Government Property and Government Speech

ABSTRACT The relationship between property and speech is close, but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of "property" do speakers need to have--physical things, bundles of rights, or something else entirely? In the context of government property and government speech, the ill-defined relationship between property and speech creates a massive but underappreciated theoretical and doctrinal problem, which threatens the very existence of the public forum. The arc of First Amendment jurisprudence, particularly as manifested in public forum doctrine, has been toward limiting the government's right to exclude unwanted private speakers. Government speech doctrine, however, effectively reinvigorates the government's right to exclude unwanted speakers by transforming speech regulations into governmental expressive conduct, which under current government speech doctrine is entirely exempt from constitutional review. The government can therefore invoke not only its property rights, but also the expressive nature of their exercise. Something has to give. Either not all property is expressive, or else not all expressive uses of government property are government "speech" exempt from constitutional scrutiny. Part I of this Article explores the first of these propositions, arguing that the relationship between speech and property requires a more nuanced treatment than it has heretofore received, and that property--whether conceived of as a thing, a legal entitlement, or a social relationship--both enables and is expression. But, as Part H of the Article shows, that conclusion cannot easily be extended into the context of government property and government speech. In government property/government speech cases such as Pleasant Grove City v. Summum, the question should be whether the government has the right to exclude unwanted speakers, not whether the exercise of such a right-assuming the government has it--is expressive. And the best way to answer the correct question is by looking not to formal property rights, but to social understandings of property. INTRODUCTION I. THREE CONCEPTIONS OF PROPERTY AND EXPRESSION A. Disaggregating "Property, " Defining "Expression" 1. Three Conceptions of Property 2. Expression B. Property as a Place or Thing 1. Places and Things Enable Expression 2. Things and Places Are Expressive C. Property as a Legal Entitlement 1. Legal Entitlements (Especially the Right To Exclude) Enable Expression 2. The Right To Exclude Is Expressive D. "Informal" Property as Social Norms or Understandings 1. Social Norms and Understandings Enable Expression 2. Social Norms and Understandings of Property Are Expressive II. GOVERNMENT PROPERTY AND GOVERNMENT EXPRESSION A. The Public Forum as Government Property B. Nonexpressive Government Property 1. Incompatibility 2. Managing Incompatibility: Public Forum Regulation as Commons Management C. Expressive Government Property 1. The Reasonable Observer Approach to Government Speech 2. Racial Exclusion Cases 3. Inclusion of Religious Symbolism 4. Specialty License Plates CONCLUSION INTRODUCTION Property and property rights are the basic mechanisms of expression. Without them, the marketplace of ideas as we know it would not exist. Access to the public forum allows speakers to communicate, intellectual property rights incentivize and protect creative expression, and the very exercise of property rights can itself be an expressive act--excluding protestors with whom one does not agree, for example. …