First Amendment, government speech, expressive integrity
Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers’ views are not mistakenly attributed to the government. Consider, for example, Virginia’s efforts to ban the Sons of Confederate Veterans’ display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of “hate” or “heritage,” Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier “VIRGINIA.” The Fourth Circuit was unpersuaded, holding that the logo’s exclusion violated the First Amendment. Such clashes between public and private entities’ expressive claims raise a series of interesting questions. Do governmental entities have a legitimate interest in ensuring that they are not mistakenly understood as endorsing or delivering what are actually the views of private speakers? If so, what actions does the First Amendment permit them to take to protect that interest? As disputes involving these questions rise in number, courts increasingly search for guidance. Cases that appear to involve elements of both government and private speech are especially challenging given current constitutional doctrine that appears to demand a choice between one or the other. Too often, courts fail or refuse to acknowledge that government itself is speaking in a particular context, and thus has an interest in protecting the integrity of its own expression. Even those courts that acknowledge the legitimacy of government’s interest in protecting its own expressive integrity too often muddy the waters by claiming to apply some sort of forum doctrine. The better framework is to understand these not as forum cases, but situations in which government itself is speaking – either on its own or jointly with a private speaker – and is thus free to protect the integrity of its own expression by protecting what is truly its own speech from being appropriated by others. For these reasons, we should think more carefully about the circumstances under which private speech may be mistakenly understood as that of the government. I suggest that government can persuade us that its efforts are not a pretext for squelching unpopular or inconvenient private speech by demonstrating that it is itself speaking and that it reasonably fears that, absent preventive action, its speech will be mistakenly perceived to endorse others’ expression. Particularly helpful factors in assessing competing private and governmental claims to the same expression include the identity of the literal speaker, the reasons for governmental and private participation in the program at issue, the availability of alternative avenues for ventilating the private expression, and the effectiveness of government disclaimers or rebuttals.