Confederate Monuments as Government Speech: Pleasant Grove City v Summum and Its Ambiguities
Following the mass protests caused by the murder of George Floyd, among other unarmed African Americans in May 2020, the removal of Confederate symbols has again captured national attention. Critics of Confederate monuments argue that such symbols are historical products of “the Lost Cause” narrative, which glorifies the Antebellum South and American slaveholding regime. They demand a takedown of these monuments—and rightfully so. Frustrated by the inaction of state legislatures across the South, protesters have taken the issue to federal court, arguing that the monuments are discriminatory in nature. Yet, opponents of Confederate monuments now face a major constitutional hurdle: the government speech doctrine, which holds that First Amendment restrictions, such as content discrimination, do not apply when the United States government is the speaker. Therefore, the question becomes: Do Confederate monuments occupying government land adhere to the government speech doctrine? While the Court has previously applied the government speech doctrine exclusively on literal speech, recent federal court cases such as Pleasant Grove City v. Summum (2009) and Walker v. Texas Division, Sons of Confederate Veterans, Inc. (2015) represent a major departure from previous interpretations and entrance into the realm of symbolic speech. The Supreme Court should adopt a conservative definition of what it considers government speech, as its expansion into symbolic speech has resulted in ambiguities and possible contradictions.
The removal of Confederate monuments, originally a political debate, has morphed into a legal issue over the past two decades following a series of “heritage laws” across the Southern states. With the rationale of preserving the Southern heritage, Southern state legislatures passed laws banning monument removal, preempting towns’ and municipalities’ actions, and stripping them of their power to remove the monuments unilaterally. The legislative impasse caused by these heritage laws encouraged protesters to turn towards the judiciary instead. In North Carolina, critics took advantage of legal loopholes in the pro-monument legislation to remove Confederate emblems. [1] They traced back the history of some monuments and argued that the monuments were never transferred to the municipal authority in the first place, thereby going around the statute. Others resorted to the federal courts. For example, Carlos Moore, an attorney in Mississippi, filed a lawsuit against the state and its governor in 2016, citing the design of the Mississippi state flag as “discriminatory and racist in nature.” However, the case was ultimately dismissed by the Supreme Court. [2]
Two recents cases that defined the stances of the Supreme Court on Confederate symbols are Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, Inc. In Pleasant Grove, departing from previous cases that limit the domain of government speech to direct, literal action, the Supreme Court argues that “permanent monuments displayed on public property,” including the ones provided by private parties, generally “represent government speech.” [3] Therefore, the monuments would be immune from First Amendment restraints under the Free Speech Clause (with the exception of restraints under the Establishment Clause), such as viewpoint neutrality, making any challenge to the Confederate monuments far more difficult.
However, the further the Court ventures in extending government speech and deviating from literal speech, the more contentious the ruling has become. While Summum enjoys a unanimous opinion from the Supreme Court, Walker generates more controversy regarding the extent to which symbolic speech can qualify as government speech. Sons of Confederate Veterans, a Neo-Confederate group, sued the state of Texas after the Texas Department of Motor Vehicles Board denied their request for a specialty license plate. The Court decided in a 5-4 ruling, very much along partisan lines, that states can choose what to express and what not to express on their license plates. Therefore, the Court sided with Texas, rejecting the claim that the Texas Motor Vehicles Board had discriminated against the Neo-Confederate group based on the content of the specialty license plates. [4] The Court’s decisions in these two cases cannot be viewed in political terms as pro-Confederate or anti-Confederate; rather, they reveal an increasing commitment to the government speech doctrine by siding with the state.
Invented originally in the case Rust v. Sullivan (1990), the government speech doctrine holds that when the United States government is the speaker, it can express its views and opinions without considering First Amendment restrictions, including the prohibition of content discrimination and compelled speech. The justification of the government’s speech has mostly focused on its necessity in a functional government, as Justice Alito concludes in Summum that “it is not easy to imagine how government could function if it lacked this freedom.” [5] Indeed, in a world where fewer restrictions have been imposed on private—especially corporate—speech, it would seem necessary for the government to have some power in exerting its voice. Traditionally, the Court applied the government speech doctrine to only protect the literal speech and actions of the government, but the two more recent Supreme Court cases show the Court’s willingness in extending this protection to symbolic speech of the government as well.
However, this gradual expansion of what constitutes government speech has created ambiguities around the contour of government speech: If objects of symbolic value like monuments and specialty license plates can be considered government speech, at which point does government speech end? A more flexible interpretation of government speech may come at the cost of private speech.
Unfortunately, the Court has failed to offer a clear and consistent standard to answer these questions. In Pleasant Grove City v. Summum, the Court set three major prongs that one needs to meet in order to qualify for government speech. First, the government has historically used this object to speak to the public. [6] Second, the public mind needs to “appreciate the identity of the speaker” and identify this object with the government as the speaker. [7] Third, the government must assume “effective control” over this object. [8] Yet, these three prongs are ambiguous and show an underlying bias for the government speech.
In regards to the first prong, the use of historicity to verify government speech is unclear and often subjective. While one may generally agree that monuments have historically been the mouthpiece of the United States government, it is undeniable that public parks have been historical public forums as well. The first prong offers little to no guidance in addressing conflicting historical claims between government speech and public forum doctrines. Historical interpretation is even a bigger problem for newer inventions like specialty license plates. For instance, the majority opinion in Walker saw license plates as a longstanding emblem of the state, tracing it back to as early as 1917 when Arizona adopted graphic designs on its license plates. But Justice Alito offered a very different historical narrative, arguing that only “at some point within the last 20 years or so, [did] the State (of Texas) begin to allow private entities to secure plates conveying their own messages.” [9] Thus, specialty license plates, in his opinion, could hardly be considered a traditional practice that constituted government speech considering their short history. Overall, the ability to justify government speech based on an arbitrary claim of history and tradition is concerning.
In addition, the second “literal speaker” prong leads to the question of who the actual person speaking is. The government speech doctrine is grounded on a rather abstract concept of the government as the speaker. In reality, the government must speak through its employees, so what is the distinction between government speech and private speech in this regard? Earlier in the case Pickering v. Board of Education (1968), the Court decided that a government employee may have a “dual” identity in speech, as they are allowed to both express private speech as a citizen and express government speech on behalf of the state. [10] This only adds to the confusion: How can the public discern which of the two identities they are speaking under?
Finally, “effective control” alone is an arbitrary qualifier for government speech. As the Fifth Circuit points out in Texas Division, Sons of Confederate Veterans, Inc. v. Vendergriff, despite the fact that the government controls the vehicle registration system, “the reality is private groups, not the government, compose the message to be placed on the specialty plates.” [11] In short, control over the physical license plate does not necessarily translate into control over the message. The notion that direct, effective government control can qualify government speech is dangerous, considering the amount of space under governmental jurisdiction: state-owned billboards, government complexes, parks, and so on. If all these spaces were no longer interpreted as public forums, private speech would be seriously threatened.
At a more abstract and philosophical level, the effective control prong leads to questions about voting rights as well. One must recall that when the concept of government speech was first established in Rust v. Sullivan, the Court held that “the Government can . . . selectively fund a program to encourage certain activities it believes to be in the public interest”. [12] The legitimacy of the government speech rests on the degree of popular support, as the Court has emphasized that “a government entity is ultimately ‘accountable to the electorate and the political process for its advocacy.’” [13] Thus, the Court empowers the state with the privileges afforded to government speech only under the condition that such speech is under the effective supervision of voters. If the electorate finds the government speech of the current administration troublesome, it may hold the officials responsible accountable in the next election. Yet, in many Southern states where districts are racially gerrymandered and racial bias taints many voting laws, this claim of accountability is dubious at best. Ultimately, the prerequisite to the government’s effective control of its speech is an effective control of the government by the electorate; if the Court seeks to strengthen the voice of the state, it must also take radical steps forward in addressing issues of voting rights, and a lack thereof presently further complicates the issue.
Overall, these ambiguities and contradictions reveal a lack of uniform standard of the government speech doctrine, with two major implications. First, such ambiguities create an inefficient system, for the Court has to decide what constitutes government speech on a case-by-case basis. More importantly, the lack of a uniform standard makes the Court’s push for government speech dangerous, as it possibly infringes upon the viewpoint discrimination principle and reinforces the power of the government at the cost of private speech.
Consequently, the recent Court rulings on government speech have created a major obstacle for critics of Confederate monuments. More importantly, Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, Inc. reflect a concerning trend of the Court in expanding government speech into the realm of symbolic speech without clearly delineating the line between government speech doctrine, a pattern about which opponents of Confederate monuments should raise questions.
Edited by Claire Choi
[1] Jordan Green, N.C. ban on removal of Confederate monuments is challenged as local councils continue to bring down statues, The Washington Post (November 30, 2019), online at https://www.washingtonpost.com/national/nc-ban-on-removal-of-confederate-monuments-is-challenged-as-local-councils-continue-to-bring-down-statues/2019/11/29/ab45fe0a-1050-11ea-9cd7-a1becbc82f5e_story.html (visited November 19, 2020).
[2] Tessa Carletta, Lawsuit takes aim at Mississippi state flag.” CNN. March 8, 2016. Accessed November 19, 2020, CNN (March 8, 2016), online at https://www.cnn.com/2016/03/08/us/mississippi-flag-lawsuit/index.html (visited November 19, 2020).
[3] Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
[4] Walker v. Texas Division, Sons of Confederate Veterans, Inc. 576 U. S. 200 (2015).
[5] Pleasant Grove City v. Summum, 555 U.S. 460 (2009).
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Walker v. Texas Division, Sons of Confederate Veterans, Inc. 576 U.S. 200 (2015).
[10] Pickering v. Board of Education, 391 U.S. 563 (1968).
[11] Texas Division, Sons of Confederate Veterans, Inc. v. Vendergriff, 759 F. 3d 399 (2014).
[12] Rust v. Sullivan, 500 U.S. 173 (1991).
[13] Pleasant Grove City v. Summum, 555 U.S. 460 (2009).