Note: This post is co-authored with Daniel Hemel, an assistant professor of law at the University of Chicago Law School, and cross-posted at Whatever Source Derived. Follow him on Twitter: @DanielJHemel. This project may be of particular interest to the many Written Description readers who followed Matal v. Tam and its recent follow-up, In re Brunetti.
The distinction between private expression and government speech is fundamental to First Amendment jurisprudence. As the Supreme Court has held repeatedly, the government must be viewpoint-neutral when it regulates private expression, but not when it engages in speech of its own. For example, a public school cannot prohibit students from expressing anti-war views, but the government is free to propagate its own messages in support of a war effort without any need to simultaneously promote pacifism. Yet despite the doctrinal significance of the distinction between private expression and government speech, the line that separates these two categories is often quite fuzzy. A private billboard is clearly private expression, and the Lincoln Memorial is paradigmatic government speech, but what about a temporary privately donated exhibit in a state capitol? Privately produced visitors’ guides at a state highway rest area? A state university name and logo on a student group’s T-shirt? These are a few of the scenarios federal courts have wrestled with in recent cases.
To identify government speech in close cases, the Supreme Court has placed increasing emphasis on whether members of the public reasonably perceive the relevant expression to be private or government speech. As explained below, we think this turn toward public perception is a welcome development. But the Court has so far failed to develop a reliable method for determining how ordinary citizens distinguish between private and government messages.
The Court’s three most recent government speech decisions are illustrative. In the 2009 case Pleasant Grove City v. Summum, the Court said that there was “little chance” that observers would think that monuments in a public park were anything except government speech, even when those monuments were designed and donated by private organizations. Six years later, in Walker v. Texas Division, Sons of Confederate Veterans, the justices split 5–4 as to whether specialty license plate designs submitted by private organizations constituted government speech, with the majority asserting that members of the public perceive these designs to come from the government and the dissent insisting that members of the public hold the opposite view. And this past term, in Matal v. Tam, the Court confidently concluded that members of the public do not perceive federal trademark registration to be government speech. In none of these cases did the justices or the parties bring to bear any evidence as to how members of the public actually perceive the expression in question.
In an article forthcoming in the Supreme Court Review, we begin to fill that empirical void. We presented a variety of speech scenarios to a nationally representative sample of more than 1200 respondents and asked the respondents to assess whether the speech in question was the government’s. Some of the speculative claims made by the justices in recent government speech cases are borne out by our survey: for example, we find that members of the public do routinely interpret monuments on government land as conveying a message on the government’s behalf. In other respects, however, the justices’ speculation proves less accurate: for instance, while the Court in Tam says that it is “far-fetched” to suggest that “the federal registration of a trademark makes the mark government speech,” we find that nearly half of respondents hold this “far-fetched” view. (This does not imply that Tam was wrong—just that the question of whether members of the public perceive federal trademark registration to be government speech is much closer than the Court suggests.)
We further find that respondents are somewhat more likely to attribute messages to the government if they agree with those messages themselves. For example, individuals are more likely to attribute pro-choice messages to the government if they hold pro-choice views, and individuals are more likely to attribute atheistic messages to the government if they have positive attitudes toward atheism. In this respect, lay people may be little different from judges and justices, whose decisions in government speech cases sometimes seem to be influenced by ideology.
Given that public perceptions are influenced by ideology and other doctrinally irrelevant factors, one might question whether such perceptions should matter at all in government speech cases. We argue that they should. Government intervention in the marketplace of ideas is especially dangerous when it is nontransparent: in such instances, government officials potentially can launder messages through the mouths of private speakers and escape electoral accountability for that expression. Before allowing government officials to escape the viewpoint-neutrality requirement, courts should verify that members of the public actually perceive speech to emanate from the government. Only then can members of the public evaluate such speech intelligently and hold officials accountable.
Moreover, courts can do better than relying on armchair speculation to determine whether members of the public attribute expression to the government. And in other contexts, courts do. Most notably, courts in trademark infringement cases often consult consumer surveys to determine whether the defendant’s use is likely to cause confusion related to the plaintiff’s mark. The acceptance of survey evidence in trademark law reflects a recognition that empirical claims regarding consumer psychology are better supported through quantitative social science than through a series of hunches.
This is not to say that survey results should be dispositive in government speech cases, just as survey results are not dispositive in trademark cases. But as in the trademark infringement context, survey evidence can play an important role in validating and falsifying claims regarding public perceptions as to the source of arguably-government speech. Moreover, survey experiments such as the one we conducted here can be useful in disentangling the effects of medium from the effects of message because the controlled setting allows researchers to vary the message while holding medium constant. Thus, survey experiments can reduce the risk that government speech doctrine will systematically favor some messages over others.
To be sure, the use of survey evidence in government speech cases raises a number of implementation issues that require careful thought. We address concerns regarding cost, manipulability, and several other implementation challenges in the article. While we do not think that courts should rely entirely on survey evidence in government speech cases, we do conclude that survey evidence can serve to inform government speech jurisprudence. At the very least, an empirically informed government speech doctrine would, we think, protect First Amendment values more successfully than a doctrine dependent upon judicial guesswork.
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