Government Identity Speech Programs – Understanding and Applying the New Walker Test
Pacific McGeorge School of Law Research Paper
56 Pages Posted: 13 Aug 2016 Last revised: 22 Jun 2017
Date Written: February 15, 2016
In Walker v. Texas Div., Sons of Confederate Veterans, Inc., the Supreme Court offered a three-pronged test as the tool for lower courts and government entities to use to determine whether a private speech access program creates government speech, which exempts speech selections from the minimum reasonableness and viewpoint neutrality requirements that limit the government’s administration of private speech forums. This Article is the first to engage in detailed analysis of the new Walker test to identify programs that use private speech submissions to create a government message of “image” or “identity.” While it would certainly be possible to point out its defects and ambiguities, criticism alone will not help the many entities that must understand and apply the new test to a wide range of government programs. This Article accepts the test as the tool that courts and others will use to reach results. Its purpose is to provide extensive analysis and concrete recommendations that will allow courts to apply the new test efficiently and consistently to the many different types of government/private speech interactions that will arise. This Article explains how the government identity speech and forum “tests” are best viewed as flip sides of the same basic inquiry, rather than as separate silos. It analyzes each of the prongs of the new identity speech test in depth to identify what each must mean to fulfill the constitutional principles that underpin government speech and private speech forums, and what evidence is relevant to each. The end result is a blueprint for legal analysis and policymaking at the very thin line between government use of private messages for identity speech and in private speech forums. In addition to offering a step-by-step analysis that segregates government identity speech programs from other types of government speech programs and private speech forums, this Article includes a detailed flowchart, which graphically portrays the decision points and relevant considerations. Finally, the Article demonstrates how the test applies to resolve the status of the two types of programs over which the lower courts have split – trademarks and vanity plates, and predicts its application to the range of government/private advertising and sponsorship programs, which exist at the border between private speech forums and government speech.
Keywords: Government speech, identity, Walker, forum, flowchart, vanity license plates, trademarks, transit advertising, sponsorship, first amendment, free speech, constitution
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