License Plates, Flagpoles, and Editorial Discretion

The oral arguments are available for reading in Shurtleff v. BostonIt raised an issue that I had been concerned about for some time. The government often picks and chooses from private speakers when deciding which flags should be displayed on city flagpoles, which images for state license plates, and what monuments should go in public parks. We don’t know what doctrinal categories to use when government exercises this level of editorial discretion.

First Amendment doctrine recognises private speech as an independent form of speech. Newspaper publishers don’t have to agree with each letter to the editor they print—it’s not They speech—but their choice of letters worth printing IsTheir speech is theirs, the government cannot dictate a right to reply. The authors speak through books, and not the owners of bookstores. However, the choice of books that are worth selling is also a type of speech. So on.

This curation of government work seems to be falling through the doctrinal cracks. The well-known “government speech” category is when the government agrees with its statements even if they are suggested first by third parties. And we have various kinds of “public forum” categories (traditional, designated, limited, non-, …) when the government is hosting the speech of others, as to which it usually has to be viewpoint-neutral. There doesn’t appear to be any good doctrine for when government acts as publisher, but not as writer or collector, and decides what speech is worth spreading.

We rarely have to make the decision for private speakers whether this is the speaker’s or editor’s speech. This is not the case for government speakers. The doctrinal classification that it falls under will be determined by who’s speech it was.

Judges can recognize editorial discretion even though they are not able to see it. They sometimes refer to it as a form government speech. Summum, the park-monument case—which came close to carving out a general exception to public-forum doctrine, but ultimately retreated to describing private monuments as “assistance” in “delivering a government-controlled message.” Or sometimes judges see curation as intrusions in a public forum, as in the case of bus advertisements—which WalkerAccording to the license plate case, they were traditionally available for private speech and had no evidence that the speech was being conveyed or owned. (Other than being on a government bus…)

Sometimes judges attempt to fit editorial discretion in existing categories with little success. You can read the full article here Forbes,The Court in the public-television case regarding political-debate recognized that public institutions have the right to pick speakers for lecture series. But it still required viewpoint-neutrality of a public TV channel planning a candidates’ debate—in part because of the broadcaster’s “implicit representation … that the views expressed were those of the candidates, not its own.” Of course that representation is also made for visiting lecturers, guests on a talk show, and so on—all of whom the Court thought the government could select on viewpoint-related grounds. The Court would have had to worry about an attorney. explicitDisclaimer: “These are the only candidates that we believe are worthy of hearing from.” It is not possible for a billboard advertising government that says “Vote to Jones”, which would be in violation of the First Amendment. This is where the term “government speech”, tends to obscure the differences that actually matter. The courts pay too much attention not to the fact that the views visible belong to the government but enough to determine if they can be subject to government curation.

This type of editing is unacceptable when applied to speech in general: having private works edited by government officials is not censorship. One can also dispute the validity of any particular area, such as trademark protection.[[]([from private competitors]) government curation would be expanded into fields that were previously reserved for private speech. In lots of ways, this is what judges and lawyers are already arguing about in the government-speech/public-forum cases: my claim is only that the case law would make more sense if it spoke directly in these terms. We can still debate whether license plates are more like the postcards sold at a government-run highway rest stop or more like privately purchased bumper stickers—”little mobile billboards on which motorists can display their own messages,” per the dissent in WalkerThis is done without the expectation of any official review. We can debate whether flying city flags on city flagpoles is like flying them in your own yard or like endorsement of private statements (a form constituent service like the Mayor participating in private parades) so that each city has the ability to choose their viewpoint. We might do better if we use the language of curation, editorial discretion and not in hard-edged categories such as government speech or public forums.

As I do not have an exhaustive first-principles theory for the First Amendment, I am not sure what the case should look like. But the existing doctrine seems to have an editorial-discretion-shaped hole in it, and it probably shouldn’t.