School naming rights and the first amendment's perfect storm

Georgetown Law Journal

Volumn 96, Issue 1, 2007, Pages 1-57

  Blocher, Joseph ^a  

^a United States Court of Appeals for the Eleventh Circuit ^*  (United States)

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[No Author keywords available]

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EID: 37149020344     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (405)

1. Tamar Lewin, In Public Schools, The Name Game as a Donor Lure, N.Y. TIMES, Jan. 26, 2006, at Al;
2. Robert Strauss, Education; P.S. (Your Name Here), N.Y. TIMES, Dec. 16, 2001, §14 (New Jersey Weekly), at 6.
3. Following Melville Nimmer's lead, many First Amendment scholars have employed "definitional balancing" or "categorical balancing" as a method for "defining which forms of speech are to be regarded as 'speech' within the meaning of the first amendment." Melville B. Nimmer, The Right To Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy, 56 CAL. L. REV. 935, 942 & n.24 (1968);
4. see Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. CM. L. REV. 46, 47 & n.3 (1987);
5. Eugene Volokh, Crime-Facilitating Speech, 57 STAN. L. REV. 1095, 1138 n.175 (2005);
6. see also John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1500-01 & n.74 (1975) (describing a "categorization" approach).
7. See generally Norman T. Deutsch, Professor Nimmer Meets Professor Schauer (and Others): An Analysis of "Definitional Balancing" as a Methodology for Determining the "Visible Boundaries of the First Amendment," 39 AKRON L. REV. 483 (2006) (examining "definitional balancing" as a method for separating protected and unprotected speech).
8. Perhaps the most thorough and nuanced work exploring the First Amendment's boundaries - both external and internal - is that of Frederick Schauer. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1765 (2004) [hereinafter Schauer, The Boundaries of the First Amendment] ("The history of the First Amendment is the history of its boundaries.");
9. Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265 (1981) (exploring the use of categories and subcategories in First Amendment methodology). As part of his efforts to clarify the First Amendment's boundaries, Schauer has described a theory of the "institutional First Amendment," which would "recognize the difference between the institutional press and the lone pamphleteer, between the Internet and an adult theater, between libraries and medical clinics, and between the National Endowment for the Arts and the National Institutes of Health."
10. Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV. 1256, 1260 (2005) [hereinafter Schauer, Towards an Institutional First Amendment];
11. see also Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84 (1999). Although I do not address the "institutional First Amendment" in any detail here, the basic thrust of this Article - that school naming rights illuminate problematic interactions among three areas of First Amendment law - can easily be reconciled with an institutional approach. Indeed, the discussion here suggests that these First Amendment border disputes arise because of a new confluence of institutional actors: schools and naming rights sponsors. For a more recent effort to address the strengths and potential weaknesses of institutional tailoring
12. see generally Scott A. Moss, Prisoners and Students and Workers - Oh, My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine, 54 UCLA L. REV. (forthcoming 2007).
13. U.S. CONST, amend. I.
14. Many scholars have called for a more evenhanded application of the Amendment in particular categories. See, e.g., Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1384 (2001) (arguing that "there is no basis or need for any special form of privilege or immunity for government speech");
15. Alex Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 VA. L. REV. 627 (1990);
16. William Van Alstyne, To What Extent Does the Power of Government To Determine the Boundaries and Conditions of Lawful Commerce Permit Government To Declare Who May Advertise and Who May Not?, 51 EMORY L.J. 1513, 1554 (2002) [hereinafter Van Alstyne, Power of Government].
17. Schauer, The Boundaries of the First Amendment, supra note 3, at 1769-74 (distinguishing between "coverage" and "protection" under the First Amendment).
18. Schauer, Towards an Institutional First Amendment, supra note 3, at 1256 ('Traditionally, the First Amendment has been subdivided on the basis of the content of the communication.").
19. ALEX MOLNAR, EDUC. POL'Y STUDIES LAB., SPONSORED SCHOOLS AND COMMERCIALIZED CLASSROOMS: SCHOOLHOUSE COMMERCIALIZING TRENDS IN THE 1990's, at 6-7 (1998), available at http://epsl.asu.edu/ceru/Annual%20reports/cace-98-01.pdf [hereinafter MOLNAR, SPONSORED SCHOOLS];
20. id. at 26 ("The evidence presented in this report suggests that the 1990's have become the decade of sponsored schools and commercialized classrooms.");
21. see also Alex Molnar, Sixth Annual Report on Commercialism in Schools: Cashing in on the Classroom, EDUC. LEADERSHIP, Dec. 2003-Jan. 2004, at 79, 79 [hereinafter Molnar, Cashing in on the Classroom] (reporting "marked increase" in six categories of schoolhouse commercialism from 2001-2002 to 2002-2003).
22. Molnar, Cashing in on the Classroom, supra note 8, at 79.
23. George A. Clowes, Just the Facts: Teacher Salaries and Education Spending, SCHOOL REFORM NEWS, May 1, 2004, available at http://www.heartland.org/Article.cfm?artId= 14818.
24. See, e.g., Izzy Gould, What's in a Name? Extra Cash, Perhaps, TAMPA TRIB., Dec. 21, 2004 (Sports), at 1 (noting that Pasco County, Florida's athletic budget for its nine high schools in 2003-2004 was approximately $1,218,627, a budget that was nearly equal to the annual value of its ten year, $13 million deal with Pepsi to only sell Pepsi products in Pasco County schools).
25. See, e.g., Ruth Sheehan, Too Late to Cry 'Sellout', NEWS AND OBSERVER (Raleigh, N.C.), Jan. 20, 2003, at B1.
26. See Lini S. Kadaba, Museums Embrace Corporate Sponsorship, PHILA. INQ., Aug. 9, 2001 (Domestic News).
27. See THE HENRY J. KAISER FAMILY FOUND., THE ROLE OF MEDIA IN CHILDHOOD OBESITY 4-9 (2004), available at http://www.kff.org/entmedia/upload/The-Role-of-Media-in-Childhood-Obesity.pdf.
28. See generally Edward L. Palmer & Lisa Sofio, Food and Beverage Marketing to Children in School, 39 LOY. L.A. L. REV. 33 (2006);
29. Michele Simon, Food Marketing to Children and the Law: An Introduction, 39 LOY. L.A. L. REV. 1 (2006);
30. Lisa M. Spenny, Comment, Commercialism in New York Public Schools: State Versus Local Control, 5 ALB. L.J. SCI. & TECH. 339 (1996).
31. See, e.g., Jingle Davis, No Coke, Pepsi: Rebel Without a Pause, ATLANTA J-CONST., Mar. 26, 1998, at 1A;
32. Guy Friddell, Student's Act of Cola Defiance Was Refreshing, VIRGINIAN-PILOT (Norfolk, Va.), Apr. 4, 1998, at B1;
33. Carl Hiassen, Editorial, Be True to Your School... and Its Cola, CHARLESTON GAZETTE (Charleston, W.V.), Mar. 31, 1998, at 4A.
34. See, e.g., Editorial, Pepsi T-Shirt Wasn't a Huge Crime, OMAHA WORLD HERALD, Mar. 29, 1998, at 20A;
35. Barry Saunders, OK, Class-Line Up, Dress Right, and Salute the Image, NEWS AND OBSERVER (Raleigh, N.C.), Mar. 28, 1998, at A19.
36. Even the National School Boards Association now invites corporate sponsors to "carve out a special place in the minds of school board members and administrators [through] special sponsorship opportunities." Nat'l Sch. Bds. Ass'n, Corporate Sponsorship Opportunities with NSBA Conferences & Meetings, http://www.nsba.org/site/page.asp?TRACKJD=&CID=190&DID=5557 (last visited June 3, 2007).
37. As one school fundraiser commented after being told that his high school was only the second in the country to negotiate a naming rights deal, "We thought everyone did this. I thought this was a fairly routine thing. We're pioneers, I guess." Chris Anderson, Naming Rights Pay for Lights, SARASOTA HERALD-TRIB., (Sarasota, Ha.), Feb. 18, 2004, at C1.
38. Sue Kiesewetter, The Name Game; Sale of Naming Rights for Sports Facilities in Schools; Includes Tips on Selling Naming Rights, SCH. PLANNING & MGMT., Aug. 1998, at 29;
39. Jason Spencer, What's in a Name? Lots of Cash, HISD Hopes; District Ponders a Proposal to Sell Naming Rights for Football Stadiums, HOUSTON CHRON., Jan. 21, 2005, at A-01.
40. See Dan Voelpel, Pay the Price and It's (Your Name Here) Stadium; The Modern Advertising Trend of Selling Rights to Sports Facilities Has Trickled Down to High Schools, for Better or Worse, NEWS TRIB., (Tacoma, Wash.), May 22, 2005, at D01.
41. See Kadaba, supra note 13.
42. See, e.g., Cindy Brovsky, Stadium Naming Rights Are Usually a Package Deal, DENVER POST, Oct. 29, 2000, at A04. For an interesting reversal of the normal practice described in this Article
43. see Goldie Blumenstyk, U. of Phoenix Buys Naming Rights to a Pro-Football Stadium, CHRON. OF HIGHER EDUC, Oct. 6, 2006, at 30.
44. Many of these disputes center on contractual issues not addressed in any detail here. See also John K. Eason, Private Motive and Perpetual Conditions in Charitable Naming Gifts: When Good Names Go Bad, 38 U.C. DAVIS L. REV. 375, 402-03 (2005) (describing common conflicts in charitable naming arrangements, and proposing state law solutions).
45. For more information, see generally Debra E. Blum, Donors Increasingly Use Legal Contracts to Stipulate Demands on Charities, CHRON. PHILAN-THROPY, Mar. 21, 2002, at 9;
46. Robert H. Thornburg, Note, Stadium Naming Rights: An Assessment of the Contract and Trademark Issues Inherent to Both Professional and Collegiate Stadiums, 2 VA. SPORTS & ENT. L.J. 328 (2003).
47. See, e.g., Cindy Brovsky, Stadium Name May Be Ignored, DENVER POST, Jan. 26, 2001 (noting public oppostition to re-naming Mile High Stadium as Invesco Field at Mile High);
48. Vincent P. Bzdek, The Ad Subtractors, Making a Difference, WASH. POST, July 29, 2003, at C09 (describing activities of Commercial Alert, a group that seeks "[t]o stop advertisers from commandeering every last nook and cranny of American culture").
49. Jason Bradley Kay, What Is a Good Name Worth? Local Government Sponsorships and the First Amendment, POPULAR GOV'T, Fall 2003, at 30, 30, 35.
50. Name Games Question, DALLAS MORNING NEWS, July 9, 2005, at 8B (reporting mixed public response to a plan to sell naming rights to city library).
51. Kay, supra note 26, at 30.
52. Molnar's 1998 report cited "Appropriation of Space" as a small and shrinking category of commercial activity in schools. MOLNAR, SPONSORED SCHOOLS, supra note 8, at 28.
53. See Lewin, supra note 1;
54. Strauss, supra note 1. Brooklawn's deal is generally recognized as the first of its kind.
55. John Kellmayer, Is It Wrong To Sell Naming Rights? No; It Brings Money to Schools, AM. TEACHER, Mar. 2002, http://www.aft.org/ pubs-reports/american_teacher/mar02/speakout.html (last visited Apr. 2, 2007);
56. Bill Pennington, Reading, Writing, and Corporate Sponsorships, N.Y. TIMES, Oct. 18, 2004, (Sports), at 1.
57. ALEX MOLNAR, EDUC. POL'Y STUDIES LAB., WHAT'S IN A NAME? THE CORPORATE BRANDING OF AMERICA'S SCHOOLS: THE FIFTH ANNUAL REPORT ON TRENDS IN SCHOOLHOUSE COMMERCIALISM 7 (2002) [hereinafter MOLNAR, WHAT'S IN A NAME?] (reporting dramatic increase in news citations of naming rights sales following Brooklawn deal).
58. Lewin, supra note 1.
59. See Geoff Mulvihill, N.J. School Sells Naming Rights to Raise Money, MKTG. NEWS, May 15, 2004, at 7.
60. Roundtable: Voting Rights, Treason, School Names (NPR radio broadcast June 27, 2006) (reporting sales in a Wisconsin school district).
61. See Anita Powell, For Sale: Round Rock ISD Looks To Sell Stadium Name, AUSTIN AM.-STATESMAN (Austin, Tex.), Oct. 30, 2003, at Al;
62. Spencer, supra note 20.
63. Universities often have elaborate and specific naming rights policies which address the criteria for naming school facilities, including the amounts which must be donated and the methods by which donors will be selected. See, e.g, N.C. STATE UNTV. BD. OF TRS., POLICDES, REGULATIONS, AND RULES, Policy 03.00.2 (1994) (amended 2005), available at http://www.ncsu.edu/policies/ alumni_dev/pdf/POL03.00.2.doc;
64. UNTV. OF N.M. POL'Y OFFICE, UNTV. OF N.M. BD. OF REGENTS POLICY MANUAL §2.11 (1995) (amended 2001 & 2005), available at http://www.unm.edu/brpm/ r211.htm.
65. See Lewin, supra note 1;
66. see also Lisa Marie Pane, School Raises Funds by Selling Name Rights, DESERET NEWS (Salt Lake City, Utah), Aug. 10, 2001, at A10 (listing prices for school facilities in Newport, Rhode Island);
67. Leif Strickland, Extra Credit for School Donors; For the Right Amount, HP Will Make You a Big Name on Campus, DALLAS MORNING NEWS, Feb. 27, 2002, at IA (listing asking prices for school facilities in Texas' Highland Park school district).
68. Elizabeth Chang, A School by Any Other Name Would Be ... Richer, WASH. POST, Dec. 12, 1999, at B05;
69. Editorial, So What's Next, Nike Elementary?, ADVOCATE (Baton Rouge, La.), Mar. 29, 1998, at 16B.
70. Jeff Donaldson, Some Schools Mull Sale of Naming Rights To Raise Funds, DESERT SUN (Palm Springs, Cal.), Feb. 4, 2003, at 1B.
71. Judy Keen, Wis, Schools Find Corporate Sponsors; Cafeterias, Gyms, More Renamed To Nab Easy Cash, USA TODAY, July 28, 2006, at 3A.
72. MOLNAR, SPONSORED SCHOOLS, supra note 8, at 10 ("The justification for the sponsorship agreements most often used by educators is the need for money.");
73. see also Gould, supra note 11.
74. See infra text accompanying note 147 for discussion of whether a school's name can be considered part of its "curriculum."
75. Lewin, supra note 1;
76. see also Joseph Di Bona et al., Commercialism in North Carolina High Schools: A Survey of Principals' Perceptions, 78 PEABODY J. EDUC. 41, 56 (2003) (reporting high school principals' positive impressions of corporate sponsored events).
77. See UNIV. OF OR. EDUC. RES. INFO. CTR., Business Partnerships with Schools, POL'Y REP., Fall 2001, at 1 (quoting a Verizon manager as saying that the company's "commitment to education is driven by its responsibility as a good corporate citizen and by the understanding that today's students will be tomorrow's employees, consumers, regulators, and neighbors"). For an interesting attempt to classify corporate involvement with school reform according to the motivations of the corporations involved
78. see Roslyn Arlin Mickelson, International Business Machinations: A Case Study of Corporate Involvement in Local Education Reform, 100 TCHRS. C. REC. 476, 491-96 (1999), available at http://www.uncc.edu/rmicklsn/images/corporate.pdf.
79. Research for this Article revealed only two examples of public high school facilities named after individual, non-corporate financial donors. Alan Schmadtke, Stadium Naming Is Big Business: Corporate Money Is Dictating the Names of College and Even High School Facilities, ORLANDO SENTINEL, May 25, 2006, at D1.
80. Christine MacDonald, Got Cash? Buy School Name; To Ease Tight Budgets, Plymouth-Canton, Others Ponder Sale of Naming Rights to Buildings, Events, DETROIT NEWS, June 27, 2005, at 1A (quoting president of a company that had donated $25,000 for a playground).
81. See Eric A. Posner, Altruism, Status, and Trust in the Law of Gifts and Gratuitous Promises, 1997 WIS. L. REV 567, 572-85 (arguing that altruism "is an insufficient explanation for gift-giving behavior" generally, and exploring other rationales such as trust and status enhancement).
82. In the seminal corporate philanthropy case, the Delaware Court of Chancery "conclude[d] that the test to be applied in passing on the validity of a gift such as the one here in issue is that of reasonableness, a test in which the provisions of the Internal Revenue Code pertaining to charitable gifts by corporations furnish a helpful guide." Theodora Holding Corp. v. Henderson, 257 A.2d 398, 405 (Del. Ch. 1969). Even so, nearly all states have passed statutes allowing corporations to make charitable donations even without demonstrating their value to the company. See Jill E. Fisch, Teaching Corporate Governance Through Shareholder Litigation, 34 GA. L. REV. 745, 765 (2000).
83. Faith Stevelman Kahn, Pandora's Box: Managerial Discretion and the Problem of Corporate Philanthropy, 44 UCLAL. REV. 579, 662 & n.362 (1997).
84. Brief for Arthur W Page Society et al. as Amici Curiae Supporting Petitioners at 19, Nike v. Kasky, 539 U.S. 654 (2003) (No. 02-575), 2003 WL 835090.
85. See MOLNAR, WHAT'S IN A NAME?, supra note 31, at 2.
86. Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 GEO. L.J. 439, 441 (2001) ("All thoughtful people believe that corporate enterprise should be organized and operated to serve the interests of society as a whole, and that the interests of shareholders deserve no greater weight in this social calculus than do the interests of any other members of society. The point is simply that now, as a consequence of both logic and experience, there is convergence on a consensus that the best means to this end (that is, the pursuit of aggregate social welfare) is to make corporate managers strongly accountable to shareholder interests and, at least in direct terms, only to those interests.").
87. Voelpel, supra note 21.
88. Id.;
89. see also Keen, supra note 40;
90. MOLNAR, WHAT'S IN A NAME?, supra note 31, at 16.
91. See Lewin, supra note 1;
92. see also Tamara R. Piety, Free Advertising: The Case for Public Relations as Commercial Speech, 10 LEWIS & CLARK L. REV. 367, 374 (2006) ("When a newspaper carries a company's 'message' it is better than any advertising because it is both free and more credible to the public than it would be coming directly from the company.").
93. See Kay, supra note 26, at 30 (internal citation omitted).
94. See generally Eason, supra note 24.
95. See, e.g., Strauss, supra note 1.
96. See Eason, supra note 24, at 387-88, 394-402 (discussing specific examples of "charitably inclined malfeasants whose names now adorn various charitable institutions or facilities across the nation");
97. John Kass, If This Group Is Involved, It's a Really Bad Sign, CHI. TRIB., Apr. 14, 2005, at C2 (reporting National Man-Boy Love Association's adoption of a highway in Illinois);
98. Editorial, County Should Have Rejected Nazis, OREGONIAN (Portland, Or.), Feb. 4, 2005, at BIO (reporting that county, fearing lawsuits, allowed American Nazi Party to adopt a stretch of highway).
99. See Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1809, 1094 (8th Cir. 2000).
100. Cuffley v. Mickes, 208 F.3d 702, 705 (8th Cir. 2000).
101. Cuffley was decided on Equal Protection grounds, but the court specifically noted that "[w]hether this claim arises under the Equal Protection Clause or the First Amendment, it is clear that the State may not deny access to the Adopt-A-Highway program based on the applicant's views." Id. at 706 n.3.
102. But see Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075, 1079-81 (5th Cir. 1995) (holding that state's reason for denying the Klan's application to adopt a portion of highway outside a public housing project was reasonable and viewpoint neutral, since the state sought to prevent the Klan from intimidating residents and frustrating a federal desegregation order).
103. The rights were later re-sold to Minute Maid, a subsidiary of Coca-Cola, which reportedly paid $170 million for twenty-eight years of naming rights. See Clay Robinson, Please, Let's Not End Up with Any 'McParks' in Texas, HOUS. CHRON., Aug. 6, 2006, (Outlook), at 3;
104. see also Lay's Alma Mater Struggles with Donation: Seeks Alternative Use 'for Stock Profits Instead of Economics Chair Position, MSNBC.COM, May 26, 2006, http://www.msnbc.msn.com/id/12992280.
105. See, e.g.. Shannon Allen, Jubilee Hall, SETON HALL MAG., Nov. 1, 2005, available at http://www.shu.edu/news/magazine/2005-fall-static/2005_fall_hallmark5.html (reporting that "Seton Hall has removed the name of L. Dennis Kozlowski from" one of its buildings);
106. Jeffrey N. Gangemi, Heard on Campus: Tyco Conviction Leads to Renaming, BUS. WK. ONLINE, Sept. 25, 2005, http://www.business-week.com/bschools/content/sep2005/bs20050925_7716.htm (reporting same);
107. John R. Wilke et al., Scrushy May Be Indicted Today, WALL ST. J., NOV. 4, 2003, at A3 (noting Richard M. Scrushy's "alleged role in a massive accounting fraud at the company he founded" and also noting that his "name adorns roads, buildings, schools and athletic fields" throughout Alabama).
108. Strickland, supra note 37 (quoting a school board member as saying that selling naming rights would "cheapen" the school district).
109. Larry King, The World-Herald's Priority Is What Best Serves the Readers, OMAHA WORLD HERALD (Omaha, Neb.), Aug. 10, 2003, at lib (explaining newspaper's decision to call a convention center by its popular name despite a recent sale of naming rights);
110. see also Mark Zaloudek, Should Donors Get To Name Public Schools?, SARASOTA HERALD-TRIB. (Sarasota, Fla.), Mar. 21, 2005, at E1.
111. CITIZENS' CAMPAIGN FOR COMMERCIAL-F REE SCHOOLS, WHAT'S WRONG WITH COMMERCIALIZING THE PUBLIC SCHOOLS?, available at http://www.scn.org/cccs/arguments.html (last visited July 21, 2006);
112. see also Eason, supra note 24, at 399.
113. Kadaba, supra note 13.
114. See Spencer, supra note 20.
115. Kadaba, supra note 13.
116. See Randy Krebs, Our View: Schools Should Think Before Entering Deal for Naming Rights, Sr. CLOUD TIMES (St. Cloud, Minn.), July 19, 2005, at 5B (noting that interest in naming rights was focused on one of city's larger, more affluent schools, and asking whether such deals "could... foster segregation by economics").
117. See San Antonio v. Rodriguez, 411 U.S. 1, 54-55 (1973) (rejecting Equal Protection challenge to system of school finance based on local property taxes).
118. See Kiesewetter, supra note 20 (citing a public school official as saying, "AU too often private donations go to private schools-the Notre Dames and Harvards. Those donations only affect a small number of people and have very little impact on the local community.").
119. MacDonald, supra note 46 (quoting education advocacy association director opposed to commercialism as saying "it then says to taxpayers they no longer have responsibility for the public schools").
120. UNIV. OF OR. EDUC. RES. INFO. CTR., supra note 44, at 10.
121. Thoraburg, supra note 24, at 333.
122. MOLNAR, SPONSORED SCHOOLS, supra note 8, at 8.
123. In June 1999, in direct response to concerns about commercialism in schools, San Francisco passed the "Commercial-Free Schools Act" to set limits on in-school advertising. San Francisco Passes the Commercial-Free Schools Act, NOT FOR SALE (Ctr. for Commercial-Free Pub. Educ, Oakland, Ca.), Spring 2000, at 1, available at http://www.ibiblio. org/commercialfree/newsletters/nl300.pdf.
124. See, e.g., CITIZENS' CAMPAIGN FOR COMMERCIAL-FREE SCHOOLS, CORPORATIONS LOSE BATTLE FOR SEATTLE SCHOOLS (Nov. 21, 2001), available at http://epsl.asu.edu/ceru/Articles/CERU-0111-60-OWI. doc Gast visited June 10, 2007).
125. See Mary Jean Dolan, The Special Public Purpose Forum and Endorsement Relationships: New Extensions of Government Speech, 31 HASTINGS CONST. L.Q. 71, 79-100 (2004) (discussing the constitutionality of various content limitations, including those-such as "no public controversy" policies and religion-based policies-which fare poorly against First Amendment challenges).
126. See also infra notes 257-59 and accompanying text.
127. Though no complete survey of naming rights policies is yet available, only 44.3% of 174 public school principals in a recent North Carolina survey reported having a policy in place for dealing with commercialism in schools. Di Bona et al., supra note 43, at 49.
128. Don Hunter, Assembly Alters Naming Policy; Public Places: Emphasis on the Deceased When It Comes to City Parks, Facilities, ANCHORAGE DAILY NEWS, June 21, 2006, at B1 (reporting that the Anchorage Assembly recently considered and then specifically eliminated guidelines which would have given guidance to the sale of naming rights to corporate or private investors, despite recognizing that the practice does occur).
129. See Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225, 1229-32 (7th Cir. 1985);
130. E. Timor Action Network v. New York, 71 F. Supp. 2d 334, 338-40 (S.D.N.Y 1999);
131. Nat'l Abortion Fed'n v. Metro. Atlanta Rapid Transit Auth., 112 F. Supp. 2d 1320, 1326 (N.D. Ga. 2000). Some courts have found that the lack of practical oversight over a particular policy was sufficient to create a limited public forum for free speech.
132. See, e.g., Christ's Bride Ministries, Inc. v. Southeastern Pa. Transit Auth., 148 F.3d 242, 251 (3d Cir. 1998);
133. see also Frayda S. Bluestein, A Funny Thing Happened on the Way to the Forum: Free Speech Issues with Government Websites 5 (Sept. 2001) (unpublished manuscript, on file with author) (citing cases);
134. Dolan, supra note 79, at 81 ("[W]here a municipality imposes no selective system of controls and has a history of allowing a broad range of speech in its advertising forums, courts will find a designated forum and apply strict scrutiny to invalidate all rejections of proposed speech.") (internal citations omitted).
135. Strauss, supra note 1.
136. But see Zaloudek, supra note 65 (reporting that Philadelphia schools refuse naming rights deals with alcohol or tobacco companies).
137. Schmadtke, supra note 45.
138. See, e.g., DURHAM (N.C.) PUB. SCH., DPS DISTRICT POLICIES, Policy No. 6090 (1993) (revised 1999), available at http://www.dpsnc.net/index.php?option=com_kb&Itemid= 1&page=articles&articleid=205 ("New schools built in the Durham Public Schools normally will be named after townships, regions, or community characteristics.").
139. See, e.g., BELLINGHAM (WASH.) SCH. DIST. 501 BD. OF SCH. DIRS., SCHOOL BOARD POLICIES AND PROCEDURES, Policy No. 9250 (1995), available at http://www.bham.wednet.edu/policies/9250Policy.htm;
140. ROCHESTER (N.Y.) CITY SCH. DIST. BD. OF EDUC., POLICY MANUAL, Policy No. 7500-R (1998), available at http://www.rcsdk12.org/BOE/PM/PM%20pdfs/7000/ 7500%20Naming%20Facilities.pdf;
141. BUNCOMBE COUNTY (N.C.) BD. OF EDUC., DISTRICT POLICIES, Policy No. 535 (1992), available at http://www.buncombe.k12.nc.us/9651052316140357/Ub/9651052316140357/Policies/ Business%20Non%20Instructional%20500/535.pdf;
142. ANNE ARUNDEL COUNTY (MD.) PUBLIC SCHOOLS BD. OF EDUC, BOARD POLICIES AND ADMINISTRATIVE REGULATIONS, Policy No. 706 (1965) (revised 1989), available at http://www.aacps.org/aacps/boe/ board/newpolicy/Sections/section_700/adminreg706.pdf (providing for a naming committee);
143. BROCKPORT (KY.) CENT. SCH. DIST. BD. OF EDUC, BOARD POLICIES, Policy No. 5850, NAMING SCHOOL FACILITIES (1990) (revised 1990, 1994, 2000, 2004), available at http://brockport.k12.ny. us/policies.cfm?pid=151.
144. See, e.g., SHENANDOAH COUNTY (VA.) PUB. SCH. SCH. BD., POLICY MANUAL, §F: NAMING SCHOOL FACILITIES (1997), available at http://www.shenandoah.k12.va.us/pdf/policymanual/ Sec%20F%2005-06.pdf;
145. HERMISTON (OR.) SCH. DIST. 8, ONLINE POLICY MANUAL: NAMING SCHOOL FACILITIES (1994) (revised 2005), available at http://policy.osba.org/hermiston/F/FF%20D1.pdf;
146. EL PASO INDEP. SCH. DIST. BD. OF TRS., ALERT POLICIES: NAMING SCHOOLS, OTHER FACILITIES, AND FUNCTION AREAS (2006), available at http://www.episd.org/Board/docs/ policyalerts/alertpolicies/05-2006_alertpolicies/CWLocal-.pdf;
147. OXNARD (CAL.) UNION HIGH SCH. DIST. SCH. BD., BOARD POLICIES, Policy No. 7310 (1993) (revised 1993, 1994, 2004), available at http://www.ouhsd.k12.ca.us/FLS/Policies/7000/b-p7310.pdf;
148. TORRANCE (CAL.) UNIFIED SCH. DIST. BD. OF EDUC., BOARD POLICIES, Policy No. 7310 (2001), available at http://www.tusd.org/pages/supt/ BdPolicy/7000.pdf;
149. JONESBORO (ARK.) PUB. SCH. DIST., JPS APPROVED POLICIES, Job Code FF: NAMING OF SCHOOL FACILITIES (2002), available at http://170.211.100.4/policy/FF.html.
150. CARTERET COUNTY (N.C.) PUB. SCH. SYS. BD. OF EDUC, POLICY MANUAL, Policy FF (revised 2006), available at http://www.carteretcountyschools. org/hr/PolicyManual/facilitiesdev/FF.doc;
151. SAINT LOUIS (MO.) BD. OF EDUC, BOARD POLICIES AND ADMINISTRATIVE REGULATIONS, Policy No. 7600 (2001), available at http://www.slps.org/Board_Education/policies/7600.htm.
152. But see MONONA GROVE (WIS.) SCH. DIST. BD. OF EDUC, BOARD POLICIES, Policy No. 940 (2003), available at http://www.mgsd.k12.wi.us/locations/districtoffice/school_board/Policies/900/ 940.pdf (allowing new facilities "to be named after an individual or entity if the individual or entity is considered a major contributor to the Monona Grove School District").
153. VOLUSIA COUNTY (FLA.) SCH. DIST. SCH. BD., SCHOOL BOARD POLICIES, Policy No. 610 (2004), available at http://www.volusia.k12.fl.us/legalservices/610.pdf;
154. HAW. BD. OF EDUC, BOE POLICIES, Policy No. 6750 (1971) (amended 1979, 2005), available at http:/lilinote.k12.hi.us/STATE/BOE/POL1.NSF/ 85255a0a0010ae82852555340060479d/df3ede666ef58dd30a2566a3008371be?OpenDocument ("School facilities may be named to honor major benefactors whose significant contributions benefit the school, school-community, or public education.")
155. PERRYSBURG (OHIO), BYLAWS & POLICIES, Policy No. 7110, available at http://www.neola.com/ perrysburg-oh/search/policies/po7110.htm;
156. COLUMBIA (MO.) SCH. DIST. NO. 93 BD. OF EDUC, POLICIES AND REGULATIONS, Policy FF (1997) (revised 2006), available at http://www.columbia.k12.mo.us/policies/FF-S.pdf.
157. See, e.g., COBB COUNTY (GA.) SCH. DIST. BD. OF EDUC., COBB COUNTY SCHOOL DISTRICT ADMINISTRATIVE RULES, Administrative Rule FF (1969) (revised 1983, 1984, 1988, 1991, 1995, 1999, 2004, 2005), available at http://www.cobbk12.org/ centraloffice/adminrules/F_Rules/Rule%20FF.htm;
158. FAIRFAX COUNTY (VA.) PUB. SCH. SCH. BD., POLICIES, NOTICES, AND REGULATIONS, Policy No. 8170.1 (1987) (revised 2004), available at http://www.fcps.edu/Directives/P8170.pdf;
159. FALLS CHURCH CITY (VA.) PUB. SCH. SCH. BD., BOARD POLICIES, Policy No. 4.25 (2006), available at http://www.fccps.k12.va.us/html/ facilitiespolicies/4.25r.pdf.
160. See, e.g., COBB COUNTY (GA.) SCH. DIST., supra note 93.
161. See, e.g., SCH. DIST. OF PHILA. BD. OF EDUC, SCHOOL DISTRICT OF PHILADELPHIA POLICIES, Policy No. 712 (1987) (revised 1994), available at http://www.phila.k12.pa.us/offices/administration/policies/ 712.html;
162. SCH. DIST. OF WAUKESHA (WIS.) SCH. BD., DISTRICT POLICIES, Policy No. 9600G (1990) (2000), available at http://www.waukesha.k12.wi.us/Library/ lcumming/9600g.pdf.
163. But see BROCKTON (MASS.) PUB. SCH., SCHOOL COMMITTEE POLICY MANUAL, Policy FF (2003), available at http://www. brocktonpublicschools.com/administration/policy_manual/ff.html ("It is the policy of the Brockton School Committee not to name a part or area of a building facility, grounds, or parts thereof, once the building, facility, grounds or parts thereof has been named for another individual person.").
164. LOUDOUN COUNTY (VA.) PUB. SCH. SCH. BD., SCHOOL BOARD BYLAWS, Bylaw §2-33 (2004), available at http://www.loudoun.k12.va.us/50975518115039/lib/50975518115039/Chapter%202/2-33. pdf;
165. VENTURA (CAL.) UNIFIED SCH. DIST. BD. OF EDUC, BOARD POLICY, Policy No. 7511 (1992), available at http://www.ventura.k12.ca.us/ legalcounsel/id927.htm.
166. The author's search found only one policy that allowed for rescinding a name, and even then the policy applied only in "extraordinary circumstances" including a situation where the sponsor has been convicted of "a felony, a crime involving moral turpitude, or [has] participated in any other disreputable behavior which would have a negative reflection or would bring discredit upon district students or staff." CLARK COUNTY (NEV.) SCH. DIST. BD. OF TRS., POLICIES & REGULATIONS, Policy No. 7223 (2004), available at http://ccsd.net/directory/pol-reg/pdf/7223P.pdf.;
167. see also TENN. BD. OF REGENTS, POLICIES AND REGULATIONS, Policy No. 4:02:05:01 (1992), available at http://www.tbr.state.tn.us/policies_guidelines/ business_policies/4-02-05-01.htm ("[N]o building may bear the name of an individual convicted of a felony.").
168. See, e.g., Dave Aeikens, St. Cloud District Debates Playground Sponsorship, Names, ST. CLOUD TIMES (St. Cloud,
169. PITT COUNTY (N.C.) SCH. BD. OF EDUC, BOARD POLICIES AND PROCEDURES, Policy No. 5.401(revised 1993) (reviewed 2005), available at http://www.pitt.k12.nc.us/boe/files/5/5. 401_Naming_Schools_and_Ancillary_Facilities.doc;
170. FAIRFAX COUNTY (VA.) PUB. SCH. SCH. BD., POLICIES, NOTICES, AND DIRECTIVES, Regulation No. 8170.3 (2004), available at http://www.fcps.edu/Directives/R8170.pdf.
171. See JEFFCO (COLO.) PUB. SCH. BD. OF EDUC, DISTRICT POLICY, Policy FF (1997) (revised 2005), available at http://jeffcoweb.jeffco.k12.co.us/ board/policies/ff.html (requiring "outstanding service," rather than a particular "contribution," for an individual's name to be considered).
172. See MILWAUKEE (WIS.) PUB. SCH. BD. OF GOVERNANCE, ADMINISTRATIVE POLICIES OF THE MILWAUKEE PUBLIC SCHOOLS, Policy No. 5.01(1986) (revised 1995, 2000, 2003, 2006), available at http://www2.milwaukee.k12.wi.us/governance/rulespol/policies/PDF/CH05/5_01.pdf.
173. See Irene Segal Ayers, What Rudy Hasn't Taken Credit For: First Amendment Limits on Regulation of Advertising on Government Property, 42 ARIZ. L. REV. 607, 627-37 (2000) (describing "the ongoing muddle of public forum doctrine and commercial/noncommercial distinctions" in cases involving advertising on government property).
174. D. Russakoff, Finding the Wrongs in Naming Rights; School Gym Sponsorship Sparks Furor, WASH. POST, Dec. 16, 2001, at A3 (quoting school board director of corporate development as saying, "We're not violating their [students'] rights. We're getting them a gym.").
175. On the other hand, "proprietary" regulations on naming rights deals-restrictions that require contracts of a certain length, or provide deals on a first-come first-served basis, are likely to be upheld. See, e.g., Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974) (finding that a city acting in its proprietary capacity could make reasonable choices concerning the type of advertising displayed in its public transit vehicles);
176. Hubbard Broad., Inc. v. Metro. Sports Facilities Comm'n, 797 F.2d 552, 556 (8th Cir. 1986) (holding that City acted as proprietor by selling "advertising space on government property in order to generate revenue" and therefore did not create a public forum).
177. Note, The Curious Relationship Between the Compelled Speech and Government Speech Doctrines, 117 HARV. L. REV. 2411, 2432 (2004) ("The government speech line of cases remains the ugly stepchild of First Amendment doctrine."). The First Amendment's family portrait has often been painted in such unflattering terms.
178. See, e.g., William Van Alstyne, Remembering Melville Nimmer: Some Cautionary Notes on Commercial Speech, 43 UCLA L. REV. 1635, 1635 (1996) ("[T]he Supreme Court is generally of the view-and has been for twenty years-that commercial speech is not some kind of orphan left out in the cold under the First Amendment.").
179. The pioneering work arguing for greater recognition of government as a creator of speech, and not just as regulator of it, is MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS, LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983).
180. 500 U.S. 173 (1991).
181. Id. at 203. Earlier cases implicitly reached the conclusion that Rust eventually adopted.
182. See, e.g., Muir v. Ala. Educ. Television Comm'n, 688 F.2d 1033, 1044 (5th Cir. 1982) (en banc).
183. Rust, 500 U.S. at 179. Based on this limitation, some have described Rust as a constitutional conditions case rather than a government speech case.
184. See, e.g., Robert C. Post, Subsidized Speech, 106 YALE LJ. 151, 169 (1996).
185. Rust, 500 U.S. at 193.
186. 515 U.S. 819 (1995).
187. Id. at 845-46. Although scholars tend to identify Rosenberger as a pillar of the government speech doctrine, the Court actually approached the case through the lens of forum analysis.
188. See id. at 829-31. This Article addresses public forum analysis in more detail in section III.C.
189. See also Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88 (1998) (upholding, against a viewpoint discrimination challenge, NEA grant-making procedures that funded some constitutionally protected activities but not others).
190. See Rosenberger, 515 U.S. at 833;
191. see also Latino Officers Ass'n v. New York, 196 F.3d 458, 468 (2d Cir. 1999) (noting, in dicta, that "the government may regulate its own expression in ways that would be unconstitutional were a private party the speaker").
192. Later cases suggest, but do not hold, that the religious content of the disputed speech was behind the Court's determination in Rosenberger. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 111-12 (2001) ("[W]e reaffirm our holdings in Lamb's Chapel and Rosenberger that speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint.").
193. 531 U.S. 533 (2001).
194. See id. at 548-49 (overturning statute which provided government funding for public interest lawyers on the condition that the lawyers not challenge welfare policy);
195. see also Commonwealth v. Davis, 39 N.E. 113 (Mass. 1895) (Holmes, J.)
196. aff'd sub nom. Davis v. Massachusetts, 167 U.S. 43, 47 (1897) ("For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.").
197. But see Hague v. CIO, 307 U.S. 496, 515 (1939) ("We have no occasion to determine whether ... the Davis Case was rightly decided .... Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.").
198. Velazquez, 531 U.S. at 541-42 (quoting Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000));
199. see also Johanns v. Livestock Mktg Ass'n, 544 U.S. 550, 563 (2005).
200. Of course this solution is imperfect, because naming rights contracts are unlikely to respect the local election cycle, and the ultimate decisions about naming rights deals-at least small ones-might be made by unelected school officials like school principals. Nevertheless, courts have emphasized the importance of "accountability" in government speech cases. Southworth, 529 U.S. at 235;
201. see Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 675 (1998) (noting that broadcasters can be held "accountable" for the editorial decisions they make);
202. see also Leslie Gielow Jacobs, Who's Talking? Disentangling Government and Private Speech, 36 U. MICH. J.L. REFORM 35 (2003) (emphasizing importance of government accountability and the existence of an identifiable message).
203. Bezanson & Buss, supra note 5, at 1382 ("More fundamentally, the Rust-Rosenberger distinction relied upon in Velazquez doesn't work because it rests on an incoherent theoretical premise, and lacks a clear understanding of government speech under the Constitution.");
204. Note, supra note 105, at 2417-18.
205. As Justice Scalia noted in his Velazquez dissent, "If the private doctors' confidential advice to their patients at issue in Rust constituted 'government speech,' it is hard to imagine what subsidized speech would not be government speech.... Even respondents agree that 'the true speaker in Rust was not the government, but the doctor.'" 531 U.S. at 554 (Scalia, J., dissenting).
206. Post, supra note 109, at 152.
207. William T. Mayton, "Buying-Up Speech": Active Government and the Terms of the First and Fourteenth Amendments, 3 WM. & MARY BILL RTS. J. 373, 376 (1994) ("[T]he decisions seem incoherent, a medley of misplaced epigrams (such as 'no duty to subsidize a right') and dubious psychological speculations (such as when choice becomes coercion).") (internal citation omitted).
208. 430 U.S. 705 (1977).
209. See id. at 706-07, 717. Specialty license plates have been the subject of an extensive First Amendment literature ever since Wooley. The discussion here is intended only to reflect recent developments. For a more complete, though now somewhat outdated, discussion
210. see Leslie Gielow Jacobs, Free Speech and the Limits of Legislative Discretion: The Example of Specialty License Plates, 53 FLA. L. REV. 419 (2001);
211. see also Jacobs, supra note 119, at 98 ("The correct conclusion is that, as currently run, both vanity and specialty programs are private speech forums. Neither constitutes legitimate government speech because both accountability and an identifiable message are lacking.").
212. 361 R3d 786, 799-800 (4th Cir. 2004). In another license plate case two years prior, the Fourth Circuit struck down a state restriction prohibiting display of the Confederate flag, finding that it was intended to suppress the viewpoint of the Sons of Confederate Veterans, who were pushing for the plate.
213. See Sons of Confederate Veterans Inc. v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d 610, 623 (4th Cir. 2002).
214. See Planned Parenthood of S.C. Inc., 361 F.3d at 794;
215. id. at 799 (describing the plates as "mixed speech").
216. id. at 800 (Luttig, J., concurring).
217. See id. at 795 (opinion of Michael, J.);
218. id. at 800 (Luttig, J., concurring).
219. Planned Parenthood of S.C. Inc. v. Rose, 373 F.3d 580, 581 (4th Cir. 2004) (denying rehearing en banc);
220. see also Sons of Confederate Veterans Inc. v. Comm'r of the Va. Dep't of Motor Vehicles, 305 F.3d 241 (4th Cir. 2002) (denying rehearing en banc).
221. Planned Parenthood of S.C. Inc., 373 F.3d at 587 (Shedd, J., dissenting from denial of rehearing en banc).
222. ACLU of Tenn. v. Bredesen, 441 F.3d 370, 380 (6th Cir. 2006).
223. Id. at 375-77.
224. Id. at 377-80.
225. 544 U.S. 550 (2005).
226. Bredesen, 441 F.3d at 375 (internal citation omitted).
227. See id. at 380 n.l (Martin, J., concurring in part and dissenting in part) ("Perhaps of some interest, when this opinion is filed, at least three circuits (4th, 5th, and 6th) will have spoken on the issue, reaching at least three different conclusions, via at least sixteen separate opinions.").
228. Id. at 380.
229. Nor are the Fourth and Sixth Circuits the only courts to face down the license-plates-asgovernment-speech question. In Henderson v. Stalder, the District Court for the Eastern District of Louisiana preliminarily enjoined Louisiana from producing a "Choose Life" license plate specifically approved by the Louisiana legislature. 112 F. Supp. 2d 589, 602 (E.D. La. 2000)
230. rev'd on other grounds, 287 F.3d 374 (5th Cir. 2002) (finding lack of standing). The court considered the license plate to be government speech, but ruled that such speech must be viewpoint neutral, blending (without comment) government speech and forum analysis, thus implicitly recognizing an overlap discussed at greater length in section IU.C.3 of this Article.
231. See id. at 598. On appeal, a panel of the Fifth Circuit found that the Tax Injunction Act barred jurisdiction, and vacated the district court's injunction against the "Choose Life" plates, noting in dicta "our disagreement that the injunction obtained by Keeler is constitutionally appropriate." Henderson v. Stalder, 407 F.3d 351, 359 (5th Cir. 2005). Eight judges dissented from denial of rehearing en banc.
232. Henderson v. Stalder, 434 F.3d 352 (2005).
233. Cf. Frederick Schauer, Is Government Speech a Problem?, 35 STAN. L. REV. 373, 386 (1983) (reviewing MARK G. YUDOF, WHEN GOVERNMENT SPEAKS: POLITICS: LAW, AND GOVERNMENT EXPRESSION IN AMERICA (1983)) ("A definitive answer to the questions that government speech presents would require definitive conclusions about the effects of communication in general and about the philosophical purposes and underpinnings of the first amendment.").
234. Note, supra note 105, at 2412 ("[P]laintiffs have uniformly been willing to accept Rust's definition of the battlefield: that is, the only question to be answered is the factual one of who is speaking.").
235. See supra notes 45-54 and accompanying text.
236. Michael Stokes Paulsen, A Funny Thing Happened on the Way to the Limited Public Forum: Unconditional Conditions on "Equal Access" for Religious Speakers and Groups, 29 U.C. DAVIS L. REV. 653, 703 (1996) ("A private speaker in a government-created limited public forum is not the government.").
237. See Widmar v. Vincent, 454 U.S. 263, 274 (1981) (rejecting government speech characterization and holding that "an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices.");
238. Rust v. Sullivan, 500 U.S. 173, 200 (1991) ("[T]he existence of a Government 'subsidy,' in the form of Government-owned property, does not justify the restriction of speech" in traditional public forums.).
239. See Note, supra note 105, at 2412.
240. COBB COUNTY (GA.) SCH. DIST. BD. OF EDUC, supra note 93 ("The Cobb County School District (District) recognizes that the official names of its facilities are vital to their public image.");
241. see also CARTERET COUNTY (N.C.) PUB. SCH. SYS. BD. OF EDUC., supra note 90 ("The naming or renaming of a school or the creation of a commemorative or memorial is a matter deserving the thoughtful attention of the Board of Education.").
242. ROCHESTER (N. Y.) CITY SCH. DIST. BD. OF EDUC., supra note 88.
243. HAW. BD. OF EDUC., supra note 91;
244. see also NEWTON-CONOVER (N.C.) CITY SCH. BD. OF EDUC., NCCS POLICY, Policy No. 7302 (2000), available at http://www.nccs.k12.nc.us/Policy/Policy7000. doc. ("[N]aming or renaming a facility [is] a significant endeavor since the name of a facility can reflect upon the students, staff, school district and community.").
245. 126 S. Ct. 1951 (2006).
246. Id. at 1960.
247. Establishment Clause jurisprudence offers an analogue to this "endorsement" theory. See, e.g., Epperson v. Arkansas, 393 U.S. 97, 109 (1968). But because religious speech raises thorny complications beyond the scope of this Article, I do not rely on those cases here.
248. See ACLU of Tenn. v. Bredsen, 441 F.3d 370, 376 (6th Cir. 2006) ("[T]here is no reason to doubt that a group's ability to secure a specialty [license] plate amounts to state approval.");
249. Jacobs, supra note 119, at 91 ("Unquestionably, groups are motivated to participate in the [Adopt-A-Highway] program because of the acknowledgement that they will receive. But that motivation does not mean that it is the groups that are speaking.").
250. Wells v. City and County of Denver, 257 F.3d 1132, 1140 (10th Cir. 2001) ("In the plaintiffs' view ... the plain language of the sign demonstrates that it is a message from-not to-the sponsors, and they assert that they are equally entitled to communicate their message from within the fence. We conclude that the sign is Denver's speech, not that of the listed corporations."); Knights of the KKK v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093 (8th Cir. 2000).
251. See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 578 (2005) (Souter, J., dissenting) ("It means nothing that Government officials control the message if that fact is never required to be made apparent to those who get the message, let alone if it is affirmatively concealed from them.");
252. see also Bezanson & Buss, supra note 5, at 1384 (arguing that "government speech should be limited to purposeful action by government, expressing its own distinct message, which is understood by those who receive it to be the government's message.") (emphasis added);
253. Dolan, supra note 79, at 74-75 ("Where an affiliation resembles a partnership, so that the public will perceive government approval of a sponsor's message, government should retain control over selection and the government speech analysis should apply.") (emphasis added);
254. id. at 123 ("What should be essential to the reasonable observer is both the nature of the affiliation and the government's relationship overall to the speakers in the program or venue.").
255. Dolan, supra note 79, at 118.
256. 544 U.S. 550 (2005).
257. Id. at 563-64.
258. But see id. at 564 n.7 ("If a viewer would identify the speech as respondents', however, the analysis would be different.").
259. Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L.J. 983, 988, 1051 (2005).
260. Id. at 1052-54.
261. 523 U.S. 666 (1998).
262. Id. at 674;
263. see also Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 585-86 (1998)
264. (finding that viewpoint neutrality is not required in selection of art exhibits for public funding). Randall Bezanson has suggested that "Forbes may be the first decision expressly acknowledging the First Amendment significance of government's role as a speaker." Randall P. Bezanson, The Government Speech Forum: Forbes and Finley and Government Speech Selection Judgments, 83 IOWA L. REV. 953, 961 (1998) (footnoted omitted).
265. See Dolan, supra note 79, at 110 ('To show government speech, a municipality must show that it has actively screened each potential private speaker and allowed only those which the administrators conclude further program goals.") (internal citations omitted).
266. Riley v. Nat'l Fed'n for the Blind, 487 U.S. 781, 796-97 (1988);
267. Wooley v. Maynard, 430 U.S. 705, 714 (1977) (holding that the First Amendment's guarantees "include[] both the right to speak freely and the right to refrain from speaking at all").
268. See Wooley, 430 U.S. at 717.
269. 319 U.S. 624 (1943). But see Abner S. Greene, The Pledge of Allegiance Problem, 64 FORDHAM L. REV. 451, 469, 473-75 (1995) (suggesting that if reasonable observers would understand the action as being compelled, it would not be not expressive and not truly "speech").
270. Barnette, 319 U.S. at 633.
271. Id. at 642.
272. See supra notes 12-17.
273. Lynn Hicks, College Sees Dollar Signs on Its Sign, USA TODAY, Aug. 1, 2007, at 1A ("A college diploma could soon come with a corporate name.").
274. Bruce Darrow, the Brooklawn School Board President who led the initial naming rights drive, said in 2004, "It's the wave of the future. I'm looking into selling advertising on the children's basketball uniforms." Pennington, supra note 30.
275. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969).
276. Wooley v. Maynard, 430 U.S. 705, 721 (1977) (Rehnquist, J., dissenting).
277. 547 U.S. 47 (2006).
278. Id. at 1308.
279. See subsection III.C.3 for a discussion of government-commercial speech.
280. The following section on forum analysis addresses the relevance of the speaker's location.
281. Of course, a speaker's identity may be relevant for determining the content of its speech.
282. Commercial entities are to some degree presumed to engage in commercial speech, but not necessarily exclusively so. See supra notes 47-50 and accompanying text and infra notes 202 & 236 and accompanying text.
283. Some scholars attribute this imprecision to the inherent difficulties of classifying commercial speech. See Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1, 7 (2000);
284. Nat Stern, In Defense of the Imprecise Definition of Commercial Speech, 58 MD. L. REV. 55, 146 (1999).
285. Stern, supra note 178, at 56;
286. see also Piety, supra note 55, at 381.
287. 425 U.S. 748 (1976).
288. Id. at 762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385 (1976));
289. see also Thomas C. Goldstein, Nike v. Kasky and the Definition of "Commercial Speech", 2003 CATO SUP. CT. REV. 63, 72 (referring to this as the "most often-repeated" definition of commercial speech the Court has offered).
290. See, e.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943) (invalidating on First Amendment grounds an ordinance and license tax on evangelists, and finding that the "sale" of religious literature does not turn evangelism into commercial speech).
291. 487 U.S. 781(1988).
292. Id. at 789, 798.
293. Id. at 796.
294. Id.
295. 492 U.S. 469 (1989).
296. Id. at 474.
297. Id.
298. Id.;
299. see also Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 563 & n.5 (1980) (refusing to grant full free speech protection to speech simply because it "links a product to a current public debate");
300. N.Y Magazine v. Metro. Transit Auth., 987 F. Supp. 254, 262 & n.4 (S.D.N.Y. 1997) (denying full protection and finding that, although a New York Magazine ad "inextricably intertwined" its political and commercial messages, the former was simply representative of the kind of commentary the magazine was selling), vacated in part by N.Y. Magazine v. Metro Transit Auth., 136 F.3d 123 (1998).
301. ROGER A. SHINER, FREEDOM OF COMMERCIAL EXPRESSION 308 (2003);
302. see also Piety, supra note 55, at 371;
303. Scot Silverglate, Comment, Subliminal Perception and the First Amendment: Yelling Fire in a Crowded Mind?, 44 U. MIAMI L. REV. 1243, 1261 n.153 (1990) (citing VANCE PACKARD, THE HIDDEN PERSUADERS 7-8 (1957) (quoting Louis Cheskin)).
304. 463 U.S. 60 (1983).
305. Id. at 64 (quoting Ohralik v. Ohio State Bar Ass'n., 436 U.S. 447, 455-56 (1978)).
306. Id. at 67-68.
307. Id. (footnote omitted).
308. See, e.g., Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419 (1993) (acknowledging "the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category"); Edenfield v. Fane, 507 U.S. 761, 765 (1993) ("[A]mbiguities may exist at the margins of the category of commercial speech."); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637 (1985) ("[Subject to doubt, perhaps, are the precise bounds of the category of expression that may be termed commercial speech....").
309. 45 P.3d 243 (Cal. 2002), cert.as grzanted, 537 U.S. 1099, cert, dismissed, 539 U.S. 654 (2003).
310. Id.
311. Goldstein, supra note 181, at 65.
312. Kasky, 45 P.3d at 248.
313. Id. at 315;
314. see also Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y, 447 U.S. 557, 563 n.5 (1980) (declaring difference between "direct comments on public issues" and statements about public policy "made only in the context of commercial transactions").
315. See generally Piety, supra note 55.
316. Kasky, 45 P.3d at 258.
317. Id.
318. Id.
319. See, e.g., Erwin Chemerinsky & Catherine Fisk, What Is Commercial Speech? The Issue Not Decided in Nike v. Kasky, 54 CASE W. RES. L. REV. 1143 (2004);
320. Ronald K.L. Collins & David M. Skover, The Landmark Free-Speech Case That Wasn't: The Nike v. Kasky Story, 54 CASE W. RES. L. REV. 965 (2004);
321. J. Wesley Earnhardt, Nike, Inc. v. Kasky: A Golden Opportunity To Define Commercial Speech-Why Wouldn't the Supreme Court Finally "Just Do It™"?, 82 N.C. L. REV. 797 (2004);
322. Goldstein, supra note 181; Robert M. O'Neil, Nike v. Kasky - What Might Have Been . . ., 54 CASE W. RES. L. REV. 1259 (2004).
323. Nike Inc. v. Kasky, 539 U.S. 654, 665 (2003) (Kennedy, J., dissenting from dismissal of certiorari).
324. Id. (Breyer, J., dissenting from dismissal of certiorari)
325. See generally Collins & Skover, supra note 205;
326. Samuel A. Terilli, Nike v. Kasky and the Running-but-Going-Nowhere Commercial Speech Debate, 10 COMM. L. & POL'Y 383 (2005).
327. 316 U.S. 52(1942).
328. Id. at 54-55 (upholding constitutionality of municipal ordinance forbidding distribution of printed handbills for commercial advertising in the streets, even though half of the handbill in question was devoted to a nominally political protest). Valentine predated the mixed-message cases discussed above.
329. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 762 (1976) (internal citations omitted).
330. Id. at 754-56, 763-65.
331. Id. at 762.
332. 447 U.S. 557, 566 (1980).
333. Id. at 566.
334. Hoffman Estates v. Flipside, 455 U.S. 489, 504-05 (1982) (holding that the government may entirely ban commercial speech that proposes illegal transactions); Friedman v. Rogers, 440 U.S. 1, 15-16 (1979) (upholding statute prohibiting the practice of optometry under misleading names);
335. see also Jeffrey Lefstin, Note, Does the First Amendment Bar Cancellation of REDSKINS?, 52 STAN. L. REV. 665, 691 (2000) (exploring whether the trademark REDSKINS constitutes commercial speech).
336. Central Hudson, 447 U.S. at 566.
337. Id.
338. Id.
339. The Court has upheld as valid government interests the promotion of energy conservation, Central Hudson, 447 U.S. at 568, the prevention of drunkenness, 44 Liquormart Inc. v. Rhode Island, 517 U.S. 484 (1996), and the protection of public safety from the dangers of compounded drugs, Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002).
340. See also Fla. Bar v. Went for It, Inc., 515 U.S. 618 (1995) (applying Central Hudson and finding that Florida Bar rules prohibiting lawyers from using direct mail to solicit personal injury clients within thirty days of their injury easily met the first three prongs and more narrowly met the fourth as well).
341. 447 U.S. at 569-72.
342. Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. at 469, 480 (1989);
343. see also Fla. Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995) (holding that a regulation barring solicitation to prospective personal injury clients is not overbroad simply because it fails to distinguish between degrees of injury);
344. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001) (citing Florida Bar and striking down state restriction on tobacco advertising).
345. Post, supra note 178, at 5 ("The fundamental flaw in contemporary commercial speech doctrine, however, is that its primary doctrinal standard, the so-called Central Hudson test, is so vague and abstract as to fail entirely to express any specific constitutional values.").
346. 453 U.S. 490 (1981).
347. Id. at 508-13 (plurality opinion) (striking down the regulation on other First Amendment grounds).
348. Stern, supra note 178, at 65.
349. 478 U.S. 328 (1986).
350. Id. at 344 ("In short, we conclude that the statute and regulations at issue in this case, as construed by the Superior Court, pass muster under each prong of the Central Hudson test. We therefore hold that the Supreme Court of Puerto Rico properly rejected appellant's First Amendment claim.").
351. Id. at 346.
352. Students of Chief Justice Rehnquist's jurisprudence might note the shades of his "bitter with the sweet" jurisprudence, first and most famously articulated in Arnett v. Kennedy, 416 U.S. 134, 153-54 (1974). Rehnquist nevertheless concluded in Posadas that the commercial speech at issue "concern[ed] a lawful activity and [was] not misleading or fraudulent." Posadas, 478 U.S. at 340-41.
353. 517 U.S. 484 (1996).
354. Id. at 505-08.
355. Id. at 501.
356. See Developments in the Law-Corporations and Society, 117 HARV. L. REV. 2169, 2275-82 (2004);
357. Stern, supra note 178, at 72 ("The splintered opinions in 44 Liquormart should not obscure the fact that this decision heralded a more protective attitude toward commercial speech.").
358. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001);
359. see also Note, Making Sense of Hybrid Speech: A New Model for Commercial Speech and Expressive Conduct, 118 HARV. L. REV. 2836, 2854 (2005);
360. Stern, supra note 178, at 58.
361. Note, supra note 234, at 2849 ("Despite their expressive characteristics and similarities to both commercial speech and expressive conduct, exterior product designs currently do not receive any First Amendment protection.").
362. See id. at 2839 n. 14.
363. Nor would motivation alone be sufficient. Even if we "assume that the advertiser's interest is a purely economic one" that fact alone "hardly disqualifies him from protection under the First Amendment." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council Inc., 425 U.S. 748, 762 (1976).
364. See supra notes 47-55 and accompanying text.
365. STACY SAETTA & JIM MOSHER, PAC INST. FOR RESEARCH AND EVALUATION, CAN A LOCAL ORDINANCE LIMIT ALCOHOL SPONSORSHIP AND ADVERTISING? AN I NTRODUCTION 1, available at http://camy.org/ action/pdf/SponsorshipOrdinanceSummary.pdf.
366. See generally Piety, supra note 55, at 373-74, 400-10.
367. Nike essentially argued that its statements fell well outside of even a broad definition of commercial speech, and additionally suggested that the definition of commercial speech might be limited to speech that "addresses the qualities of a product as such (like its price, availability, or suitability)" and appears in an "advertisement" or "product label." Brief for the Petitioners at 21, Nike v. Kasky, 539 U.S. 654 (2003) (No. 02-575), 2003 WL 898993;
368. see also id., at 6, 24, 27, 30, 35-36 (suggesting that commercial speech is narrowly defined). Kasky's response echoed the California Supreme Court opinion, arguing inter alia that Nike's statements provided consumers with information to aid their buying decisions, and was intended to induce purchases of Nike products. Brief for Respondent at 29-35, Nike v. Kasky, 539 U.S. 654 (2003) (No. 02-575), 2003 WL 1844849.
369. Id. at 800 (Luttig, J., concurring) (describing the license plates as "hybrid" speech).
370. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 331 (2003) ("We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to 'sustaining our political and cultural heritage' with a fundamental role in maintaining the fabric of society.") (internal citation omitted).
371. See supra notes 12-17 and accompanying text;
372. see also Seth Grossman, Comment, Grand Theft Oreo: The Constitutionality of Advergame Regulation, 115 YALE L.J. 227, 234 (2005) (arguing that regulations of snack food "advergames" should pass the third prong of Central Hudson so long as the government "carefully and thoroughly compiles such evidence of the link between advergames and the health of children").
373. Compare Posadas de P.R. Assoes, v. Tourism Co. of P.R., 478 U.S. 328, 344 (1986) (holding that under Central Hudson it was "up to the legislature" to choose to reduce gambling by suppressing in-state casino advertising instead of some less speech-restrictive policy), with 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 509 (1996) ("Given our longstanding hostility to commercial speech regulation of this type, Posadas clearly erred in concluding that it was 'up to the legislature' to choose suppression over a less speech-restrictive policy.").
374. See also Metromedia Inc v. San Diego, 453 U.S. 490, 507-14 (1981) (plurality opinion) (finding that total ban on outdoor advertising passed all prongs of Central Hudson, even though it failed on other First Amendment grounds);
375. Liquormart, 517 U.S. at 508 (citing Metromedia for the proposition that "[o]ur commercial speech cases recognize some room for the exercise of legislative judgment").
376. Liquormart, 517 U.S. at 516.
377. 436 U.S. 447 (1978).
378. Id. at 468;
379. see also Fla. Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995) (upholding Florida bar association's prohibition on lawyers sending written solicitations to prospective personal injury clients within thirty days of an accident).
380. But see In re Primus, 436 U.S. 412, 431, 434 (1978) (finding that an ACLU lawyer's letter to a group of indigent political clients falls within the "generous zone of First Amendment protections reserved for associational freedoms" and that "[w]here political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterized government regulation of the conduct of commercial affairs.").
381. 483 U.S. 522 (1987).
382. Id. at 537 n.16 (citing United States v. O'Brien, 391 U.S. 367 (1968)).
383. These exceptions include obscenity, Miller v. California, 413 U.S. 15, 23 (1973)
384. and "fighting words," Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), neither of which are likely to be implicated by naming rights arrangements.
385. For the purposes of forum analysis, "place" includes not just physical property but even channels of communications such as an intraschool mail system. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983);
386. see also Rosenberger v. Rector and Visitor of the Univ. of Va., 515 U.S. 819, 830 (1995) ("The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable." (internal citations omitted));
387. Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800-01 (1985) (treating charitable contribution fund as property for purposes of forum analysis). The forum created by school naming rights deals thus includes not just the walls of a school, but the "name" of the school in a more metaphysical sense.
388. Perry, 460 U.S. at 46 (describing forum analysis).
389. Lefstin, supra note 216, at 706 ("The Une between 'general access' designated pubulic fora and 'selective access' nonpublic fora may be difficult to discern ....").
390. Compare Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075, 1078 (5th Cir. 1995) (finding that a state Adopt-A-Highway program did not create a public forum)
391. with Cuffley v. Mickes, 208 F.3d 702, 706 (8th Cir. 2000) (declining to reach forum analysis, but holding that "[w]hether this claim arises under the Equal Protection Clause or the First Amendment, it is clear that the State may not deny access to the Adopt-A-Highway program based on the applicant's views.").
392. See also Jacobs, supra note 119, at 90-91 (criticizing the use of forum analysis in Adopt-A-Highway cases and arguing that a government speech characterization would be more appropriate);
393. Suzanne Stone Montgomery, Note, When the Klan Adopts-A-Highway: The Weaknesses of the Public Forum Doctrine Exposed, 11 Wash. U. L.Q. 557, 558 (1999) ("[F]our different federal courts, confronted with three substantially similar programs, approached the public forum doctrine in five different ways.") (internal citations omitted).
394. See Cornelius, 473 U.S. at 809.
395. Perry, 460 U.S. at 45.
396. Widmar v. Vincent, 454 U.S. 263, 269-70 (1981);
397. see also Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (upholding reasonable restrictions on the distribution of religious literature and solicitation in an airport terminal, which is not a traditional public forum);
398. Cornelius, 413 U.S. at 805-13 (holding that Combined Federal Campaign created a nonpubulic forum in which restrictions must be reasonable, and that refusal to allow certain advocacy groups to participate in that forum did not abridge their First Amendment rights);
399. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 297-98 (1984) (upholding prohibition on sleep-in demonstration in a park that did not generally allow overnight camping);
400. Police Dept. v. Mosley, 408 U.S. 92 (1972) (striking down ordinance which prohibited labor-related picketing outside of a high school);
401. Cox v. Louisiana, 379 U.S. 536, 558 (1965) (overturning civil rights activist's convictions for disturbing the peace, obstructing a public passage, and picketing outside a courthouse);
402. Niemotko v. Maryland, 340 U.S. 268, 274, 284 (1951) (reversing disorderly conduct convictions where petitioner was convicted for having spoken about religion in a public park without a permit but the permit-granting process was entirely discretionary).
403. See supra notes 83-102 and sources cited therein.
404. See, e.g., Frisby v. Schultz, 487 U.S. 474, 487-88 (1988) (applying narrow reading and upholding ordinance prohibiting picketing "before or about" any residence or dwelling);
405. Grayned v. Rockford, 408 U.S. 104, 121 (1972) (upholding an ordinance prohibiting disruptive noisemaking adjacent to school);