The Impact of <i>Walker</i>>s Government Speech Extension on Public Transit Advertising

Abstract

In its 2015 decision, Walker v. Tex. Div., Sons of Confederate Veterans, the Supreme Court held that a state specialty license plate program constituted government speech, even though a private entity created and submitted the plate for approval. The Court’s decision broadened the scope of the government speech doctrine and failed to remedy the constant clash between the public forum doctrine and the government speech doctrine in situations where a private individual or organization speaks while utilizing government property.Walker is directly at odds with the public forum jurisprudence, specifically Rosenberger v. Rector & Visitors of Univ. of Va. and Lehman v. Shaker Heights. Further, the Court has offered no guidance regarding the distinct similarities between the cases or the context at issue. Thus, the Walker extension reinforces the argument for a government speech analysis in the public transit-advertising context. The current instability that exits within the public transit cases suggests that the government speech argument will likely be reconceptualized and extended to cover private speech and transit advertisements.This Article argues that courts should adopt a concrete test to distinguish between private speech and government speech, in order to preserve the protections afforded private speech by the forum doctrines. Part I of this Article provides a concise overview of the government speech doctrine and the public forum doctrine, and addresses the Court’s most recent government speech doctrine extension in Walker v. SVC. Part II examines the dangers of extending government speech and analyzes the tension between Walker and the application of the public form analysis in Rosenberger and Lehman. To address the conflict between private speech and government speech, and the dangers of extending the government speech doctrine, Part III examines the current instability of the public forum analysis in the transit-advertising cases, including an evolving circuit-split, and pre-Walker government speech arguments. Finally, Part IV identifies and crafts a factor test that courts should consider when rectifying the conflict between private speech and government speech post-Walker.