BY PETER SCHEER–Does the first amendment apply to government speech? In recent decisions, the Supreme Court has answered that question in the negative. Constitutional free speech protections apply to people (and corporations and other private legal entities), but they do not limit or regulate governmental speech, the Court declared.
The implications of this doctrine are troublesome because the decision to label speech as governmental has the effect of immunizing the government from challenge under the first amendment. At the same time, however, the government speech doctrine could have the positive effect of limiting government misuse of anti-SLAPP statutes.
The Supreme Court’s latest pronouncement came in Walker v. Texas, a case involving Texas’ specialty license plate program, which allows individuals and organizations to request an image or slogan on their license plates. A nonprofit group, availing itself of the program, sought approval for a plate with a Confederate Battle flag. Texas said no, explaining the plate would be viewed as “offensive.” The nonprofit sued, arguing the denial of its request infringed first amendment rights.
This was not a trivial argument, legally speaking. A previous Supreme Court case, Wooley v. Maynard, had barred New Hampshire, on first amendment grounds, from putting the slogan, “Live free or die,” on all license plates. And the appeals court in the Walker case had ruled that Texas, in refusing to approve a specialty plate with a confederate flag, had engaged in content-based regulation of speech, in violation of the first amendment.
Nonetheless, the Supreme Court in the Walker case was able to avoid consideration of citizens’ free speech rights. How? By determining that, while the selection and display of messages (through words or imagery) on automobile license plates is, indeed, a form of speech, it is the government’s speech, not that of the nonprofit or its members. The determination that speech is governmental, in other words, results in added protection for the very government policy that is in dispute, while citizens’ first amendment claims are extinguished. This is troublesome.
But the “government speech” doctrine could be helpful in the interpretation of so-called anti-SLAPP laws.
Anti-SLAPP laws are state statutes designed to curb lawsuits filed primarily to silence critics who are engaged in constitutionally-protected advocacy. (SLAPP is an acronym for Strategic Lawsuit Against Public Participation). The paradigm is a suit by a large corporation filed against an individual—a blogger or community activist, for example– to silence criticism by forcing her to spend money to hire a lawyer and defend against dubious legal claims. Anti-SLAPP laws provide for a quick dismissal of such suits. They also punish those who file SLAPP suits by making them pay the opposing party’s legal fees.
In recent years, governments, as litigants, have discovered the advantages of anti-SLAPP laws, using them to win dismissal of citizen suits claiming violations of civil and constitutional rights. In a case now before the California Supreme Court, for example, a Cal State professor sued the university, alleging he was denied tenure due to discrimination based on national origin. (Park v. Board of Trustees). Cal State invoked the anti-SLAPP law, arguing that its tenure decision was the result of deliberations–that is, speech–protected by the first amendment. (And the Court of Appeal agreed, dismissing the suit).
Never mind that government reliance on anti-SLAPP remedies turns this legal mechanism on its head: A government agency’s advocacy is simply not vulnerable to being “chilled” in the way, say, a fledgling blogger could be intimidated by a suit filed by, say, a public utility stung by the blogger’s published criticism. Nonetheless, anti-SLAPP laws are written in broad language that state courts, including California’s courts, have consistently interpreted to protect government speech.
Now comes the US Supreme Court’s emerging “government speech” doctrine, stripping government speech of first amendment protection. How can this doctrine be squared with the application of anti-SLAPP laws to government speech? It can’t be. Anti-SLAPP protection is triggered by “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech . . .” (CA Civil Code § 425.16, subd. (b)(1)(emphasis added).) Government speech can no longer qualify as “in furtherance” of its “right of petition or free speech” since government speech, the US Supreme Court has made clear, does not implicate first amendment rights.
Anti-SLAPP laws are due for a mid-course correction that could come as soon as the California Supreme Court’s decision in the Park case. This will be a welcome development. Although the US Supreme Court’s government speech doctrine may do more harm than good in the first amendment arena, it should have the salutary effect of blocking government officials’ continued use–more precisely, misuse–of anti-SLAPP statutes.
Peter Scheer, a lawyer and journalist, is executive director of FAC. This commentary reflects his views only; it does not necessarily reflect the position of the FAC Board of Directors.