out of the
question" (footnote omitted)).
A government entity may exercise this same freedom to express its views
when it receives assistance from private sources for the purpose of delivering
a government -controlled message. See id., at 562, 125 S.Ct. 2055 (opinion of
the Court) (where the government controls the message, "it is not precluded
from relying on the government -speech doctrine merely because it solicits
assistance from nongovernmental sources"); Rosenberger, supra, at 833, 115
S.Ct. 2510 (a government entity may "regulate the content of what is or is not
expressed ... when it enlists private entities to convey its own message").
47 This does not mean that there are no restraints on government speech. For
example, government Aspeech_must comport with the Establishment _
-� Clause. The involvement of public officials in advocacy may be limited bylaw,
reguation, or practice. And of course, a government entity is ultimately
"accountable to the electorate and the political process for its advocacy."
Southworth, 529 U.S., at 235, 120 S.Ct. 1346. "If the citizenry objects, newly
elected officials later could espouse some different or contrary position." Ibid.
You may recall that the Establishment Clause states that government may not establish an
official religion. Governmental speech is also reined in by rules regarding def_am_ ation,
c_ampaignin -related rule.,_gifting public funds, etc. Jefferson Transit would presumably
be allowed to use the changeable message board to advocate a "yes" vote on a bond
measure impacting its finances per Kidwell v. City of Union, 462 F.3d 620 (6`h Cir. 2006)
(city funds used to oppose citizen initiatives and promote a yes vote on tax levies is not a
compelled subsidy by citizens of a position they oppose, nor is a city newsletter a public
forum that must not differentiate (discriminate) between different viewpoints.)
There are other cases that define what is or is not governmental speech, but I would think
that whatever traffic advisories or route information Transit wanted to place on its
W
changeable message board at its Four Corners location would be governmental in nature
and thus not covered by the First Amendment. Below are some very brief descriptions
of cases which analyze what is or isn't governmental speech.
Use of a City Hall by a private group to oppose the installation of automatic red-light
ticketing mechanisms is not government speech despite its location and thus rules
regarding when and with what membership a group may use City Hall for a press
conference are subject to strict scrutiny per Miller v. Cincinnati, 622 F. 3d 524 (6`h Cir.
2010). Use of a county seal on a blog that discusses the actions of County government is
not government speech and rules prohibiting private use of the county seal are also
subject to strict scrutiny. See Rothamel v. Fluvanna Cty., Virgin, 810 F. Supp. 2d 771
(W.D. Va. 2011). A decision by NC Motor Vehicles to authorize a Pro -Life license plate
while not accepting a Pro -Choice license plate was subject to strict scrutiny because
specialty license plates are not purely governmental speech. ACLU of North Carolina v.
Conti, 912 F. Supp. 2d 363 (E.D N.C. 2012) and the Western District of Michigan also
concluded specialty plates were not purely governmental speech in Matwyuk v. Johnson,
22 F.Supp. 3d 812 (W.D. Mich, 2014).
Conclusion:
All of this to say that the proposed text, as revised by the undersigned, passes
constitutional muster and would be a lawful amendment to the County's Sign Code.
As if signed by David Alvarez, Chief Civil DPA.
END OF DOCUMENT