NEA v. Finley – gov’t speech v. forum analysis cont’d

1. NEA v. Finley – gov’t speech v. forum analysis cont’d • NFAHA allows the NEA to distribute grants to support the arts. • NEA must ensure that “artistic excellence and merit” are used to judge disbursements of grants, “taking into consideration general standards of decency and respect for the diverse values and beliefs of the American public.” • Four performance artists applied for grants. An advisory panel recommended approval. Ultimately the NEA denied the grants. • The artists challenged the denial, claiming that the “decency and respect” clause was viewpoint-based. • SCT upheld the clause partly on the basis that it was merely advisory and did not compel NEA to act on those considerations. Thus, avoided answering this question directly. • But still had to deal w/ some free speech issues.

2. NEA v. Finley, cont’d • Why doesn’t the provision of funds to a wide variety of eligible artists create a limited public forum as in Rosenberger? • Is the issue of “competitiveness” re grants exclusive of the existence of a forum? • Are “aesthetic” judgments exclusive of the existence of a forum? • What about taking into account “decency & respect”? • Does the government have a discernable message here if it is gov’t speech or is the analysis somehow different from Rust? • What limits are there on gov’t actions when acting in this context? • Does the “decency & respect” provision cause problems – i.e., does conditioning funds on such criteria violate the 1st Amendment?

3. Summum v. Pleasant Grove City • Followers of Summum wanted to place a monument with its “Seven Aphorisms” in city park similar to existing monument of Ten Commandments already donated by another private organization. • City denied Summum’s request because monument did not meet the city’s criteria for such displays: • Must “directly relate to the history of Pleasant Grove” or • Be “donated by groups with long-standing ties to the Pleasant Grove community.” • City interests – promote history, aesthetics & safety (crowding) • Summum claimed refusal to accept its monument was an unreasonable content-based exclusion from a public forum. • City argued (1) the monuments were a non-public forum, or (2) its decision to accept a monument turned the monument into government speech – in both situations content-based exclusions were acceptable.

4. Summum v. Pleasant Grove City – 10th Circuit decisions – what a mess! • Panel decision - “Permanent monuments in the city park” are relevant forum. Parks are a traditional public forum and exclusions are subject to content discrimination principles. • Exclusion of monument from traditional public forum based on the city’s criteria is CB (either SM or speaker). City has no compelling interest in promoting its history to the exclusion of other speech. Nor is the law narrowly drawn to meet the aesthetic and safety interests also posited (which might be compelling). • Lucero, J. dissenting from denial of en banc rehearing • Forum analysis is appropriate BUT parks aren’t always traditional public fora. • Maybe traditional fora for purposes of assembly/protests but for monuments/other permanent displays must ask whether gov’t intended to open forum for that mode of expression to all speakers. • McConnell, J. dissenting from denial of en banc rehearing • Monument donated by private person and displayed in public park is government speech – especially when park monuments weren’t opened to others for expressive purposes. • Government has effectively adopted private speech as its own by permanently installing the monument.

5. Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009) • Government’s decision to accept and display a privately donated monument is government speech. WHY? • Why is forum analysis inappropriate even though the monument sits in what is otherwise a traditional public forum? • Did the SCT get it right – either decision or reasoning?

6. License Plates – Gov’t Speech or Forum Analysis • State of Illinois recently recalled vanity plates of a family w/ their last name on it “Udink 1,” “Udink2” . . . because the license plates could be construed as saying something offensive – derogatory sexual and racial epithet • Authority to do this comes in state law allowing officials to “refuse any license plates bearing a combination of letters or numbers that . . . creates a connotation that is offensive to good taste and decency.” • The Udink family wants their license plates back – do they have a claim that the state has violated the 1A by removing/refusing their license plates? • Can the state claim the license plates are gov’t speech? • Discernable message? Gov’t as patron? Gov’t control/attribution? • What kind of forum? • Designated? Limited? Non-public? • What kind of exclusion – SM or VP?