07.12.17 – Creating a Flag Policy

In today’s Buzz, I’ll be sharing one of the first Local Gov projects assigned to me: creating a flag policy.  It seems pretty straightforward, right?  Well, it is—sort of.


Right Now with Daniel Soto (LinkedIn/Twitter)

What I’m Listening to – Old Dominion – Snapback (it’s on the #ELGL Summer Playlist on Spotify)

What I’m ReadingEl Llano en Llamas by Juan Rulfo

What I’m Doing – Getting ready for the Santa Ana Media Summit, a day-long gathering of PR folks to build communications capacity. The event is intended to meaningfully build media empowerment and affect our ability to access, produce and interact more with local media.


 What Would You Do? Case Studies about Real World Challenges


To give some background information, I should let you know that I’m currently a Management Intern / Management Aide with the City of Santa Ana, CA in the City Manager’s Office.  I’ve been in my current role since August 2015 and my internship has been extended four times!  Very recently (about a week ago, actually), I was temporarily assigned to the position of Management Aide, an entry-level analyst position.  I work on a slew of assignments, both administrative and analytical in nature: budgeting, drafting resolutions and ordinances, managing contracts, planning, organizing, and executing community events on behalf of our Mayor and City Council, and more.

Now that I’ve got my introduction out of the way, let’s jump into my project: creating a flag policy.  Back in September 2015, our City Council directed staff to display the Pride Flag in front of City Hall in recognition of Pride Month.  This decision was a difficult one, considering that Santa Ana is located in the most conservative county in Southern California: Orange County.  Moreover, the City Council’s decision wasn’t a unanimous one.  There were various concerns raised by our different Councilmembers, including issues surrounding not having an existing flag policy.  My former supervisor assigned me the task of creating a policy that would address the City Council’s concerns, while providing guidance on the display of flags, including the Pride Flag.  I was directed to work with my City Attorney (she’s awesome, by the way), who recommended that I look into case law relating to municipal sign policies.  From there, I used Thompson Reuters Westlaw, a legal research database, to understand the law behind these types of policies.  I also conducted one-to-one interviews and held a focus group with community members to gauge the public’s perception of how the implementation of a flag policy would impact the community.  Below are my findings.

OPTIONS

It turns out that the City of Santa Ana, by direction of the City Council, may decide to use existing flag poles at City Hall to display commemorative flags, either as an expression of its own speech (government speech), or by creating a designated public forum for use by the public.  Government organizations, including municipal corporations, may express themselves freely without requiring viewpoint neutrality when Government itself if the speaker.  In contrast, designated public forums have the same First Amendment protections as traditional public forums do, where speech, including fighting words, hate speech, and inflammatory speech, are protected forms of speech–meaning that the City would not be able to censor this type of speech.  A designated public forum may produce unfavorable outcomes for the City, articulated in the City Council’s concern of “opening a Pandora’s box” where individuals, organizations, and other entities may request to use the City’s flagpoles as a forum for public discourse.  In the case of using the flagpoles as a designated public forum, the City would not be able to restrict the content expressed on the City’s flagpoles.

In adopting a flag policy, the City Council may choose one of the following options:

  1. Adopt a resolution and policy, pursuant to the United States Flag code (4 U.S.C. § 1) that outlines advisory rules for display of the U.S. flag, which also includes the California State flag and City of Santa Ana flag. The policy would include a provision for the City Council to use one or more flagpoles to express itself (government speech), where the City itself is the speaker. The City’s flagpoles would be for the sole use of the City and would be considered an expression of the City’s official sentiments only.
  2. Implement a flag policy in accordance with the United States Flag Code (4 U.S.C. § 1) that outlines advisory rules for display of the U.S. flag, which also includes the California State flag and City of Santa Ana Include a provision where one or more flag poles would be designated as a public forum (designated public forum) for non-government speakers to display flags. Include content-neutral time, place, and manner (TPM) restrictions as appropriate. Time, place, and manner restrictions would be based on the purpose described in the City’s sign code: “Such regulation is deemed necessary to enhance the quality of the visual environment, thereby promoting commerce, improving community identity, conserving property values, improving traffic safety, and promoting the health, safety and general welfare of the people” (Sec. 41-850). Note that the content of these flags could not be restricted as any content-based restrictions would be considered unconstitutional. 

BACKGROUND

There are many legal considerations regarding the implementation of a flag policy, which are described below.

Forums

There are three types of public forums, traditional, designated, and limited forums:

Traditional public forums are those that “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions” (307 U.S. 496). Examples of traditional public forums include public streets and parks. Any restriction on the content of speech in a traditional public forum is subject to strict scrutiny and must be narrowly tailored to achieve a compelling governmental interest.

A designated public forum is government property that, although not a traditional public forum, the government has specifically opened for open communication and free expression of ideas. Governments may impose reasonable time, place and manner restrictions on expression in any public forum. Similarly to traditional public forums, restrictions on free speech in designated public forums are also subject to strict scrutiny.

If a local government organization wants to create a forum for individuals to voice concerns but does not want to create unrestrained access, then the government may create a limited public forum. A government organization “may be justified ‘in reserving [its forum] for certain groups or for the discussion of certain topics” (515 U.S. 819). However, governments do not have unrestrained discretion. Government cannot discriminate against different viewpoints and “any restriction must be ‘reasonable in light of the purpose served by the forum” (473 U.S. 788). For example, discussion at City Council meetings may be limited to speech relevant to the issue at hand.

If the City Council decides to designate one or more flag poles as a public forum, the City would likely not be able to impose content-based restrictions on the forum’s use because any content-based restriction would be subject to strict scrutiny, as described below. However, the City would be able to impose content-neutral time, place, and manner restrictions, as well as restrictions on obscenities:

Content-Based Restrictions

Restrictions that require examining the content of speech to be applied must pass strict scrutiny: it must be justified by a compelling governmental interest, the law or policy must be narrowly tailored to achieve that goal or interest, and the law or policy must be the least restrictive means for achieving that interest.

In addition, content-based restrictions must be applied equally:

  • Reed v. Town of Gilbert (2015) – content-based distinctions must satisfy strict scrutiny. In contrast, government organizations may impose content-neutral time, place, and manner (TPM) restrictions on speech. The Supreme Court has developed a four-part analysis to evaluate the constitutionality of TPM restrictions. TPM restrictions must be content-neutral, be narrowly drawn, serve a significant government interest, and leave open alternative channels of communication.

Speech Not Protected by the First Amendment

Obscenity is the only type of speech that is not protected by the First Amendment:

  • Miller v. California, 413 U.S. 15 (1973) – definition of obscenity to that which lacks “serious literary, artistic, political, or scientific value.”
    • Obscenity is not protected by the First Amendment and thus can be regulated by the state. However, the state must conform to the Three-Prong Test/Miller Test .

Speech  Protected by the First Amendment

All other speech, including fighting words, hate speech, and inflammatory speech, are protected by the First Amendment and thus may not be regulated by Government.

Fighting words:

  • Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) – the Supreme Court articulated the fighting words doctrine, a limitation of the First Amendment’s guarantee of freedom of speech.
    • A criminal conviction for causing a breach of the peace through the use of “fighting words” does not violate the Free Speech guarantee of the First Amendment.

Hate speech:

  • A.V. v. City of St. Paul (1992) – The Supreme Court held that the prohibition against hate speech was unconstitutional as it contravened the First Amendment. The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable mode of expressing whatever idea the speaker wishes to convey. Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence.

Inflammatory speech:

  • Brandenburg v. Ohio, 395 U.S. 444 (1969) – The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.
    • “Imminent lawless action” is a standard currently for defining the limits of freedom of speech. Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely.

Governmental intent is the determining factor in whether a forum is public or not. A government organization “does not create a designated public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse” (532 F.3d 888).

If the City Council decides to use one or more flagpoles to exercise its freedom of expression, the City would not open a public forum. Rather, the City would practice government speech.

Government Speech Doctrine

 The Court uses the following considerations when determining whether Government has created a designated public forum for private speech, or is expressing itself:

  1. Does tradition/practice show that Government has long used this type of speech or mode of communication as a means of communicating with the public?
  2. Does the public routinely and reasonably interpret the communication as conveying a governmental rather than a private message?
  3. Does the government exercise and maintain control over the selection of the message?

Government need not maintain viewpoint neutrality in its own speech, and thus may express itself freely, as long as its expression does not have a religious purpose or encourage a certain vote in an election.

Cases for reference:

  • Wooley v. Maynard, 430 U.S. 705 (1977)
    • Government speech on public property vs. private property – government may express itself on public property, but may not use private property to do the same.
  • Rust v. Sullivan, 500 U.S. 173 (1991)
    • Regulations on the use of funds from the U.S. federal government – the government may make a value judgment and implement that judgment by using subsidies of public funds; the use of public provided funds (subsidies) by the government to support one viewpoint over another is not considered “discrimination” simply by the government taking a particular viewpoint over another.
  • Rosenberger v. University of Virginia (1995)
    • The University’s denying funds available to other student publications, but not to a publication produced from a religious viewpoint, violates the First Amendment’s guarantee of free speech. The University’s assertion that the exclusion was necessary to avoid violating the Establishment Clause lacked merit because the funds were apportioned neutrally to any group meeting certain criteria that requested the funds.
  • Board of Regents v. Southworth, 529 US 217 (2000)
    • The Court held that public universities may subsidize campus groups for activities, including political and ideological actitivities, by means of a mandatory student activity fee without violating students’ First Amendment rights.
  • Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th. Cir. 2000)
    • Government speech – in areas where government speech exists (a private forum for government speech), individuals have no First Amendment right to dictate or to contribute to the contents of that speech.
  • Legal Services v. Velazquez, 531 U.S. 533 (2001)
    • The Court ruled that this specific restriction violated the free speech guarantees of the First Amendment to the United States Constitution. Because LSC facilitated “private” speech—that of its grantees—the restrictions did not simply regulate government speech. Because the restrictions blocked attempts to change only a specific area of law, the Court held, they could not be considered viewpoint-neutral; the government is prohibited from making such viewpoint-based restrictions of private speech.
  • USDA v. United Foods, 533 U.S. 405 (2001)
    • Compelled-subsidy to support private speech, including commercial speech, violates the First Amendment and does not fall under the Government Speech Doctrine.
  • Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005)
    • Compelled-subsidy to support public speech vs. private speech – compelled support of private speech differs from compelled support of government speech. The Supreme Court has generally assumed, though not squarely held, that such funding of government speech does not alone raise First Amendment concerns.
  • Pleasant Grove City v. Summum (2009)
    • held that the city could, display in the city park a monument bearing the Ten Commandments, but refuse to accept a monument representing the Summum religion. The choice of monuments in the park represented government speech, the court said, and the city was free to choose which monuments it put on permanent display in its park
  • Walker v. Texas, 135 S.Ct. at 2245 (2015)
    • The Court applied the Government Speech Doctrine to the issue of specialty license plates, upholding the state’s decision to reject a proposed license plate bearing the image of a Confederate battle flag. The Court held that the state’s license plate program is government speech, and not a forum for citizens’ private expression.

Limitations of Government Speech/Expression

Establishment Clause:

  • Government action must:
    • Have a secular purpose (government intent)
    • Main effect: neither advances nor inhibits religion (does not convey endorsement or disapproval)
    • Not foster entanglement of religions and government

California Government Code:

Cal. Gov’t Code § 54964, Stanson v. Mott (1976), Miller v. California Commission on the Status of Women (1984)

  • In California, local governments may not expend public money to encourage a certain vote in an election, without specific statutory authority to do so.
  • Any such expenditure is reportable to the FPPC. Cal. Gov’t Code § 84203.5.

Laws differ by state.

CONCLUSION

Our City Council ultimately approved the proposed City Council Policy on the Display of Flags at City Facilities (flag policy) on December 6, 2016.  You can view the completed staff report and all corresponding exhibits here.

If you have any specific questions regarding the content of today’s Morning Buzz, please comment below or email me at dsoto@santa-ana.org.