Government Speech and Online Forums: First Amendment Limitations on Moderating Public Discourse on Government Websites

I. Introduction 1982 II. Public Discourse and Online Forums 1985 A. Government's Growing Online Presence 1985 B. Private Speech and Online Forums 1989 C. Applying Public Forum Analysis to Online Forums .... 1993 1. Speaker-based restrictions in a public forum ......... 2000 2. Content- based restrictions in a public forum ........ 2001 III. The Evolving Government Speech Doctrine 2010 A. The Doctrine's Genesis 2011 B. Government Speech on Government Websites 2019 C. The Nature of Public-Government Discourse 2028 TV. Limiting the Government Speech Doctrine 2029 A. Ensuring diat Government Can Be Held Accountable for Its Expressive Activities 2031 B. Accountability, Transparency, and Website Design ..... 2034 1. Government-authored speech 2035 2. Mixed governmental and private speech 2037 V. Conclusion 2042 I. Introduction In order to function, government must speak. And in order to remain relevant, government must speak through the same channels that its citizens do. In today's networked world, that means speaking on and through the Internet. When government engages in expressive activities online, however, it raises difficult questions about the limits of the government's ability to control its own message, to subsidize the speech of others, and to restrict private parties from speaking. Courts typically apply the First Amendment's public forum doctrine to answer these questions, but that doctrine is ill-suited to deal with online forums because it has not kept pace with the changes in public discourse in our increasingly networked world. As Justice Kennedy observed in Denver Area Education Telecommunications Consortium v. FCC, "[mjinds are not changed in streets and parks as they once were"; instead, "the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media," especially online media.1 Yet the public forum doctrine, with its formalistic categories and arcane rules, provides neither judicial nor governmental flexibility in dealing with the myriad ways the public- and, increasingly, the government - speak online. While public forum analysis has become a "mainstay" in the Supreme Court's First Amendment jurisprudence,2 where it has been applied in such disparate circumstances as signs on public property3 and charitable fundraisers in government workplaces,4 it has faced "nearly universal condemnation from commentators."5 Indeed, courts6 and commentators7 alike have criticized the doctrine as excessively formalistic, '"serv[ing] only to distract attention from the real stakes' at issue in disputes over public use of government resources for communicative purposes."8 To overcome the public forum doctrine's shortcomings, courts are looking to the "recendy minted"9 government speech doctrine to deal with conflicts over speech on government websites. Unlike the public forum doctrine, which is premised on die idea that "all citizens have an equal right to speak in the public forum and a right to equal treatment from the government,"10 the government speech doctrine is based on die assumption that government not only can, but must, privilege some viewpoints over others. In the Supreme Court's most recent pronouncement on die government speech doctrine, Pleasant Grove City v. Summum?1 the Court made this distinction clear: "If government entities must maintain viewpoint neutrality in their selection of donated monuments, . …