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This chapter examines the Supreme Court's decision inPleasant Grove City v. Summum. In the city of Pleasant Grove, Utah, sits Pioneer Park—the site of a local controversy that launched a landmark expansion of the doctrine known as “government speech.” The park's attractions are a hodgepodge of monuments and historical markers, including a privately donated Ten Commandments monument. A small and unconventional local religious group called Summun argued before the Supreme Court for the right to place its own monument next to the Ten Commandments in Pioneer Park. At issue in the Summun case was whether and how the claimed government speech forum would apply to monuments in a public park. Beneath the surface of this issue, however, were some very fundamental First Amendment questions. The chapter focuses on these questions. Is First Amendment immunity for government speech constitutionally justified, and if so, why? Should government's choice of private speech qualify as government speech? Should government's speech power be extended to a government speech forum in which only approved ideas and viewpoints can be expressed?

This chapter discusses government properties, which First Amendment law calls “public forums,” that offer underfunded speakers opportunities to reach audiences. The Roberts Court has limited those opportunities by holding in two cases that the government may commandeer certain speech in public forums to express its own ideas or values and by holding in a third case that public universities may bar university-sponsored student groups from limiting their membership on moral grounds. A fourth Roberts Court public forum decision holds, in much more speech-protective fashion, that a state “buffer zone” that barred speech around abortion clinics restricted more speech than necessary to achieve the government’s permissible objectives. That decision, however, may limit its value for future speakers by emphasizing the distinctive character of the antiabortion “counsellors” who won the case.

This chapter focuses on disputes about conditions the government places on subsidies it provides for speech. The Roberts Court has issued two sharply contrasting decisions about conditional subsidies. One decision upholds a rule that government-funded universities must let the military conduct job interviews on campus. In contrast, the other decision strikes down a requirement that government-funded organizations fighting AIDS overseas must endorse the government’s opposition to sex trafficking. That decision, this chapter argues, mainly serves to mitigate the Roberts Court’s own willingness to treat certain private speech in public forums as government speech. Completing the book’s discussion of speech restrictions in government preserves, this chapter concludes that the Roberts Court’s government preserve cases overwhelmingly favor the government’s managerial authority over the interests of speakers who need government resources to convey their messages.

This chapter discusses the controversies over “hate speech” that have dogged President Trump’s early years in office. It provides a brief primer on the First Amendment doctrine relating to “hate speech,” under which derogatory expression is mostly considered protected speech. The chapter examines both the harms associated with “hate speech” and the principal justifications for protecting it. It criticizes the Trump administration’s handling of issues relating to “hate speech.” It also addresses the special problems associated with governmental “hate speech.” The chapter concludes with a consideration of the extent to which the government can use its own expressive powers to educate Americans about the need to preserve both freedom of speech and the security and equal dignity that “hate speech” undermines.

The chapter presents a theoretical framework for dealing with communications by different types of collectivities. The main distinction is between two paradigm collective entities: organizations and communities. Although it makes sense to ascribe speech to both, the grounds for extending constitutional protection are fundamentally different. Whereas communal speech has in and of itself expressive value, organizational speech does not. Instead, the latter has only derivative value, and its protection is parasitic upon other protected interests that the organizations may promote. Moreover, organizational communications themselves are not unitary in nature. A proposed typology of organizations helps calibrate the protection due to their respective communications. Finally, the chapter considers how the classification of collectivities and their speech rights applies to communications by various state institutions.

Chapter 3 introduces the related concept of the public forum through the popular television show Parks & Recreation. Real-life public forums, like the forums depicted in Parks & Rec, are government-provided spaces where viewpoints become voices. They are an essential part of Confident Pluralism because they allow citizens and the groups that they form to advocate, protest, and witness in common spaces—and they are insufficiently protected under current constitutional doctrine. We have seen these weaknesses exposed in a variety of settings, including the crackdown of protests in Ferguson, Missouri, restrictions against labor activism, and regulations of anti-abortion protesters. Correcting these weaknesses will require greater attention to the shortcomings of time, place, and manner restrictions, and to an emerging doctrine known as government speech. A separate challenge arises because public forums are not the only places where we enact the aspirations of Confident Pluralism—privately owned spaces like coffee shops, parks, and online service providers increasingly serve this function. Ordinary citizens need either spaces provided and facilitated by the government or “private public forums” to come together for purposes of dissent, disagreement, and diversity. Let's call this the Public Forum Requirement.