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Hastings Constitutional Law Quarterly

Authors

Mary Jean Dolan

Abstract

The public and private sectors partner in a growing number of projects with expressive dimensions, as governments follow marketing trends and also leverage their resources to produce cultural programs. This creates ever more complex First Amendment issues because such joint enterprises exist at the intersection of two overlapping, but contradictory, paradigms: the limited public forum and government speech. Under the limited public forum test, government ostensibly may set reasonable content limitations when it opens up property and programs to private speakers, so long as its selections are viewpoint neutral. There is no clear line between viewpoint and content, however, and courts frequently strike down program guidelines that are infused with government perspective. The government speech approach, in contrast, allows government to promote its own positions in an expressive project, through its selection of private speaker participants. Its contours and relation to forum analysis, however, are not well developed.

This Article addresses two conflicting lines of cases in an effort to create coherent, consistent guidelines. First, in contexts such as city-sponsored special events, decorative street light pole banners, and city web site Internet links, where government has broad, thematic goals and includes private participants, the government speech paradigm should apply. Current application of forum analysis is sometimes confusing and other times frustrates legitimate public policies. Second, this Article agrees with recent cases that government's selection and acknowledgment of sponsors should be deemed government speech. It goes further by proposing use of the endorsement test as a clear rationale for distinguishing this context from the classic limited public forum of transit advertising. These doctrinal clarifications will enhance the speech market overall: allowing governments the discretion to shape their own expressive projects will stimulate more such endeavors.

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