The First Amendment and Government Property: Free Speech Rules (Episode 8)

The First Amendment and Government Property: Free Speech Rules (Episode 8)


Say the government is handing out money, or access to government property or some other benefit. Can it exclude certain kinds of speech or certain kinds of speakers? It’s complicated. But here are the five rules of the First Amendment and government property. Rule one. A few forms of government property are treated as so-called traditional public forums. There the government generally can’t exclude speech based on its content. The classic examples are sidewalks and parks, as well as streets used for parades. And less speech falls within one of the narrow First Amendment exceptions such as your threats of crime, or face-to-face insults that tend to provoke a fight, the government can’t restrict it. Such places are technically government property but that gives the government no extra authority to control such speech. The postal system is analogous. At least since the 1940s the Supreme Court has held that the government can’t exclude certain kinds of content from the mail. To quote Justice Holmes in an early case, “the United States may give up the post office when it sees fit, but while it carries it on, the use of the mails is almost as much a part of free speech as the right to use our tongues. Rule two. Sometimes the government deliberately opens up property or funds in order to promote a wide diversity of private speech using objective criteria. Many public schools for instance let student groups use classrooms that weren’t otherwise being used. Public libraries often offer rooms for meetings of community groups. Public universities might offer free email accounts or web hosting to all students and sometimes public universities offer money to student groups to publish newspapers or invite speakers. These are so-called limited public forums and the government can limit them to particular speakers, for instance just students, or to particular kinds of speech. For instance, just speech related to the university curriculum. It can also have reasonable viewpoint-neutral exclusions. For instance saying that certain benefits or property can’t be used for promoting or opposing candidates into public office. But it can’t impose viewpoint-based criteria. It can’t for instance let all groups use a meeting room in a library but exclude racist groups. Rule three. A lot of government property is open to the public but not for speech. Airports for instance are set up to promote transportation, not speaking. But people there will wear t-shirts with messages on them, talk to friends, maybe even approach strangers with belief lights in these so-called non-public forums. The rule is much like in limited public forums speech restrictions are allowed but must be reasonable, and viewpoint-neutral. Rule four. Some government property is set up for the government itself to speak. And there the government can pick and choose what viewpoints it conveys or endorses. The walls of most public buildings are an example the government can choose what art to put up there, and it might refuse to display art that conveys ideas that it dislikes. Likewise, when the government spends money to promote its own messages, it doesn’t have to promote rival messages. It can have a National Endowment for democracy without having to fund a National Endowment for communism. It can put out ads supporting racial equality without paying for ads supporting racism. Sometimes there are close cases. For instance when Texas authorized many kinds of license plate designs, but excluded Confederate flag designs the court split 5 to 4. The majority thought license plate designs were government speech and the government could pick and choose which ones to allow. Even when the government accepted dozens of designs requested by private groups, the dissent thought they were limited in public forum in which viewpoint discrimination was forbidden because the government was supporting so many different and often contradictory forms of speech. But while there were close cases, many are pretty clear. The government often clearly promotes views it shows itself and sometimes clearly promotes a wide range of private views. Rule five. Similar principles likely applied to government benefit programs and not just a provision of real estate or money. Charitable tax exemptions for instance are likely a form of limited public forum. The government can discriminate based on content. You can’t use tax-deductible donations to support or oppose candidates for office, but not based on a viewpoint. Likewise when the Supreme Court held that the government can’t deny full trademark protection to trademarks that are seen as disparaging, scandalous, immoral, or racist. Such restrictions the court said were impermissibly viewpoint based. Of course private property owners aren’t bound by the First Amendment whether they’re distributing money or access to real estate. And as we see the government as property owner isn’t bound by the First Amendment quite the same as it is when deciding whether to jail people or find them for their speech. But except when it comes to the government’s own speech viewpoint discrimination is generally forbidden even on government property. So to sum up, the government generally can’t exclude speech based on its content in traditional public forums. The government can deliberately open up limited public forums that are restricted to particular speakers or kinds of speech but it can’t impose a viewpoint-based criteria. In non-public forums speech restrictions are allowed but must be reasonable and viewpoint-neutral. For government property set up for the government itself to speak, the government can pick and choose what viewpoints it conveys or endorses, similar principles likely apply to government benefit programs and not just the use of physical property. This is not legal advice if this were legal advice it would be followed by a bill. Please use responsibly. Written by Eugene Volokh who is an actual real-life First Amendment law professor at UCLA. I’m Eugene Volokh and I approve this message.

36 Comments on "The First Amendment and Government Property: Free Speech Rules (Episode 8)"


  1. Sell all government property to pay off debt……….. and nothing else. Capital punishment for those voting for voting for debt….

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  2. WRONG…
    INSULTS ARE FREE SPEECH FOR BOTH SIDES, NOT JUST THE GLOBALIST DEMONCRAT COMMIES…

    If The Commie Pukes Can Burn The America Flag Then Oatriots Can Fly Confederate Battle Flags…

    Spread Truth And Reality Worldwide Immediately …

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  3. I’d love to see a reason video that talks about a citizen’s right to video record interactions with government employees and officials.

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  4. Great presentation. This is the first video I've watched in the series and it was top notch. Props to everyone involved in making it.

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  5. Only maters if you think the government has any power over you. This is why every government is immoral and evil.
    The Constitution limited government and now the government through that in the trash and set up a dictatorship that makes thousands of rules they you have to follow. Wake up people you are slaves to the system.

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  6. I believe Anarcho-Capitalism is the appropriate social/economic/political system for human beings, because it is the only one fully congruent with the principle of Self-Ownership – The idea that every man is the only rightful owner of his life, body and the sweat of his brow.

    Change my mind.

    Ps. I don't answer to trolling and offensive comments – Only interested in serious and honest conversation. Thank you!

    Reply

  7. Calls to acts of violence, hate speech, etc, should not be exceptions to free speech. Government should be limited as much and as often as possible. People should always try to have and maintain free market alternatives to government funded roads, police, schools, fire, national parks, government property, etc. I promote private property over federal property, as much as possible. I promote as much first, second, and fourth amendment rights as possible.

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  8. Insults are NOT EXEMPT from 1A. That is fake news. Some States outlaw it, but those laws are illegal.

    If someone is such a violent animal that they will become violent due to words, they need to be put down like rabid dogs.

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  9. But whether the CONstituion be one thing or another; this much is certain. It has either authorized such a government as we have had. Or it has been powerless to prevent it.

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  10. background music was a little too loud relative to the narrator's voice. But thank you for posting this video.

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  11. The problem with which we are now faced is multinational corporations who are in bed with government who censor or interfere with speech or commerce based on their political ideology. For example, a large bank which suddenly announces that it will not allow privately held credit or funds to be used through their merchant services to lawfully acquire or sell firearms. Or Google/YouTube deciding on a range of actions from "demonetizing" popular content producers, even though they rake in advertising money on those same channels, OR destroying the channel and all of its contents. This is Big Corporate behaving as government, when they interfere with lawful activities at the same time as using false legal classifications (i.e. platform vs publisher) as a shield against liability.

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  12. Face to face insults that can cause a fight?? Uh no. Insults are protected under 1st amendment.its called " calls to violence" and that isn't protected

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  13. It is cute how you have organized a bunch of arbitrary decisions into a coherent theory that may or may not have impact on future arbitrary decisions.

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  14. None of this matters. Free Speech does NOT exist if it doesnt exist on the internet, and the "private companies" (publicly traded monopolies) have already killed free speech. Wake Up Republicans

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  15. Democracy and Communism are not really rival ideas. You should have said they can can have a "National Endowment for Democracy" without also having a "National Endowment for the Divine Right of Kings."

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  16. It's funny how this idiot mentions the controversy around free speech and college platforms but makes no mention that most of the commotion was made because the speakers are rhetoricist of hate speech, which isn't free speech. Because he's either an illiterate fuckboy pleb or a fascist fuckboy propagandists. Either way, he's misleading his viewers by misrepresenting the information..

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  17. So the 1st amendment free speech rights only apply to sidewalks, parks and mail? – Everywhere else there seems to be a law or a rule restricting free speech. Does not look all that free…😕

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  18. The constitution is very clear the congress shall make no law abridging free speech. It does not state they get to pick and choose which speech is allowed and not allowed. Congress nor the government can not just make up rules for the amendments that exist. The amendments are rules from the people to the government, not the other way around.

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  19. Constitutionally, the government cannot be a property owner other than in the case of forts, ports, and Washington DC…

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  20. Also, if you're required to register something with the government, like your house or car, it probably is government property

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  21. Wait… what? The narrative moves way too quickly. Slow down. The background music is very distracting. My goal is to know more by the end of the video than I did at the start of the video. In this case, I am left more confused.

    Reply

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