Government Proclamations Are Government Speech, not Subject to Viewpoint Neutrality Rules

In Judge Timothy Corrigan’s ruling in Bloomberg v. BlockerDecided (clearly correct, I believe) on Thursday

Bloomberg is from St. Johns County in Florida. Blocker serves as the Chair of St. Johns County Board of County Commissioners. On March 8, 2021, Bloomberg emailed St. Johns County … about a proclamation celebrating “LGTBQ [sic] civil rights progress and the contributions of LGBTQ individuals to the St. Johns County community….” … Michael Ryan, the St. Johns County Assistant Director of Public Affairs in the Office of the County Administrator, called Bloomberg … to report that “they would not consider proclamations that were ‘controversial’ or ‘too far left or too far right,’ and therefore that the proclamation would not come before the Board for consideration.” …

[A]A government entity can speak for itself, say whatever it pleases and pick the views it desires to voice. … Bloomberg’s First Amendment claims hinge on whether St. Johns County’s proclamations are government speech or private speech. The type of speech here is one that is written and adopted by County Commission members. Past proclamations covered topics like 4-H week and domestic violence awareness month. They also included a space for elected officials to sign them at the bottom. Here is what the issue proclamation includes:

So, now, I am hereby authorized to act as [ ]St. John’s [sic]Florida County proclaims St. John’s [sic]County recognition of pride history, and the 52nd Anniversary of Stonewall. All citizens are invited to recognize the achievements and contributions made by the LGBTQIA+ community, to be ally to their friends and neighbors, to accept the diversity of our community, and to acknowledge the prejudice that exists.

Since the proclamation was written in “I”, with either the Commissioner or an elected body speaking first, with space to sign an elected official at bottom, the Commission supports its content. (Check out Doc. Doc. The St. Johns County Government website is a good example. Furthermore, by choosing whether to place certain proclamations on the agenda, the government maintains control over the message conveyed, even if the message was originally crafted by a private citizen….

Bloomberg attempts to distinguish “the decision as to whether the Board would or would not issue a proclamation” from “the content-based restriction to refuse to even put the LGBTQ Proclamation on the agenda….” Bloomberg claims the former is “an illegal restraint” which “would be unlawful for anyone to use.”[p]The LGBTQ Proclamation is not up for vote. A ballot initiative is placed on the ballot and is considered ‘government Speech’. However, the Board’s (or the Chair’s) decision whether to place an item on the agenda is not speech of an individual to which First Amendment safeguards apply….

This Term, I anticipate the Supreme Court to make its decision. Shurtleff V. City of Boston This will also be true, but one cannot know for certain until an opinion has been issued. I briefly discussed the case on a Teleforum of Federalist Society last month.