Black Lives Matter as Government SpeechSeptember 14, 2021
By Catherine Engberg
This article originally appeared in the September 2021 issue of Los Angeles Lawyer magazine.
In June 2020, communities across California and the world protested and mourned the nationally recognized acts of violence against Black lives. #Say Their Names[i] compiled a long list of Black individuals who lost their lives in 2020 including Breonna Taylor, Ahmaud Arbery, and George Floyd.[ii] A video of the Minneapolis police brutally killing George Floyd reached countless social media streams, sparking national protests across the country in solidarity with Black lives.
Many cities sought to show their support for Black lives through the display of public art. On June 5, 2020, the Mayor of Washington D.C., Muriel Bowser, commissioned a Black Lives Matter mural on 16th Street, and renamed the stretch “Black Lives Matter Plaza.” Cities across the nation followed suit. Ahead of the BLM march in Los Angeles, volunteers painted “All Black Lives Matter” down Hollywood Boulevard. The Los Angeles City Council subsequently passed a motion to make the mural permanent. And in New York City, artists painted BLM murals on the streets of Brooklyn and Staten Island after which Mayor Bill de Blasio tweeted out a plan to paint murals on the streets of every NYC borough.
These murals were not without controversy. Several of them were challenged on First Amendment grounds, specifically viewpoint discrimination. In the Bay Area, Redwood City removed a BLM mural that it had previously permitted after a resident requested permission to paint a mural featuring “Make America Great Again.” The resident claimed that the BLM mural’s location at the courthouse square constituted a public forum in which the public, regardless of belief, should be able to display messages.
Likewise, in New York City, the nonprofit Women For America First filed suit in federal court alleging that Mayor de Blasio’s denial of its request to paint a mural similar to one of the eight BLM murals throughout the City violated the First Amendment. The group claimed that in displaying a BLM mural on city streets, the City created a designated public forum triggered an obligation to permit similar expression of different viewpoints absent a compelling reason for denial.
Most challenges to BLM murals on public streets were unsuccessful.[iii] Cities relied on the government speech doctrine to insulate themselves from First Amendment challenges. These actions further established the emerging government speech doctrine as a central defense to claims of viewpoint discrimination by government agencies.
Government Speech Doctrine (Summum/Walker factors)
The government speech doctrine allows government to pick and choose what it says without implicating the First Amendment.[iv] Still relatively new, the doctrine has its roots in Rust v. Sullivan, a 1991 U.S. Supreme Court case involving the speech of private doctors who sought to counsel patients regarding abortion services. In that case, which did not employ the term “government speech,” the Court upheld the prohibition on such speech, finding that the government does not unconstitutionally engage in viewpoint discrimination when it selectively funds a program that it believes to be in the public interest.[v]
More recently, the Supreme Court has expressly relied on “government speech” to uphold government decisions to reject certain private messages. In Pleasant Grove City v. Summum, Pleasant Grove City declined to place a private group’s donated monument in a public park that contained multiple other donated monuments.[vi] The Court upheld the City’s decision, noting that the government had a right to “speak for itself.”[vii] The Court found that government has long used monuments to speak to the public, and the public reasonably interprets monuments in a public park as conveying government messages. Moreover, the City controlled the messages conveyed by exercising final approval authority over the monuments’ selection.
In Walker v. Texas Div. Sons of Confederate Veterans, the Supreme Court applied a similar analysis to uphold the State of Texas’ decision to reject a private group’s proposed license plate design featuring a Confederate battle flag.[viii] First, license plates have long communicated state messages to promote tourism, local industry, etc. Second, the public closely identifies license plate designs with the issuing state. Third, the State of Texas maintains control over the design of license plates (color, typeface) and has demonstrated a willingness to reject proposed designs.
Lower courts including the Ninth Circuit[ix] now apply the Summum/Walker factors to determine whether an agency’s expressive acts qualify as government speech:
- Traditional use of a medium to convey government messages;
- The public’s reasonable understanding that the message conveyed represents the government’s viewpoint; and
- The government’s direct control over the message conveyed.
It may not be necessary to make a showing under each factor. For example, courts have identified government speech in art competitions[x] and messages on school fences,[xi] despite little evidence showing traditional use of those mediums for government speech.
Other Relevant Factors
Government entities may invoke the government speech doctrine even in traditional public forums, and even when private groups provide assistance. Indeed, forum analysis does not apply at all when the government is speaking for itself. But agencies are still wise to exercise caution in public forums since line drawing between public and private speech may be more difficult when messages are placed in public forums.
The Summum court explained that a traditional public forum like a public park can accommodate only a limited number of permanent monuments.[xii] The park would be cluttered with monuments if the government were forced to allow all groups to install monuments, thus depriving the park of all qualities that made it a valuable public forum. In contrast, mass speeches, demonstrators, and leaflet distributors exemplify transient private speech that does not deprive parks of their forum character.
The district court in Women for America First likewise rejected the argument that public streets are traditional public forums where anyone may paint private messages. The court noted that the plaintiff did not seek to congregate and share messages with the public in New York City streets. Rather, it sought to paint a message on New York City streets, which are typically reserved for transportation-related guidance.[xiii] As such, the City retained its discretion to exercise final say as to what messages it chooses to share or permit on City streets.
Nor does the government lose its ability to invoke the government speech doctrine when it receives assistance from private groups for the purpose of delivering a government-controlled message. For this reason, the donated monuments in Summum did not qualify as private speech even though they were privately financed. Similarly, Walker held that Texas used government speech even when private parties proposed designs that the state chose to accept and display on its license plates.
Limitations on Government Speech
Government speech has its limits. The speech may not run afoul of the Establishment Clause. Nor does the doctrine justify the use of public resources for political advocacy. And of course, there is the power of the ballot box. If residents do not support a government message, they can vote the government speakers out of office.
Government speech is also not private speech with a government seal of approval. Courts have applied the Summum/Walker factors to conclude that trademarks and vanity license plate programs do not qualify as government speech. In Matal v.Tam, plaintiffs tried to register the band name “the Slants” with the Patent & Trademark Office (PTO), which the government rejected as offensive.[xiv] Plaintiffs who identified as Asian American claimed that the band was trying to reclaim the term and that the government’s rejection constituted a violation of the First Amendment. The Court rejected the PTO’s government speech defense, concluding that trademarks were private speech. It found that trademarks have not traditionally been used to convey a government message. Nor does the government exercise control over trademarks by editing marks submitted for registration.
Several courts applying the Summum/Walker factors have likewise concluded that vanity license plate programs do not qualify as government speech.[xv] In Mitchell v. Maryland Motor Vehicle Administration, the plaintiff applied for vanity plates bearing the characters “MIERDA,” which the Motor Vehicle Administration approved and then rescinded several years later upon learning the meaning of the word. Applying the Summum/Walker factors, the Maryland Supreme Court concluded that the message on the vanity plate was private speech. Private citizens, not the State, create and submit vanity plate messages, which are personal to the vehicle owner. Nor do members of the public believe that vanity plate messages come from the State. The court further found that even though the message was relayed on a government-issued license plate, the government medium does not automatically transform private speech into government speech.
Application to Murals and Public Art
Courts have generally found that public art—including BLM murals—qualifies as government speech under the Summum/Walker factors. The decision often turns on whether the government has maintained sufficient control over the public art, thus distinguishing it from private speech. For example, in Newton v. LePage, the First Circuit concluded that the governor of Maine exercised his rights of government speech when he chose to remove a mural, which depicted the history of the labor movement in Maine, located in a public waiting room of a state building.[xvi] The court noted that the state agency had exercised control and final approval authority of the mural.
Likewise, in Pulphus v. Ayers, the district court concluded that the art displayed at the U.S. Capitol as part of a congressional art competition constituted government speech.[xvii] The court held for the government even though the Summum/Walker traditional medium factor was “inconclusive” given the insufficient evidence of art competitions as a traditional medium for government messages. The other two factors weighed in favor of government speech. The public is more likely to associate art in government buildings with a government message. Furthermore, members of Congress played a significant role in the selection of the art, and the Architect of the Capitol set rules regarding the size, medium, and content.
On the other hand, in Hopper v. City of Pasco, which pre-dates Summum and Walker, the Ninth Circuit held that the City of Pasco violated an artist’s First Amendment rights when it refused to display certain “controversial” artwork in city hall.[xviii] The Ninth Circuit did not consider the government speech doctrine and instead determined that Pasco had created a designated public forum by retaining a local arts council to manage a gallery at its city hall with exhibitions by local artists. Later courts have distinguished Hopper on the grounds that the city entirely turned over the art selection process to a private organization, and did not exercise control over the art displayed.[xix]
It was the Summer of 2020
During the summer of 2020, the government speech doctrine insulated cities from First Amendment challenges to city-sponsored Black Lives Matter murals painted on city streets and other public property. Local governments used their right to speak for themselves when they installed BLM murals, and rejected other requests to install murals with different messages. Most cities including Los Angeles authorized their murals via formal action of the city council,[xx] underscoring that the mural is government speech. Mayor Bill de Blasio, on the other hand, tweeted out his BLM mural plan. New York City successfully invoked the government speech doctrine to defeat a First Amendment challenge to its murals, suggesting that government speech may also take place on social media.
Cities generally maintained direct control over the design and location of their BLM murals. While many cities sought assistance from local artists, and even paid for their materials, they did not simply sponsor expression of third parties. Government will likely continue to “say what it wishes”[xxi] via public art with the backing of the government speech doctrine.
[ii] Bill Hutchinson, From Eric Garner to George Floyd, 12 black lives lost in police encounters that stoked mass protests, ABC News (June 6, 2020), https://abcnews.go.com/US/eric-garner-george-floyd-12-black-lives-lost/story?id=70999321.
[iii] See, e.g,. Women for America First v. de Blasio, 2021 WL 634695 (S.D.N.Y. Feb. 18, 2021), appeal filed (No. 21-485); Penkoski v. Bowser, No. 20CV01519 (TNM), 2021 WL 2913152 (D.D.C. 2021) (granting summary judgment to the Mayor of D.C., holding that the BLM mural in dispute constitutes government speech under the Summum/Walker factors and that the “non-Black Christians” plaintiffs lack standing to bring their Establishment Clause claim).; Frederick Douglass Found., Inc. v. D.C., 2021 WL 1166841 (D.D.C. Mar. 26, 2021) (denying a preliminary injunction to enjoin enforcement of an ordinance used to deny a request to paint “Black Pre-Born Lives Matter” outside a Planned Parenthood clinic).
[iv] See Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015) (holding that “[w]hen government speaks, it is not barred by the Free Speech clause from determining the content of what it says”).
[v] Rust v. Sullivan, 500 U.S. 173, 193 (1991).
[vi] Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 465 (2009).
[vii] Summum, 555 U.S at 467.
[viii] Walker v. Texas Div. Sons of Confederate Veterans, Inc., 555 U.S. at 206.
[ix] See Eagle Point Education Ass’n/SOBC/OEA v. Jackson County School District No. 9, 880 F.3d. 1097, 1102–04 (9th. Cir. 2018) (applying Summum/Walker factors to conclude that school district polices were not government speech).
[x] Pulphus v. Ayers, 249 F.Supp.3d 238 (D.D.C. 2017).
[xi] Mech v. School Bd. of Palm Beach County, 806 F.3d 1070 (11th Cir. 2015).
[xii] Summum, 555 U.S. at 478 (emphasis added).
[xiii] Women for America First v. de Blasio, 2021 WL 634695 *6 (citing Local Law § 10-117(a), which prohibits writing, painting and drawing on New York City streets, absent express permission).
[xiv] Matal v. Tam, 137 S.Ct. 1744, 1751 (2017).
[xv] Mitchell v. Maryland Motor Vehicle Admin., 450 Md. 282, 289–90 (Md. 2016); Matwyuk v. Johnson, 22 F. Supp. 3d 812 (W.D. Mich. 2014); but see Commissioner of Indiana Bureau of Motor Vehicles v. Vawter, 45 N.E.3d 1200 (Ind. 2015) (applying Walker factors to conclude that personalized license plates were government speech).
[xvi] Newton v. LePage, 700 F.3d 595 (1st Cir. 2021).
[xvii] Pulphus v. Ayers, 249 F. Supp. 3d. 238 (D.D.C. 2017), appeal dismissed for lack of standing 909 F.3d 1148 (D.C. Cir. 2018).
[xviii] Hopper v. City of Pasco, 241 F.3d 1067 (9th Cir. 2001).
[xix] Pulphus, 249 F. Supp. 3d. at 252.
[xx] Motion to design and implement signage commemorating the historic “All Black Lives Matter” march on June 14, 2020, Los Angeles City Council (Aug. 19, 2020); Resolution Authorizing Black Lives Matter Mural, Half Moon Bay City Council (Aug. 18, 2020); Resolution of the City Council of the City of El Cerrito in Support of Black Lives Matter, El Cerrito City Council (July 2020); Resolution of the Petaluma City Council Approving the Black Lives Matter Street Mural Project Sponsored by the Public Art Committee and funded by the Public Art Fund, No.2020-110 (July 6, 2020); Resolution of the Council of the City of Palo Alto Expressing Support of the Black Lives Matter Movement, City of Palo Alto (June 8, 2020); Resolution Declaring that Black Lives Matter, and Reaffirming the City of San Mateo’s Commitment to Racial Equity, City of San Mateo (July 20, 2020).
[xxi] Summum, 555 U.S at 467.