Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
We just installed a great new sign in the foyer in our middle school. It has a fancy electronic message scroll, and, as the principal, I have been using it to make announcements and to convey messages to inspire our school community.
It has been a tough year for the school budget, and the Town Council made deep cuts in the budget my school board proposed. However, parents have been putting pressure on the Town Council to restore money to the school budget, and I have been rooting them on. In fact, I included the following message on the electronic sign in the foyer that scrolls by between announcements: “$$$ Save Our Schools $$$.” Students and teachers love the message, and I have gotten a lot of positive feedback from parents. But the president of the local taxpayers association heard about the sign, and he just sent me an angry email.
Apparently, he fancies himself as some sort of First Amendment expert, and he has demanded that we display this message on the scroll as well: “Enough is enough: No More Money for the Schools!” He claims that the government (I guess that’s me) must be neutral on such matters, and that by posting my message, I opened the door and now he has the right to require equal time with his message. He even claimed that, if I disallow his message after displaying my message, I am engaged in “viewpoint discrimination,” whatever that is.
Do I really have to run his message too?
Speak No Evil
A little learning is a dangerous thing, and this local taxpayer president’s understanding of the First Amendment is incomplete. To be sure, the actions of public agencies, including schools, can result in the creation of a public forum subject to First Amendment requirements, and when that happens, the public agency cannot pick and choose what speech it will allow and what speech it will not allow. For example, a principal could let people put up signs with various messages on the front lawn of the school and thereby inadvertently create a public forum for First Amendment purposes. If that happens, it would be viewpoint discrimination in violation of the First Amendment to allow some signs and disallow others based on the viewpoint expressed. Similarly, public forum requirements are applicable to the Public Comment portion of school board meetings. In that forum, reasonable restrictions as to time, manner and place of speech are permitted, but all speakers must be given the same right to speak, irrespective of whether the board members find their comments welcome or unwelcome.
Your situation is very different. When you convey your message on the electronic scroll, your message will be considered “government speech” that does not open the door to opposing viewpoints. The courts have ruled that government officials have the right to express their views on different matters without thereby creating a public forum that is open to all. As Legal Mailbag understands the facts, that is just what you have done here.
Government officials must be careful when they want to convey a message as “government speech” without creating a public forum for others. The City of Boston recently learned this lesson the hard way. In Shurtleff v. City of Boston (U.S. 2022), a Christian group sued the City after the City refused its request to fly its flag over City Hall. Over the preceding twelve-year period, the City had permitted some fifty different flags to fly over City Hall on 284 occasions. The City defended its action by claiming that choosing what flags to fly was “government speech.” However, the United States Supreme Court rejected the City’s claim, noting in its decision that the City had simply permitted various groups to have their flags flown over City Hall without any real decision-making process. By then rejecting the request of the Christian group to fly its flag, the Court held, the City of Boston was not engaged in government speech, but rather had engaged in viewpoint discrimination against the Christian group in the public forum it had inadvertently created. If you are using the electronic sign or other means to convey your message, you must retain control of that means of communication and not permit others to use it, or you too may create a public forum in which all viewpoints may be expressed.
A final caution is in order here. There is a strict prohibition in Connecticut against authorizing the expenditure of public funds to advocate for a referendum result, and violation of that prohibition by government officials can result in personal liability for fines imposed by the State Election Enforcement Commission. Conn. Gen. Stat. § 9-369b. Here, there was no referendum pending, and you were free to convey your message that the Town Council should provide more funding for the schools. However, if the matter of funding were the subject of a pending referendum, you could not use the electronic sign to advocate for a “yes” vote on the referendum because you would be using government resources to convey that message.