Reading the oral arguments in Shurtleff v. Boston raised a concern that I’ve had for a long time. When deciding what flags to put up on a city flagpole, what images to use on a state license plate, or what monuments to install in a public park, the government is often picking and choosing among private speakers. But when the government is exercising this kind of editorial discretion, we don’t have a good doctrinal category to apply.
For private speakers, First Amendment doctrine recognizes editorial discretion as its own form of speech, distinct from that of the writer. Newspaper publishers don’t have to agree with each letter to the editor they print—it’s not their speech—but their choice of letters worth printing is their speech, and the government can’t mandate a right of reply. Books are the speech of the authors, not the bookstore owners; but the bookstore’s choice of books worth selling (even on the basis of viewpoint) is a form of speech too. And so on.
When it comes to government works, though, this sort of curation seems to fall through the doctrinal cracks. We have a well-known category for “government speech,” when the government is making its own statements with which it wholly agrees, even if those statements are first suggested to it by private parties. And we have various kinds of “public forum” categories (traditional, designated, limited, non-, …) when the government is hosting the speech of others, as to which it usually has to be viewpoint-neutral. But there doesn’t seem to be a good doctrinal label for when the government is acting as publisher but not writer, or as collector but not author, intentionally sifting through others’ speech for what it finds worth circulating.
For private speakers, we rarely have to decide whether “this is the writer’s speech” or “this is the editor’s speech,” as if it could only be one thing or the other. But for government speakers, courts often talk this way, because whose speech it is determines the doctrinal category that applies.
Of course, judges can still recognize editorial discretion when they see it. Sometimes they call it a form of government speech, as in Summum, the park-monument case—which came close to carving out a general exception to public-forum doctrine, but ultimately retreated to describing private monuments as “assistance” in “delivering a government-controlled message.” Or sometimes judges see curation as intrusions in a public forum, as in the case of bus advertisements—which Walker, the license-plate case, said were “traditionally available for private speech” and “bore no indicia that the speech was owned or conveyed by the government.” (Other than being on a government bus…)
And sometimes the judges try to squeeze editorial discretion into their existing categories, with limited success. In Forbes, the public-television political-debate case, the Court recognized a public institution’s right to select among speakers for a lecture series, in almost precisely these terms. But it still required viewpoint-neutrality of a public TV channel planning a candidates’ debate—in part because of the broadcaster’s “implicit representation … that the views expressed were those of the candidates, not its own.” Of course that representation is also made for visiting lecturers, guests on a talk show, and so on—all of whom the Court thought the government could select on viewpoint-related grounds. (And the Court’s worries would hardly have been assuaged by an explicit disclaimer, say that “these are the only candidates we think are worth hearing from.” If a government billboard reading “Vote for Jones” would raise First Amendment problems, that can’t be because it falls outside the government-speech doctrine!) Here the “government speech” label tends to mask the distinctions that are actually at issue: courts give too much attention to whether the views visibly belong to the government, and not enough to whether they’re visibly subject to government curation.
Obviously this kind of editing would be unacceptable as applied to speech at large: having private works “edited” by the government is just censorship. And one can dispute whether any given area (e.g., protecting registered trademarks[[https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf]] from private competitors) would extend government curation into fields already reserved for private speech. In lots of ways, this is what judges and lawyers are already arguing about in the government-speech/public-forum cases: my claim is only that the case law would make more sense if it spoke directly in these terms. We can still debate whether license plates are more like the postcards sold at a government-run highway rest stop or more like privately purchased bumper stickers—”little mobile billboards on which motorists can display their own messages,” per the dissent in Walker, without any general expectation of official review. And we can also debate whether flying flags on a city flagpole is more like flying flags in one’s own backyard or more like an official endorsement of private statements (a form of constituent service, like having the Mayor march in a private group’s parade) such that the city can pick and choose even on viewpoint grounds. But we might be better off doing so in the language of curation and editorial discretion, rather than in more hard-edged categories of government speech or public fora.
I don’t yet have a full first-principles theory of the First Amendment, so I’m not yet sure how the cases should come out. But the existing doctrine seems to have an editorial-discretion-shaped hole in it, and it probably shouldn’t.
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