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naraburns  nihil supernum  1yr ago (text post)   28175 thread views

Culture War Roundup for the week of December 26, 2022

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Hurley was not about some generic right not to be seen as endorsing an idea you disagree with. It was about compelled speech. It was about whether, if you decide to speak, the government can compel you to include specific ideas in your speech: "Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others." Holding a parade is obviously a form of speech. Offering a venue for rent isn't, just as a government is not speaking merely because it offers flagpoles at city hall as a venue for the speech of others . Shurtleff v. City of Boston, 596 U.S. ___ (2022).

In the sense that the strict terms of art used by the justices were more focused on compelled speech as a legal standard, yes. From the sense of whether that connection was seen as speech rather than mere access… Shurtleff said merely offering flagpoles at city hall wasn't endorsing speech, but that's very specific to the facts of the case

The city employee who handled applications testified by deposition that he had previously “never requested to review a flag or requested changes to a flag in connection with approval”; nor did he even see flags before the events. The city’s practice was to approve flag raisings, without exception. It has no record of denying a request until Shurtleff ’s. Boston acknowledges it “hadn’t spent a lot of time really thinking about” its flag-raising practices until this case. App. in No. 20–1158 (CA1), at 140 (Rooney deposition). True to its word, the city had nothing—no written policies or clear internal guidance—about what flags groups could fly and what those flags would communicate.

Compare the extent of Boston’s control over flag raisings with the degree of government involvement in our most relevant precedents. In Summum, we emphasized that Pleasant Grove City always selected which monuments it would place in its park (whether or not the government funded those monuments), and it typically took ownership over them. 555 U. S., at 472–473. In Walker, a state board “maintain[ed] direct control” over license plate designs by “actively” reviewing every proposal and rejecting at least a dozen. 576 U. S., at 213. Boston has no comparable record.

And then explicitly notes that it could be seen as government speech had Boston made those policies, as other jurisdictions at the time did!

Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities’ flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its “ ‘flagpoles are not intended to serve as a forum for free expression by the public,’ ” and lists approved flags that may be flown “ ‘as an expression of the City’s official sentiments.’ ”

Now, that's a different test than the non-government variant, but it is relevant as an example.

Hurley's central framework is compelled speech, but the Turner Broadcasting analysis is, if not specifically using the word 'endorsement', very much about whether the GLIB's speech would be seen as part of the broader parade's speech.

You are agreeing with me. As you say, "very much about whether the GLIB's speech would be seen as part of the broader parade's speech." As I said, "Hurley was not about some generic right not to be seen as endorsing an idea you disagree with. It was about compelled speech. It was about whether, if you decide to speak, the government can compel you to include specific ideas in your speech.

And, as I said, "a government is not speaking merely because it offers flagpoles at city hall as a venue for the speech of others." I put "merely" in bold for a reason: If that is the govt is doing, it isn't speaking. If that is all that a rental facility is doing, it isn't speaking. As I said, "Holding a parade is obviously a form of speech. Offering a venue for rent isn't."

And that is also why the parties spent so much time in Masterpiece and 303 Creative discussing whether the baker/website maker were speaking, and that is why the lower court in Masterpiece rested its decision on a finding that "such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections." Note that I am NOT saying that the lower court was correct in its conclusion, but rather that the issue of compelled speech does not arise unless the person is speaking, and merely offering a space for rent is not speech, unlike a parade, which clearly is.

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