Say the government is handing out money, or access to government property or some other benefit.
Can it exclude certain kinds of speech or certain kinds of speakers? It's complicated.
But here are the five rules of the First Amendment and government property.
Rule one. A few forms of government property are treated as so-called traditional public forums.
There the government generally can't exclude speech based on its content.
The classic examples are sidewalks and parks, as well as streets used for parades.
And less speech falls within one of the narrow First Amendment exceptions such as your threats of crime,
or face-to-face insults that tend to provoke a fight, the government can't restrict it.
Such places are technically government property but that gives the government no extra authority
to control such speech. The postal system is analogous.
At least since the 1940s the Supreme Court has held that the government can't exclude
certain kinds of content from the mail. To quote Justice Holmes in an early case,
"the United States may give up the post office when it sees fit, but while it carries it on,
the use of the mails is almost as much a part of free speech as the right to use our tongues.
Rule two. Sometimes the government deliberately opens up property or funds
in order to promote a wide diversity of private speech using objective criteria.
Many public schools for instance let student groups use classrooms that weren't otherwise being used.
Public libraries often offer rooms for meetings of community groups.
Public universities might offer free email accounts or web hosting to all students
and sometimes public universities offer money to student groups to publish newspapers
or invite speakers. These are so-called limited public forums and the government can limit them
to particular speakers, for instance just students, or to particular kinds of speech. For instance,
just speech related to the university curriculum. It can also have reasonable viewpoint-neutral exclusions.
For instance saying that certain benefits or property
can't be used for promoting or opposing candidates into public office.
But it can't impose viewpoint-based criteria. It can't for instance let all groups use a meeting room in a library
but exclude racist groups.
Rule three. A lot of government property is open to the public but not for speech.
Airports for instance are set up to promote transportation, not speaking.
But people there will wear t-shirts with messages on them,
talk to friends, maybe even approach strangers with belief lights in these so-called non-public forums.
The rule is much like in limited public forums speech restrictions are allowed but must be reasonable,
and viewpoint-neutral.
Rule four. Some government property is set up for the government itself to speak.
And there the government can pick and choose what viewpoints it conveys or endorses.
The walls of most public buildings are an example the government can choose what art to put up there,
and it might refuse to display art that conveys ideas that it dislikes.
Likewise, when the government spends money to promote its own messages,
it doesn't have to promote rival messages. It can have a National Endowment for democracy
without having to fund a National Endowment for communism.
It can put out ads supporting racial equality without paying for ads supporting racism.
Sometimes there are close cases. For instance when Texas authorized many kinds of license plate designs,
but excluded Confederate flag designs the court split 5 to 4. The majority thought license plate designs
were government speech and the government could pick and choose which ones to allow.
Even when the government accepted dozens of designs requested by private groups,
the dissent thought they were limited in public forum in which viewpoint discrimination was forbidden
because the government was supporting so many different and often contradictory forms of speech.
But while there were close cases, many are pretty clear. The government often clearly promotes views
it shows itself and sometimes clearly promotes a wide range of private views.
Rule five. Similar principles likely applied to government benefit programs and not just a provision of real estate
or money. Charitable tax exemptions for instance are likely a form of limited public forum.
The government can discriminate based on content. You can't use tax-deductible donations to support
or oppose candidates for office, but not based on a viewpoint.
Likewise when the Supreme Court held that the government can't deny full trademark protection
to trademarks that are seen as disparaging, scandalous,
immoral, or racist. Such restrictions the court said were impermissibly viewpoint based.
Of course private property owners aren't bound by the First Amendment whether they're distributing money
or access to real estate. And as we see the government as property owner isn't bound by the First Amendment
quite the same as it is when deciding whether to jail people or find them for their speech.
But except when it comes to the government's own speech viewpoint discrimination is generally forbidden
even on government property. So to sum up, the government generally can't exclude speech
based on its content in traditional public forums. The government can deliberately open up
limited public forums that are restricted to particular speakers or kinds of speech but it can't impose a
viewpoint-based criteria. In non-public forums speech restrictions are allowed but must be reasonable
and viewpoint-neutral. For government property set up for the government itself to speak,
the government can pick and choose what viewpoints it conveys or endorses, similar principles likely apply
to government benefit programs and not just the use of physical property.
This is not legal advice if this were legal advice it would be followed by a bill. Please use responsibly.
Written by Eugene Volokh who is an actual real-life First Amendment law professor at UCLA.
I'm Eugene Volokh and I approve this message.
