Government has no rights: Another look at free speech at UNC Asheville event

In early November, five departments at UNC Asheville sponsored an official event accusing Israel of “anti-Indigenous state violence” for declaring war on Hamas after the Oct. 7 terrorist attacks. While the event was condemned across the political aisle, there have been fierce disagreements about whether the university should have permitted the event to move forward in the first place.

Congressman Chuck Edwards (R-NC11), whose district includes Asheville, called for its cancellation, saying that “It’s…hard to believe that an institution like UNCA would allow this event on campus, [one that]…is designed to normalize and espouse hateful anti-Semitic rhetoric.”

However, other political commentators came to the university’s defense. Dr. Andy Jackson, director of the John Locke Foundation’s Civitas Center for Public Integrity, published an op-ed here in the Carolina Journal arguing that “[The] freedom of speech protects [even] unpopular ideas,” implying that a cancellation of the event would violate the First Amendment.

While I have great respect for Dr. Jackson’s scholarship, I respectfully disagree with him on this point. In this case, the “Until We’re All Free” event was not hosted by a student organization, nor by professors acting on their own time. On the contrary, it was actively organized, sponsored, and endorsed by five departments at UNC Asheville, acting in their official capacities as part of the government of North Carolina. This was a classic example of government speech, and nothing in the First Amendment shields it from scrutiny. (Of course, there may be policy reasons for still sponsoring the event, but such an act is not required by the Constitution.)

This article takes a brief look at the government-speech doctrine and explains why it applies to the UNCA event.

Original meaning

The First Amendment protects individual citizens, not speech itself. More specifically, it applies to “the liberty [of expression] that humans would enjoy in a state of nature, bounded by the dictates of natural law.” It is fairly clear that, in the state of nature, no person would have the right to receive government approval of their speech, since the state would not exist to begin with. In other words, the freedom of speech predates government, and therefore does not rely on its endorsement.

Building on this understanding, the Supreme Court has repeatedly held that when public officials are deciding which speech the government will support, rather than what speech the government will permit, they are not subjected to First Amendment scrutiny. (NEA v. Finley, J. Scalia, concurring, “It is the very business of government to favor and disfavor points of view”)

Public forum v. duties or authority

Since this area can get pretty complicated, the Court has used two parallel tests to decide whether or not certain conduct qualifies as government speech. The state need only satisfy one to avoid a First Amendment violation.

The first is public forum analysis. If the state invites private citizens to participate in a program, courts must decide whether or not the program actually still conveys the government’s message. The Court has typically used three factors in public-forum cases: “the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.” (Shurtleff)

In Pleasant Grove City v. Summum, the Court held that a monument program in a city park constituted government speech. It did so for two reasons: first, the town government explicitly used a monument’s content and message in deciding whether or not to approve it; and second, monuments have historically conveyed the message of their land’s owner, in this case the city.

In another case, Shurtleff v. Boston, the Court came to the opposite conclusion just last year. The City of Boston maintained a program where private groups hosting events at town hall could fly their organization’s flag over the building. The City played no role in selecting the flags, and didn’t even look at them as part of the application. But when a Christian group sought to fly a religious flag over the hall, the City refused. The Court held that because it played no role in selecting the flags and held out its program as open to the general public, the City had created a public forum, one from which it could not exclude disfavored viewpoints.

The second test is on duties or authority analysis. Sometimes, a government employee will act separately without the help of his department. This makes the analysis much harder, because the court must determine whether the employee’s conduct qualifies as the government’s speech or if he is acting as a private citizen.

In Garcetti v. Ceballos, the Court came up with a test for these kinds of situations. It broadly held that whenever a public employee acts pursuant to the duties or authority of his office, his messages constitute government speech. In that case, a prosecutor was disciplined for criticizing his superiors as part of his official duties. The Court held that this was permissible because the prosecutor was engaging in government speech, which could be regulated. In another case, this time from 2022, the Court held that when a high school football coach knelt in prayer at the end of a game, he was not engaging in government speech because his duties as a coach had technically ended.

This event was government speech

When one looks at the facts of the UNCA event, it becomes clear that this was an example of government speech. Since this involved entire governmental departments rather than individual employees, public-forum analysis applies. I’ll take each of the factors in turn.

History of the conduct: This is largely unnecessary, since there is not an unusual form of expression at issue here, such as the flying of flags or the building of monuments.

Public perception: In their promotional flyer for the event, five departments at UNC Asheville stated that they “supported” the event, clearly demonstrating to the reader that this message was endorsed by the government divisions in question. While the university later tried to argue that no public funds were used for the event, this is irrelevant. Its administration still actively supported, endorsed, and organized the lectures.

The government’s control over the speech at issue: If UNC Asheville had created a new debate series focusing on the Israel-Palestine conflict and held out this series as “open to all viewpoints,” then it would become a public forum subject to First Amendment restrictions. But the university didn’t do so. Rather, it created a single event focusing on one particular viewpoint about the conflict — namely, that Israel is guilty of “militarism, policing,…[and] violence.” Every speaker at the event agreed with this viewpoint, and as far as I can tell, the university has not offered to host a rebuttal lecture led by supporters of Israel.

As a result, this event was carefully shaped by the state to express a government-endorsed message. Contrary to how several media articles have portrayed it, this event was not an example of university officials refusing to stifle speech. It was an example of the university engaging in speech itself. Unlike the former, the latter is subject to regulation by the people of North Carolina and their elected representatives, who may wish to convey a different message about Israel.

Conclusion

Nothing in this article means that UNC Asheville should have refused to sponsor the event. However, university officials may have allowed their departments to endorse and organize the conference based on a mistaken view of the First Amendment. If that is the case, I hope that this article has helped to clarify their legal responsibilities, and established that our Constitution protects private citizens, not the state.