The measure of government speech: Identifying expression's source

Boston University Law Review

Volumn 88, Issue 3, 2008, Pages 587-632

  Norton, Helen ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 46749134349     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (357)

1. See ACLU v. Bredesen, 441 F.3d 370, 372 (6th Cir. 2006), cert. denied sub nom., Hill v. Dixon, 548 U.S. 906 (2006).
2. See Robb v. Hungerbeeler, 370 F.3d 735, 737-38 (8th Cir. 2004), cert. denied, Rahn v. Robb, 543 U.S. 1054 (2005).
3. See Page v. Lexington County Sch. Dist. One, No. 3:06-249-CMC, 2007 WL 2123784, at *2-5 (D.S.C. July 20, 2007). In the interest of full disclosure, I note that I served pro bono as counsel of record in filing an amicus brief in support of respondent school board in this case upon appeal.
4. See Brief of Amici Nat'l Sch. Bds. Ass'n et al. in Support of Affirmance, Page v. Lexington County Sch. Dist One, No. 07-1697 (4th Cir. Oct. 25, 2007).
5. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800 (1985).
6. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994);
7. R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992).
8. Wooley v. Maynard, 430 U.S. 705, 717 (1977);
9. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
10. See Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000).
11. See Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1, 11 (2000);
12. Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L.J. 983, 992 (2005);
13. Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 569 (1980).
14. See, e.g., U.S. DEP'T OF HEALTH, EDUC., & WELFARE, SMOKING AND HEALTH: REPORT OF THE ADVISORY COMMITTEE TO THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE 31-40 (1964).
15. See Wendy E. Parmet & Jason A. Smith, Free Speech and Public Health: A Population-Based Approach to the First Amendment, 39 LOY. L.A. L. REV. 363, 378-80 (2006) (describing governmental public education campaign urging new parents to place infants on their sides or backs to prevent SIDS).
16. See Proclamation No. 8003, 71 Fed. Reg. 20,863 (Apr. 24, 2006) (issuing President George W. Bush's call upon Americans "to make daily exercise a priority").
17. Shiffrin, supra note 8, at 604.
18. ACLU v. Bredesen, 441 F.3d 370, 375-77 (6th Cir. 2006), cert. denied sub nom., Hill v. Dixon, 548 U.S. 906 (2006).
19. Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 799 (4th Cir. 2004).
20. Ariz. Life Coal., Inc. v. Stanton, No. 05-16971, 2008 WL 217012, at *12 (9th Cir. Jan. 28, 2008).
21. Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1091-96 (8th Cir. 2000), cert. denied, 531 U.S. 814 (2000).
22. Robb v. Hungerbeeler, 370 F.3d 735, 744-45 (8th Cir. 2004), cert. denied sub nom., Rahn v. Robb, 543 U.S. 1054 (2005);
23. see also Cuffley v. Mickes, 208 F.3d 702, 708-09 (8th Cir. 2000), cert. denied sub nom., Yarnell v. Cuffley, 532 U.S. 903 (2001),
24. As Robert Post observes, "[w]hat we have a right to expect from doctrine is that it force[s] us to confront and clarify the constitutional values that matter to us." Robert Post, Subsidized Speech, 106 YALE L.J. 151, 195 (1996).
25. I first explored these problems in an earlier essay, where I argued that the government should have considerable latitude to protect its speech from misappropriation by private parties when it can demonstrate that it is literally speaking in a given context and that, absent preventive action, reasonable onlookers would mistakenly perceive the government as endorsing what are really the views of others. See Helen Norton, Not for Attribution: Government's Interest in Protecting the Integrity of Its Own Expression, 37 U.C. DAVIS L. REV. 1317, 1349-50 (2004). This Article expands and improves on that work in several ways. First, it engages social science insights about how a message's perceived source as governmental alters its effectiveness, thus identifying additional support for the government's interest in preserving the integrity of its own expression. Second, this Article more precisely articulates a framework for determining a message's private or governmental source, emphasizing the importance of establishing a message as governmental both formally and functionally, and drawing from relevant experience in other areas to learn how onlookers assess a message's source.
26. E.g., Shelly Chaiken & Durairaj Maheswaran, Heuristic Processing Can Bias Systematic Processing: Effects of Source Credibility, Argument Ambiguity, and Task Importance on Attitude Judgment, 66 J. PERSONALITY & SOC. PSYCHOL. 460, 470 (1994);
27. Carl I. Hovland & Walter Weiss, The Influence of Source Credibility on Communication Effectiveness, 15 PUB. OPINION Q. 635, 650 (Winter 1951-52);
28. Richard E. Petty et al., Central and Peripheral Routes to Advertising Effectiveness: The Moderating Role of Involvement, 10 J. CONSUMER RES. 135,143 (1983);
29. Elaine Walster et al., On Increasing the Persuasiveness of a Low Prestige Communicator, 2 J. EXPERIMENTAL SOC. PSYCHOL. 325, 325-26 (1966).
30. See June Fessenden-Raden et al., Providing Risk Information in Communities: Factors Influencing What Is Heard and Accepted, 12 SCI., TECH., & HUM. VALUES 94, 100 (1987);
31. Bradley S. Greenberg & Gerald R. Miller, The Effects of Low-Credible Sources on Message Acceptance, 33 SPEECH MONOGRAPHS 127, 135 (1966);
32. Homer H. Johnson & Richard R. Izzett, The Effects of Source Identification on Attitude Change as a Function of the Type of Communication, 86 J. SOC. PSYCHOL. 81, 85-87 (1972) (concluding that high-credibility sources were more likely to influence attitude change than low-credibility sources).
33. Walster et al., supra note 20, at 325;
34. see also Alice H. Eagly et al., Causal Inferences About Communicators and Their Effect on Opinion Change, 36 J. PERSONALITY & SOC. PSYCHOL. 424, 432 (1978);
35. Roobina Ohanian, The Impact of Celebrity Spokespersons' Perceived Image on Consumers' Intention to Purchase, J. ADVERTISING RES., Feb.-Mar. 1991, at 46, 46-47 (describing objectivity as a measure of a source's credibility, along with expertise, knowledge, and attractiveness).
36. See Danny Axsom et al., Audience Response as a Heuristic Cue in Persuasion, 53 J. PERSONALITY & SOC. PSYCHOL. 30, 36-37 (1987);
37. Chaiken & Maheswaran, supra note 20, at 461;
38. Diana C. Mutz, Impersonal Influence: Effects of Representations of Public Opinion on Political Attitudes, 14 POL. BEHAV. 89, 96-100, 111 (1992) (describing studies concluding that, for some onlookers, "public opinion simply serves as a cue indicating the most intelligent choice to make").
39. Reliance on such heuristics is not, however, inevitable. Onlookers with the motivation and the ability to expend the necessary cognitive resources on a particular matter are less likely to rely on source cues or other mental shortcuts and more likely to evaluate a message's substantive content for themselves. Jeffery J. Mondak, Source Cues and Policy Approval: The Cognitive Dynamics of Public Support for the Reagan Agenda, 37 AM. J. POL. SCI. 186, 188 (1993) [hereinafter Mondak, Source Cues].
40. Dan M. Kahan & Donald Bratnan, Cultural Cognition and Public Policy, 24 YALE L. & POL'Y REV. 149, 151 (2006);
41. see also Jeffery J. Mondak, Public Opinion and Heuristic Processing of Source Cues, 15 POL. BEHAV. 167, 170 (1993) [hereinafter Mondak, Public Opinion];
42. John Gastil et al., Ending Polarization: The Good News About the Culture Wars, BOSTON REV., Mar.-Apr. 2006, at 19 ("Unable to work through the details of a complex issue (such as global warming), most citizens can easily figure out where they should stand by referencing cultural authorities - Ted Kennedy or Rush Limbaugh, The New York Times or Fox News - and aligning themselves accordingly.").
43. See Derek E. Bambauer, Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas, 77 U. COLO. L. REV. 649, 649-51 (2006).
44. See Thomas D. Elias, Adopt-a-Highway Project Cleans Up, HOUS. CHRON., Mar. 1, 1992, at A8 ("The manager of a Los Angeles McDonald's whose golden arches adorn a sign along a nearby freeway says, 'You can't beat the advertising. There must be 120,000 cars a day going by that sign.'").
45. See KATHLEEN KELLEY REARDON, PERSUASION IN PRACTICE 106 (1991).
46. But see Carolyn Tripp et al., The Effects of Multiple Product Endorsements by Celebrities in Consumers' Attitudes and Intentions, 20 J. CONSUMER RES. 535, 536, 544-45 (1994) (commenting that while increased exposure may initially result in a more favorable response, higher numbers of exposure may eventually trigger negative responses, perhaps due to tedium).
47. See REARDON, supra note 28, at 169 ("[W]hen people are opposed to a certain perspective and realize that they may be required to make some statement, they will create counterarguments. What of media participants, who know that they will not be required to respond in any overt manner? They are uncritical participants. Thus they are vulnerable to persuasion.").
48. Mondak, Source Cues, supra note 24, at 193.
49. See Fessenden-Raden et al., supra note 21, at 96 (finding that the trust people have in political institutions varies, as does their trust in the information provided by such governments);
50. Mondak, Public Opinion, supra note 25, at 171 ("The direction and magnitude of influence source cues exert on an individual's judgments should vary as a function of the citizen's opinion regarding the expertise or credibility of the political leader in question.... Therefore, a source effect can be either positive or negative, with the effect's magnitude dependent on the strength of that approval or disapproval.").
51. Lee, supra note 8, at 1009;
52. Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 1017 (1995).
53. Lessig, supra note 32, at 1017-18.
54. Id.
55. Id.;
56. see also Ann Bartow, Trademarks of Privilege: Naming Rights and the Physical Public Domain, 40 U.C. DAVIS L. REV. 919, 932-33 (2007), stating: Because a naming gesture imputes social meaning to the physical public domain, acts of visible branding can infuse a public facility with strong associative values that affect public perceptions and permeate the collective public conscience. For example, both residents and outsiders are likely to view a community in which a public school is named for Robert E. Lee very differently from a community in which a public school is named for Martin Luther King, Jr.
57. Lessig, supra note 32, at 1009.
58. Id.
59. Lee, supra note 8, at 985-89.
60. Id. at 990 ("The government, in other words, may make its views appear to be held by more esteemed or authoritative sources than they necessarily are, and more widely accepted than they really are.").
61. Id. at 1039.
62. See Paul Horwitz, Free Speech as Risk Analysis: Heuristics, Biases, and Institutions in the First Amendment, 76 TEMP. L. REV. 1, 6 (2003);
63. Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. REV. 1107, 1108 (2006) ("In many circumstances the First Amendment is no bar to government measures condemning deceptions by statement or concealment, whether government or private parties are the deceivers or the deceived.").
64. See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 592 (1980) (Rehnquist, J., dissenting). For these reasons, a number of commentators thus urge that we discard a libertarian approach to First Amendment interpretation.
65. See Bambauer, supra note 26, at 696-703;
66. Horwitz, supra note 41, at 6.
67. See, e.g., Cent. Hudson Gas & Elec. Corp., 447 U.S. at 563-64.
68. Note that such misperceptions not only skew public debate but may also frustrate individual autonomy interests. See Varat, supra note 41, at 1110.
69. See, e.g., Tamara R. Piety, Against Freedom of Commercial Expression, 29 CARDOZO L. REV. (forthcoming 2008) (manuscript at 14-16, available at http://ssrn.com/abstract=1031733) (describing efforts of tobacco companies, Wal-Mart, and other commercial entities to build support for their products by manufacturing perceived third-party endorsements).
70. Wells v. City & County of Denver, 257 F.3d 1132, 1140 (10th Cir. 2001).
71. Sons of Confederate Veterans, Inc. v. Comm'r of the Va. Dep't of Motor Vehicles, 288 F.3d 610, 618 (4th Cir. 2002);
72. see also Wells, 257 F.3d at 1140-41. Not all lower courts apply the four-factor test.
73. See, e.g., Chiras v. Miller, 432 F.3d 606, 618 (5th Cir. 2005).
74. 544 U.S. 550 (2005).
75. See Ariz. Life Coal. v. Stanton, No. 05-16971, 2008 WL 217012, at *4-5 (9th Cir. Jan. 28, 2008);
76. ACLU v. Bredesen, 441 F.3d 370, 375, 380 (6th Cir. 2006);
77. Page v. Lexington County Sch. Dist. One, No. 3:06-249-CMC, 2007 WL 162178, at *23 n.23 (D.S.C. Jan. 17, 2007).
78. Johanns, 544 U.S. at 562.
79. See, e.g., Sons of Confederate Veterans, 288 F.3d at 618, en banc reh'g denied, 305 F.3d 241, 245 (4th Cir. 2002) (Luttig, J., respecting the denial of rehearing en banc).
80. See Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 120 (1998).
81. Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1384 (2001).
82. Leslie Gielow Jacobs, Who's Talking? Disentangling Government and Private Speech, 36 U. MICH. J.L. REFORM 35, 57, 61 (2002). In addition to accountability measures, Professor Jacobs's proposed framework also includes attention to whether the government delivers an "identifiable and constitutionally valid message" with "non-speech-suppressing impact." Id. at 113.
83. Lee, supra note 8, at 1052.
84. For an example of expression that may satisfy the requirement of formal, but not functional, government authorship, see infra notes 66, 145, 215 and accompanying text (discussing Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005)).
85. For an example of expression that may satisfy the requirement of functional, but not formal, government authorship, see infra note 110 (discussing Brown v. Cal. Dep't. of Transp., 321 F.3d 1217 (9th Cir. 2003)).
86. Note, too, that speech that satisfies this test will almost certainly satisfy lower courts' four-factor test, which attempts less directly - and in a way less clearly grounded in the theoretical foundations of government speech - to capture some of the same concerns. Similarly, although the Supreme Court has yet to articulate a definitive test for government speech, expression that satisfies my proposed requirements of formal and functional transparency more than satisfies the Court's Johanns factors - which, as described in more detail below, do not require any showing of functional transparency. See infra notes 212-16 and accompanying text.
87. See, e.g., Greene, supra note 8, at 37-38.
88. See, e.g., Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 598 n.3 (1997) (Scalia, J., concurring);
89. Greer v. Spock, 424 U.S. 828, 845-47 (1975) (Powell, J., concurring) (suggesting that the military's actual or perceived endorsement of political candidates would offend Article II, Section 2 and its guarantee of civilian control of the military);
90. MARK G. YUDOF, WHEN GOVERNMENT SPEAKS 170, 302 (1983);
91. Edward H. Ziegler, Jr., Government Speech and the Constitution: The Limits of Official Partisanship, 21 B.C.L. REV. 578, 586-98, 605 n. 169 (1980).
92. See YUDOF, supra note 59, at 44 (arguing that government does not possess First Amendment free speech rights);
93. Bezanson & Buss, supra note 53, at 1501-08 (same).
94. For an argument that state governments may be First Amendment rights-holders, see David Fagundes, State Actors as First Amendment Speakers, 100 NW. U. L. REV. 1637, 1638-47 (2006).
95. Note also the Court has suggested that certain institutions with unique communicative functions - such as universities or broadcasters - may have First Amendment interests regardless of their public or private character.
96. See, e.g., Keyishian v. Bd. of Regents of the Univ. of N.Y., 385 U.S. 589, 603 (1967);
97. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 673 (1998).
98. But see United States v. Am. Library Ass'n, 539 U.S. 194, 210-11 (2003) (declining to decide whether government entities have First Amendment rights).
99. See, e.g., 5 U.S.C. §§ 7323-7324 (2000) (prohibiting use of official authority to affect election results and barring use of government property or facilities for partisan activities);
100. ARK. CODE ANN. § 12-8-205(b)(2) (2003) (prohibiting state police from displaying political banners, posters, or literature on state government offices, facilities, or other buildings);
101. ARK. CODE ANN. § 12-8-205(b)(3) (2003) (prohibiting state police vehicles from displaying any political bumper stickers or decals and prohibiting their use to promote or assist any political campaign).
102. My contention that government should remain free to deny private speakers the opportunity to speak in a setting that mistakenly conveys the government's endorsement may also be unattractive to those who ascribe to "the more speech, the better" approach - i.e., those who identify the First Amendment's fundamental value as fostering private speakers' individual autonomy and maximizing opportunities for self-expression.
103. See, e.g., John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. CHI. L. REV. 49, 51-52 (1996). But scholars have long disagreed over whether any single core value animates the First Amendment.
104. See, e.g., Ronald A. Cass, The Perils of Positive Thinking: Constitutional Interpretation and Negative First Amendment Theory, 34 UCLA L. REV. 1405, 1411 (1987) ("Most theoretical writings have suggested variants of four different values as critical to speech protection: individual development, democratic government, social stability, and truth." (citations omitted));
105. Thomas I. Emerson, First Amendment Doctrine and the Burger Court, 68 CAL. L. REV. 422, 423 (1980). I join those who contend that the First Amendment principally furthers the collective instrumental value of facilitating democratic self-governance through public debate.
106. See, e.g., STEPHEN BREYER, ACTIVE LIBERTY 39 (2005);
107. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245, 256;
108. Robert Post, Compelled Subsidization of Speech: Johanns v. Livestock Marketing Association, 2005 SUP. CT. REV. 195, 213;
109. Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV. 255, 263 (1992).
110. The "ultimate responsibility," "program purpose," and "editorial control" elements of the four-factor test - along with the considerations mentioned in Johanns - for identifying government speech might be seen as courts' attempts to capture this notion of government's affirmative claim of ownership of a particular communication.
111. See supra note 50 and accompanying text.
112. Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885, 897 (2006).
113. See Bezanson & Buss, supra note 53, at 1510.
114. 544 U.S. 550, 562 (2005).
115. Id. at 553.
116. See Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1005 (9th Cir. 2000).
117. See Page v. Lexington County Sch. Dist. One, No. 3:06-249-CMC, 2007 WL 2123784, at *1 (D.S.C. July 20, 2007).
118. Mark Yudof describes one such situation: For example, there is nothing constitutionally amiss about a university placing the editorial functions of a college newspaper entirely in the hands of the faculty or the central administration. The university could reserve editorial control over the editorial page but not over the news columns. Or it might delegate all editorial functions - over news, advertising, and the editorial page itself- to a student board of editors. YUDOF, supra note 59, at 243.
119. See, e.g., Mike Jaccarino & Karen Angel, 'Terrorist' Lauded at CUNY, N.Y. DAILY NEWS, Dec. 12, 2006, at 5 (describing a university's unwillingness to force students to change the controversial name of the building).
120. But see Editorial, CUNY Expels Killers, N.Y. DAILY NEWS, Dec. 13, 2006, at 39 (describing the university's later change in position, stating: "Only the CUNY board of trustees has the authority to name or rename school facilities").
121. For example, Denver's Metropolitan Football Stadium District, a public entity overseeing construction of the new Denver Broncos' stadium, sold twenty-year naming rights to Invesco Funds Group, Inc. in 2001.
122. See Cindy Brovsky, Out With the New Stadium Name, In With the Old, DENVER POST, Aug. 8, 2001, at B1;
123. see also Joseph Blocher, School Naming Rights and the First Amendment's Perfect Storm, 96 GEO. L.J. 1, 1 (2007);
124. 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, 333 (2003).
125. Indeed, the lease agreements for most stadiums grant the lessee (i.e., a professional sports team) naming rights for the lease term.
126. See, e.g., Larry Fish, Stadium Approved, PHILADELPHIA INQUIRER, May 28, 2000, at A3.
127. See infra Part III.A.
128. The "literal speaker" and "ultimate responsibility" elements of lower courts' four-factor test for identifying government speech, described supra at note 47 and accompanying text, might be seen as courts' attempts to capture this notion of functional transparency.
129. Bezanson & Buss, supra note 53, at 1482-83.
130. See, e.g., Harris v. Forklift Sys. Inc., 510 U.S. 17, 20-21 (1993) (assessing hostile work environment claims based on a reasonable person standard);
131. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (holding that a person is "seized" for Fourth Amendment purposes when a reasonable person in the same situation would have believed she was not free to leave);
132. State v. Stewart, 763 P.2d 572, 577 (Kan. 1988) ("A person is justified in using force against an aggressor when ... he or she reasonably believes such force to be necessary.");
133. PROSSER AND KEETON ON THE LAW OF TORTS 175 (W. Page Keeton ed., 5th ed. 1984) (assessing negligence based on a reasonable person standard).
134. See infra notes 87, 120 and accompanying text.
135. See Bezanson & Buss, supra note 53, at 1482.
136. See, e.g., Mondak, Public Opinion, supra note 25, at 169-72.
137. See generally U.S. DEP'T OF HEALTH, EDUC., & WELFARE, supra note 9;
138. NAT'L ENERGY POLICY DEV. GROUP, NATIONAL ENERGY POLICY (2001). The "literal speaker" element of the four-part test for assessing government speech used by some lower courts may be seen as another way to capture this notion of express source cues.
139. See supra note 47 and accompanying text.
140. As one example of speech that expressly signaled its governmental source, consider the remarks of Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson. In a 2007 radio interview in his official capacity, Mr. Stimson expressed shock that lawyers at many top law firms represented Guantanamo detainees and urged their clients in the business community to switch to other firms. Pentagon Official Who Criticized Detainee Lawyers Quits, WASH. POST, Feb. 3, 2007, at A6. Mr. Stimson was identified by name and position, clearly revealing the expressed views as governmental in origin. His remarks generated considerable outrage in the form of protests by bar leaders, law school deans, and others in the legal community, and he ultimately resigned as a result of the political pressure, illustrating political accountability in action as a check on government speech.
141. See id.
142. See B. Jessie Hill, Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test, 104 MICH. L. REV. 491, 541-42 (2005) (proposing, in the Establishment Clause context, a rebuttable presumption against religious displays on government property absent a government showing that the message is "unequivocally secular and nonendorsing").
143. See supra note 24 and accompanying text.
144. Although little social science evidence to date addresses the question of how onlookers identify the source of a particular message when that source is unclear, researchers have examined other issues related to source attribution, such as individuals' later ability to recall the uncontested source of an idea accurately. See generally Ute J. Bayen et al., Source Discrimination, Item Detection, and Multinomial Models of Source Monitoring, 22 J. EXPERIMENTAL PSYCHOL. 197 (1996);
145. Gerald Echterhoff & Walter Hussy, Strategies of Source Attribution: Semantic Features and Trace Strength as Cues to the Origin of Memories, 63 SWISS J. PSYCH. 93 (2004);
146. Joshua D. Landau et al., Dissociation of Two Kinds of Source Attributions, 113 AM. J. PSYCH. 539 (2000);
147. Michel Tuan Pham & Gita Venkataramani Johar, Contingent Processes of Source Identification, 24 J. CONSUMER RES. 249 (1997).
148. See Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CAL. L. REV. 997, 1000 (2006);
149. Timothy Zick, Constitutional Empiricism: Quasi-Neutral Principles and Constitutional Truths, 82 N.C L. REV. 115, 118 (2003). Note, however, that this development is not without its critics.
150. See Zick, supra, at 221.
151. The limitations of these source cues also support the case for testing courts' assessments of sources through social science research. See Krieger & Fiske, supra note 85, at 1006-07 ("When subjected to empirical scrutiny, 'common sense' theories of how people perceive and judge themselves and others in their social environment often turn out to be wrong. Behavioral realism, understood as a prescriptive theory of judicial decisionmaking, addresses this problem by proposing that, before judges use lay or 'common sense' psychological theories in their legal analysis, they should take reasonable steps to ensure that those theories are valid.").
152. County of Allegheny v. ACLU, 492 U.S. 573, 594 (1989).
153. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring).
154. For a sampling of commentary critical of the Court's endorsement analysis, see, for example, Steven G. Gey, Religious Coercion and the Establishment Clause, 1994 U. ILL. L. REV. 463, 478-79;
155. Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 MICH. L. REV. 266, 267 (1987).
156. See, e.g., Adam M. Samaha, Endorsement Retires: From Religious Symbols to Anti-Sorting Principles, 2005 SUP. CT. REV. 135, 137 ("With the departure of Justice O'Connor - the author and most committed supporter of the endorsement notion - there is a good chance that the test will retire along with her.").
157. See, e.g., County of Allegheny, 492 U.S. at 601, 620 (holding that the government's decision to acknowledge Christmas through the display of a creche impermissibly endorsed a patently religious message, while its display of a menorah next to a Christmas tree endorsed only the holidays' secular aspects);
158. Lynch, 465 U.S. at 671, 685 (holding that the government's inclusion of a nativity scene in a display featuring a number of secular symbols of Christmas did not impermissibly endorse Christianity).
159. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1293 (2d ed. 1988);
160. Hill, supra note 82, at 518.
161. See, e.g., County of Allegheny, 492 U.S. at 599-600.
162. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 758-59 (1995). Eight of the Justices assumed that the cross sent a religious message, and focused on whether its display on government property signaled the government's endorsement of that message.
163. See id. at 760 (stating that the speech was religious);
164. id. at 761 (stating that the board rejected the display because it was religious and wanted to avoid endorsing a religion as required by the Establishment Clause);
165. id. at 797 (Stevens, J., dissenting) (agreeing with the majority that it was religious expression). Justice Thomas's concurrence, however, argued that the Klan's use of the cross was intended to convey a political, rather than a religious, message.
166. Id. at 770-71 (Thomas, J., concurring).
167. Id. at 757 (plurality opinion).
168. Id. at 763-70.
169. Id. at 768;
170. id. at 769 n.4 (noting that an observer might be "misled" by the presence of the cross in Capitol Square if any disclaimer were of insufficient size or if the observer failed to inquire whether the State had sponsored the cross);
171. id. at 776 (O'Connor, J., concurring) ("[C]ertain aspects of the cross display in this case arguably intimate government approval of respondents' private religious message - particularly that the cross is an especially potent sectarian symbol which stood unattended in close proximity to official government buildings.");
172. id. at 785 (Souter, J., concurring) ("[I]n some circumstances an intelligent observer may mistake private, unattended religious displays in a public forum for government speech endorsing religion.");
173. id. at 801 (Stevens, J., dissenting) ("[T]he location of a stationary, unattended sign generally is both a component of its message and an implicit endorsement of that message by the party with the power to decide whether it may be conveyed from that location.");
174. id. at 817-18 (Ginsburg, J., dissenting) ("Near the stationary cross were the government's flags and the government's statues. No human speaker was present to disassociate the religious symbol from the State. No other private display was in sight. No plainly visible sign informed the public that the cross belonged to the Klan and that Ohio's government did not endorse the display's message.").
175. Id. at 786 (Souter, J., concurring).
176. Id.
177. Id.
178. Id. at 802 (Stevens, J., dissenting).
179. Id.
180. Id.
181. 512 U.S. 43 (1994).
182. Id. at 56.
183. Id. at 54-57.
184. Recall, however, that a public entity remains free to decline to claim a building's naming as its own expression and instead to sell or otherwise cede that power to private parties, thus disavowing formal authorship and abandoning any regulation inconsistent with traditional First Amendment doctrine. See supra notes 71-72 and accompanying text. This practice, of course, may trigger concerns outside the First Amendment.
185. See Bartow, supra note 35, at 929 ("Naming practices are important because the names of public amenities communicate information about a community and its heritage.").
186. See, e.g., Griffin v. Dep't of Veteran Affairs, 274 F.3d 818, 818 (4th Cir. 2001) (upholding the federal government's refusal to fly a confederate flag over a Civil War cemetery), cert. denied, 537 U.S. 947 (2002);
187. NAACP v. Hunt, 891 F.2d 1555, 1564 (11th Cir. 1990) (upholding a state's decision to fly a confederate flag from its capital dome).
188. See, e.g., People for the Ethical Treatment of Animals, Inc. v. Gitten, 414 F.3d 23, 25-29 (D.C. Cir. 2005) ("If the authorities place a statue of Ulysses S. Grant in the park, the First Amendment does not require them also to install a statue of Robert E. Lee.");
189. Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045, 1049 (2d Cir. 1988).
190. But note that, while the government's decision to buy certain art for display on its own property constitutes its own expressive choice that can satisfy the tests for formal and functional governmental origin, sometimes the government funds art or other expression not to claim that speech as its own, but instead to encourage private expression. In National Endowment for the Arts v. Finley, for example, the Court rejected a facial First Amendment challenge to Congress's instructions that, in awarding NEA funding for the arts, '"artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.'" 524 U.S. 569, 572 (1998) (quoting 20 U.S.C. § 954(d)(1) (2000)).
191. Without characterizing the funding program either as government speech or as some type of forum for private expression, the Court concluded that the
192. The Court has, however, noted that content-based distinctions may be unavoidable in certain arts-related contexts, e.g., where the government makes aesthetic judgments when selecting projects to fund, id. at 585-86, or when a public library makes collection decisions, United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 205 (2003).
193. But while a message's location might help establish its source as a functional matter - i.e., in at least some contexts, onlookers may understand a display as reflecting the government's views because of its location on government property - to satisfy my proposed definition of government speech, the government must also establish the message's source as a formal matter by claiming the expression as its own at the time of its creation. This requirement not only maximizes opportunities for political accountability, but also checks the opportunistic invocation of the government speech defense to excuse regulation of what is really private speech on government property. Consider, for example, Brown v. California Department of Transportation, 321 F.3d 1217 (9th Cir. 2003).
194. There, the Ninth Circuit evaluated a First Amendment challenge to the State's decision to allow private individuals to post American flags, but not anti-war banners, on highway overpasses. The court rightly, in my view, rejected the state's government speech defense: "Here, the government neither hung the flag itself nor delegated that authority nor funded the project - private citizens spontaneously expressed their message of patriotism by hanging their flags." Id. at 1224.
195. By simply allowing some spontaneous private displays while removing others from its property, the state failed the requirement of formal transparency, thus squelching opportunities for accountability at the initial decision-making stage, and inviting suspicions of after-the-fact censorship. On the other hand, the state may freely exercise its own expressive interest in hanging its own flags or other displays from its overpasses or other property, so long as it makes clear that the expression is governmental in origin. In short, while it may not pick and choose among private speakers communicating a variety of messages on government property, the government may deliver its own message or even enlist third parties to deliver that message. See infra notes 207-09 and accompanying text. This distinction, while sometimes subtle, remains important because it recognizes the value of both government and private speech.
196. See supra note 97 and accompanying text.
197. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 781 (1995) (O'Connor, J., concurring).
198. Id. at 800 n.5 (Stevens, J., dissenting), stating: The ideal human Justice O'Connor describes knows and understands much more than meets the eye. Her "reasonable person" comes off as a well-schooled jurist, a being finer than the tort-law model. With respect, I think this enhanced tort-law standard is singularly out of place in the Establishment Clause context. It strips of constitutional protection every reasonable person whose knowledge happens to fall below some "ideal" standard.
199. See id. at 769 n.4 (plurality opinion);
200. id. at 776 (O'Connor, J., concurring) ("[A] disclaimer helps remove doubt about state approval of respondents' religious message.");
201. id. at 784 (Souter, J., concurring) ("I vote to affirm in large part because of the possibility of affixing a sign to the cross adequately disclaiming any government sponsorship or endorsement of it.");
202. id. at 817 (Ginsburg, J., dissenting) (emphasizing the lack of display informing "the public that the cross belonged to the Klan and that Ohio's government did not endorse the display's message"). In contrast, Justice Stevens argued that a message's location may trump even express signals as a source cue.
203. See id. at 806 (Stevens, J., dissenting) ("Even if the disclaimer at the foot of the cross (which stated that the cross was placed there by a private organization) were legible, that inference would remain, because a property owner's decision to allow a third party to place a sign on her property conveys the same message of endorsement as if she had erected it herself").
204. See supra Part I.
205. Ann Bartow, Likelihood of Confusion, 41 SAN DIEGO L. REV. 721, 725 (2004);
206. see also Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203, 205 (1942);
207. George Miaoulis & Nancy D'Amato, Consumer Confusion & Trademark Infringement, 42 J. MARKETING 48,48 (1978).
208. Bartow, supra note 116, at 744;
209. see also Barton Beebe, Search and Persuasion in Trademark Law, 103 MICH. L. REV. 2020, 2021 (2005).
210. Bartow, supra note 116, at 744.
211. Id.
212. 15 U.S.C. § 1114 (1)(a)(2000).
213. Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 CAL. L. REV. 1581, 1631 (2006) ("The purpose of the proximity factor is to consider whether the parties' goods are similar enough that a customer would assume they were offered by the same source...." (quotations and citations omitted)).
214. Michael H. Bierman & Jeffrey D. Wexler, Toward a Reformulation of the Test for Determining Trademark Infringement, 80 TRADEMARK REP. 1, 12-13 (1990).
215. Beebe, supra note 121 at 1589-90.
216. In addition to these five "core" factors, courts often also "consider a wide variety of additional factors." Id. at 1590.
217. Id. at 1645.
218. Id.
219. Id.
220. Id. at 1649.
221. See id. at 1582.
222. While some of the factors seem to have limited application outside of the trademark realm, others may facilitate our efforts to determine a message's private or governmental source as a functional matter.
223. See, e.g., Zippo Mfg. Co. v. Rogers Imps., Inc., 216 F. Supp. 670, 685 (S.D.N.Y. 1963).
224. But such direct evidence can be hard to find, either because consumers do not ever realize that they have been misled or because they are reluctant to admit it. Id. Professor Beebe, moreover, found that such survey evidence "is in practice of little importance" to courts' decisions.
225. Beebe, supra note 121, at 1622.
226. Shari Seidman Diamond & Andrew Koppelman, Measured Endorsement, 60 MD. L. REV. 713, 716 (2001).
227. Beebe, supra note 121, at 1626;
228. Bierman & Wexler, supra note 122, at 14.
229. Beebe, supra note 121, at 1628.
230. See Martin v. Vt. Agency of Transp. Dep't of Motor Vehicles, 819 A.2d 742, 757 n.7 (Vt. 2003) (Johnson, J., dissenting);
231. Katz v. Dep't of Motor Vehicles, 108 Cal. Rptr. 425, 426 (Cal. Ct. App. 1973).
232. See, e.g., Higgins v. Driver & Motor Vehicle Serv. Branch, 13 P.3d 531, 541 n.4 (Or. Ct. App. 2000) (Wollheim, J., concurring).
233. See Leslie Gielow Jacobs, Free Speech and the Limits of Legislative Discretion: The Example of Specialty License Plates, 53 FLA. L. REV. 419, 424-25 (2001).
234. In contrast, those courts that characterized contested expression as government speech either required no showing of functional transparency at all, relying only on what I have called formal transparency, see Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550 (2005), discussed in more detail infra notes 145, 212-216 and accompanying text;
235. Rust v. Sullivan, 500 U.S. 173 (1991), discussed infra notes 202-11 and accompanying text, or have relied primarily on more express cues, see Sons of Confederate Veterans, Inc. v. Comm'r of Va. Dep't of Motor Vehicles, 305 F.3d 241, 251 (4th Cir. 2002) (Niemeyer, J., dissenting from denial of rehearing en banc).
236. Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 798-99 (4th Cir. 2004);
237. see also ACLU v. Bredesen, 441 F.3d 370, 382, 383 n.6 (6th Cir. 2006) (Martin, J., dissenting), cert. denied sub nom., Hill v. Dixon, 548 U.S. 906 (2006).
238. Bredesen, 441 F.3d at 376.
239. A Peek at the 2007 Commemorative Stamps, WASH. POST, Nov. 28, 2006, at A17.
240. U.S. Postal Service, Citizens' Stamp Advisory Committee, http://www.usps.com/communications/organization/csac.htm (last visited Mar. 29, 2008) ("While the Postal Service relies heavily upon the Citizens' Stamp Advisory Committee for its advice, it has the exclusive and final authority to determine both subject matter and designs for U.S. postal stamps and postal stationery.").
241. See, e.g., Bredesen, 441 F.3d at 384 (Martin, J., dissenting).
242. See, e.g., Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 674 (1998) (observing that broadcasters by their very nature tend to "facilitate the expression of some viewpoints instead of others");
243. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 569-70 (1995).
244. See U.S. Postal Service, supra note 141;
245. A Peek at the 2007 Commemorative Stamps, supra note 140.
246. See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 562 (2005);
247. infra notes 212-16 and accompanying text.
248. In Johanns, the Court characterized as government speech a beef promotion campaign established by Congress and developed by the Secretary of Agriculture to advance the image and desirability of beef and beef products. Johanns, 544 U.S. at 561.
249. Congress and the Secretary provided the overarching message, but left development of the remaining details to an entity with members answerable to the Secretary, some of whom were also appointed by him. Id.
250. The fact that private speakers contributed to the expression - the advertising copy and promotional materials were designed by the nongovernmental Beef Board Operating Committee, only half of whose members were appointed by the Secretary - did not trouble the Court, because the government retained control over the ultimate message. Id. In this manner, the government established what I call formal authorship - it claimed the expression as its own when it created the program.
251. See supra notes 66-67 and accompanying text. But while the public's input did not strip the speech of its governmental character, the promotions at issue in Johanns were not governmental as a functional matter because onlookers there had little chance of identifying the expression's actual source at the time of its delivery. Thus I quarrel with the Court's ultimate characterization of the promotions as government speech that should remain free from First Amendment scrutiny.
252. See infra notes 212-16 and accompanying text.
253. 228 F.3d 1003 (9th Cir. 2000).
254. Id. at 1005-06.
255. Id. at 1013.
256. See id.
257. Jacobs, supra note 136, at 421.
258. See id. at 426-27.
259. See, e.g., Sons of Confederate Veterans, Inc. v. Glendening, 954 F. Supp. 1099, 1100 (D. Md. 1997);
260. Ariz. Life Coal, Inc. v. Stanton, No. 05-16971, 2008 WL 217012, at *1 (9th Cir. Jan. 28, 2008).
261. See supra note 72 and accompanying text.
262. See, e.g., Glendening, 954 F. Supp. at 1103.
263. See, e.g., Perry v. McDonald, 280 F.3d 159, 169 (2d Cir. 2001) (characterizing a vanity plate program as a nonpublic forum for private speech);
264. Pruitt v. Wilder, 840 F. Supp. 414, 417 & n.2 (E.D. Va. 1994) (assuming, without holding, that specialty plates are a non-public forum).
265. But see Higgins v. Driver & Motor Vehicle Servs. Branch, 13 P.3d 531, 534 (Or. Ct. App. 2000) (characterizing vanity plates as the state's own expression).
266. See Annie Gowen, A Tiny Canvas for Holiday Mirth: Personal Postage Is Giving Letter Traffic a Boost, WASH. POST, Dec. 23, 2006, at B1.
267. See infra notes 198-201 and accompanying text.
268. See David Montgomery, Mayor Signs Order for D.C. Democracy Plates, WASH. POST, Aug. 17, 2000, at B3.
269. See Wooley v. Maynard, 430 U.S. 705, 707 (1977).
270. Planned Parenthood of S.C. v. Rose, 361 F.3d 786, 793 (4th Cir. 2004);
271. see also Choose Life Ill., Inc. v. White, No. 04-C-4316, 2007 WL 178455, at *4-5 (N.D. Ill. Jan. 10, 2007) (describing Illinois's practice of requiring the state legislature to approve proposed specialty plate messages).
272. Rose, 361 F.3d at 793.
273. See supra notes 80-86 and accompanying text. That the state manufactures and owns the plates further cues their source as governmental.
274. See, e.g., ACLU v. Bredesen, 441 F.3d 370, 377 (6th Cir. 2006);
275. Sons of Confederate Veterans, Inc. v. Comm'r of Va. Dep't of Motor Vehicles, 305 F.3d 241, 249-51 (4th Cir. 2002) (Niemeyer, J., dissenting from denial of rehearing en banc). The same functional analysis could, of course, apply not only to specialty plates (which involve choices about additional slogans or logos that appear on the license plate) but also to vanity plates (which involve choices about the vehicle-identifying numbers and letters depicted on the license plate). Both appear on a plate manufactured, owned, and issued by the government and include express cues to its governmental origin by clearly identifying the state. But, as discussed above, state governments have generally not claimed vanity plates as their own speech as a formal matter, instead treating them as space for sale, with any regulation subject to the limits of traditional First Amendment forum grounds.
276. Some might also seek to analogize specialty license plates to transit advertising - a form of private advertising on government property to which traditional First Amendment forum analysis applies - thus prohibiting the government's viewpoint-based (and sometimes content-based) regulation. See, e.g., United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg'l Transit Auth., 163 F.3d 341, 355 (6th Cir. 1998) (characterizing bus advertisements as designated public forums);
277. ACLU v. Mineta, 319 F. Supp. 2d 69, 81 (D.D.C. 2004) (characterizing bus and subway advertising as nonpublic forums). Indeed, vanity plates fit this description. But specialty license plates and transit advertising are distinguishable for at least two reasons. First, states increasingly claim the specialty plates - and not transit advertising - as their own speech at the time of the program's creation, thus establishing their formal authorship. Second, unlike advertising, the plates themselves expressly signal a governmental source as a functional matter, with the state's name prominently displayed. Advertisements, in contrast, generally expressly indicate their private source, regardless of their location. Consider advertising by Pepsi, Toyota, or Wal-Mart, as a few examples.
278. See Ellen P. Goodman, Stealth Marketing and Editorial Integrity, 85 TEX. L. REV. 83, 97 (2006).
279. See, e.g., Rose, 373 F.3d at 795-98. In his concurring opinion, Judge Luttig recognized the possibility of hybrid governmental and private speech, but suggested a balancing test: where private speech is "substantial and the government speech component less than compelling, viewpoint discrimination by the state is prohibited."
280. Id. at 800.
281. 319 U.S. 624 (1943).
282. Id. at 638.
283. Id. at 642.
284. Wooley v. Maynard, 430 U.S. 705, 717 (1977). 169 Id.
285. See Shiffrin, supra note 8, at 567.
286. Even if highway signs do reflect government speech, there remains the interesting question of whether the government's positive acknowledgment of an individual or group could be considered a government benefit triggering unconstitutional conditions analysis. I hope to address that issue in the future.
287. See Bartow, supra note 35, at 930.
288. Debbie Howlett, States, KKK Clash over Road Cleanup, USA TODAY, July 23, 1997, at 3A.
289. See, e.g., Knights of the Ku Klux Klan v. Ark. State Highway and Transp. Dep't, 807 F. Supp. 1427, 1438 (W.D. Ark. 1992) (concluding that the State had impermissibly excluded the Klan from a traditional public forum - highway rights-of-way - on the basis of viewpoint).
290. But see Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075, 1078 (5th Cir. 1995) (characterizing the Adopt-a-Highway program as a non-public forum, from which the Klan's exclusion from a specific highway was a reasonable and viewpoint-neutral effort to prevent its efforts to thwart court-ordered desegregation of a nearby housing project through repeated threats and acts of intimidation).
291. See, e.g., Cuffley v. Mickes, 208 F.3d 702, 708-12 (8th Cir. 2000);
292. cert. denied sub nom., Yarnell v. Cuffley, 532 U.S. 903 (2001).
293. Brief of Appellants at 16-17, Robb v. Hungerbeeler, 370 F.3d 735 (8th Cir. 2004) (No. 03-3547). Sign design and text vary considerably from state to state.
294. See, e.g., Adopt A Highway Maintenance Corporation, http://www.adoptahighway.com/markets.html (last visited Mar. 29, 2008).
295. Some signs make no reference to the state at all; some include a graphic outlining the state's shape while others expressly identify the state (e.g., "Keep New Hampshire Clean and Scenic"). Adopt A Highway Maintenance Corporation, New Hampshire, http://www.adoptahighway.com/markets-nh.html (last visited Mar. 29, 2008).
296. See Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367, 1374 (2003).
297. Kathleen Sullivan defines the unconstitutional conditions doctrine as requiring that "government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether." Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1415 (1989). Government actions will most likely run afoul of the unconstitutional conditions doctrine when they appear to target behavior unrelated to the government program.
298. See LOUIS MICHAEL SEIDMAN & MARK V. TUSHNET, REMNANTS OF BELIEF 79-80 (1996) (contrasting the government's refusal to fund abortions with the government's withdrawal of welfare or other benefits unrelated to family planning based on a woman's decision to have an abortion). Note that the Court's unconstitutional conditions doctrine remains the subject of considerable criticism.
299. See, e.g., Steven D. Hinckley, Your Money or Your Speech: The Children's Internet Protection Act and the Congressional Assault on the First Amendment in Public Libraries, 80 WASH. U. L.Q. 1025, 1070-71 (2002) (criticizing the Supreme Court's unconstitutional conditions analysis as result-oriented, often drawing "inexplicably fine distinctions");
300. Frederick Schauer, Principles, Institutions, and the First Amendment, 112 HARV. L. REV. 84, 102-03 (1998) (characterizing the doctrine of unconstitutional conditions as "decreasingly useful").
301. Even if the program does not satisfy the test for government speech, Bob Jones University v. United States might provide a separate justification in some cases for the government's exclusion of the Klan and other private parties engaging in racial discrimination. 461 U.S. 574, 584-85 (1983).
302. Bob Jones University involved the denial of a tax exemption to a religious school that engaged in race discrimination.
303. Id. at 579. Even though the denial burdened the school's free exercise of religion, the Court found that the burden satisfied strict scrutiny as necessary to the government's compelling interest in eradicating racial discrimination in education.
304. Id. at 604.
305. But Kenneth Karst also identified "the core of an argument the Court did not make in Bob Jones University" observing that: Denying tax exemptions to the University and the segregation academy unquestionably did communicate the government's disapproval of the free exercise claimants' religious views. By the same token, however, granting the exemptions would have its own communicative impact, placing the government's moral support behind Jim Crow education .... Neutrality was impossible in this zero-sum contest over group status. Whatever the government might do, its action would have expressive effects that imposed costs on constitutionally protected values - and expressive effects that conferred benefits, too. Kenneth L. Karst, Religious Freedom and Equal Citizenship: Reflections on Lukumi, 69 TUL. L. REV. 335, 370-71 (1994). Similarly, a state might argue that excluding the Klan or similarly racist groups from its Adopt-a-Highway program satisfies strict scrutiny as necessary to achieving its compelling interest in communicating its commitment to eradicating racial discrimination. That interest, however, may be seen as less compelling outside of the education context.
306. I took a different position in my earlier essay on this topic, where I concluded that Missouri's signs constituted government speech because of the significant risk that the public would perceive the signs as conveying the state's endorsement of the Klan. Norton, supra note 19, at 1346-47.
307. While that remains a real danger, since that time I have focused in much greater detail on the specific cues that may signal a message's governmental source. I now conclude that the demands of political accountability should require government entities to bear the burden in close cases of establishing authorship of its signs. Missouri's signs - at least as originally designed - fail this requirement as a functional matter, because they did not expressly signal a governmental source and because the available indirect cues sent mixed signals. Missouri's signs also failed the test for formal government authorship because it apparently did not claim the speech as its own at the time it created or revised its Adopt-a-Highway program.
308. See Robb v. Hungerbeeler, 370 F.3d 735, 744 (8th Cir. 2004);
309. Cuffley, 208 F.3d at 708-12.
310. See Thornburg, supra note 72, at 336-37 ("[T]he traditional method of naming collegiate athletic centers is in thanks for the benevolence of university alumni.").
311. Blocher, supra note 72, at 120-21.
312. 257 F.3d 1132 (10th Cir. 2001).
313. Id. at 1139-42. The Tenth Circuit separately addressed, and rejected, the plaintiffs Establishment Clause claims.
314. Id. at 1152-53.
315. Id. at 1137, 1140 n.4.
316. Id. at 1137.
317. Id. at 1141.
318. Id. at 1155 (Briscoe, J., dissenting).
319. See supra note 180 and accompanying text.
320. 203 F.3d 1085 (8th Cir. 2000).
321. Id. at 1087. The Klan sought to underwrite National Public Radio's "All Things Considered" because its local leader "enjoyed the program, wanted to support KWMU, and hoped to attract more highly educated people to his organization."
322. Id. at 1089.
323. Id. at 1089.
324. Id. at 1096.
325. The court also emphasized the station's institutional status as a communications enterprise engaging in expressive editorial choices. Id. at 1093.
326. Leslie Gielow Jacobs, for example, justifies public broadcasters' selection among potential sponsors as an expressive editorial decision, supported both by the program's structure and by the broadcasters' engagement in programming decisions. Jacobs, supra note 54, at 104-05.
327. Knights of the Ku Klux Klan, 203 F.3d at 1093.
328. See, e.g., Susan Kinzie, Exacting Donors Reshape College Giving, WASH. POST, Sept. 4, 2007, at A1 ("The new philanthropy is more like an investment than a gift .... It's a business transaction in a way it wasn't even a few years ago." (quoting Trinity University president Patricia McBride)).
329. See Karlyn Barker, Ad Rules Don't Apply for NFL Bash, WASH. POST, Sept. 4, 2003, at B1 (distinguishing advertising from "sponsor recognition");
330. Blocher, supra note 72, at 109 (noting that purchasers of school naming rights "usually describe the arrangements as 'contributions' motivated by a sense of community obligation and charity," while "[c]ritics counter that the deals are nothing more than paid advertising"). The government might avoid the choice altogether and abandon the program entirely. A Maryland county, for example, dropped its Adopt-a-Highway program after the Klan requested to participate. Tom Belton, Klan Bid To Join Adopt-a-Road Leads to Closing, BALT. SUN, Mar. 6, 1999, at 1A.
331. 342 F. Supp. 2d 474 (E.D. Va. 2004).
332. Id. at 476-77;
333. see also Kiesinger v. Mexico Acad. & Cent. Sch., 427 F. Supp. 2d 182, 184-86 (N.D.N. Y. 2006).
334. Demmon, 342 F. Supp. 2d. at 482-83.
335. Id. at 482.
336. 500 U.S. 173 (1991).
337. Id. at 177.
338. Id. at 180 (quoting 42 C.F.R. § 59.8(b)(5) (1989)). The regulations did not require that the government be identified as the message's source, although the majority observed that "[n]othing in [the Title X regulations] requires a doctor to represent as his own any opinion that he does not in fact hold."
339. Id. at 200.
340. Id. at 194.
341. Id. at 198-99.
342. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001).
343. Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006).
344. See id. As I plan to develop more fully in another article, however, I believe that the Garcetti Court was too quick to attribute employees' on-duty speech to the government, overstating government's expressive interests while undermining the public interest in transparently governmental speech.
345. Rust, 500 U.S. at 180.
346. See, e.g., Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1394-96 (2001) (arguing that patients could mistakenly attribute the government's views to their doctors);
347. Post, supra note 18, at 172-75 (same).
348. 544 U.S. 550 (2005).
349. Id. at 550.
350. See id. at 574 (Souter, J., dissenting).
351. Id. at 563-64.
352. Id. at 578-79.
353. Not only should the lack of functional transparency defeat the government's assertion of the government speech defense to First Amendment challenges, but, in some circumstances, the government's failure to disclose its role in authoring promotional materials may violate statutory anti-propaganda prohibitions. See, e.g., Letter from General Accounting Office to Senators Frank R. Lautenberg and Edward M. Kennedy (Sept. 30, 2005) (concluding that the Department of Education's contract with columnist Armstrong Williams to produce op-eds supporting the Administration's "No Child Left Behind" initiative, without assuring that the Department's role was disclosed to the target audience, violated statutory prohibition on use of appropriations for "publicity or propaganda").
354. 384 F.3d 1126 (9th Cir. 2004).
355. Id. at 1130.
356. See Fenster, supra note 64, at 928;
357. Domi Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 GEO. L.J. 897, 911-14 (2005).