CONSTITUTIONAL LAW--FREE SPEECH--D.C. CIRCUIT UPHOLDS ACCESS RESTRICTION TO MILITARY-RUN NEWSPAPERS ON FORUM ANALYSIS GROUNDS.--Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008).
Recent decades have witnessed an increasing amount of communication by the state and federal governments. (1) Responding to this increase in communication, the Supreme Court has developed the government speech doctrine in an attempt to make sense of the different roles government can play both as a speaker and as the regulator of private speech. (2) This "recently minted" approach, (3) however, has led to confusion. (4) Recently, in Bryant v. Gates, (5) the D.C. Circuit rejected a First Amendment challenge to a Department of Defense decision not to publish certain advertisements in government-operated newspapers distributed on military bases. (6) The panel's decision was grounded in conventional forum analysis. (7) Judge Kavanaugh argued in concurrence, however, that the panel's forum analysis was unnecessary and that the case could have been resolved more easily on government speech grounds. (8) Although Judge Kavanaugh reached the same result, he was wrong to invoke the government speech doctrine. The application of this doctrine in this case suggests a disconcerting expansion of the theory beyond its original purpose: protecting the government's ability to communicate in an unfettered fashion. Furthermore, the doctrine provides perverse incentives, which counsel in favor of a narrow construction. Thus, the Bryant panel wisely eschewed Judge Kavanaugh's application of government speech analysis to the civilian enterprise newspapers' (CENs) advertising sections. Future courts should reserve the doctrine for clear instances of government expression and "go slow in setting [the government speech doctrine's] bounds." (9)
In the 1980s and 1990s, Larry Bryant, then a long-term federal employee, filed a variety of unsuccessful First Amendment claims against the government. (10) In 2004 and 2005, Bryant sued the Secretaries of Defense, the Army, the Air Force, and the Navy in the United States District Court for the District of Columbia, arguing that the defendants had violated his First Amendment rights by rejecting advertisements (11) he had submitted to various military-run newspapers while accepting other political advertisements. (12) Both sides moved for summary judgment.
District Court Judge Kollar-Kotelly noted initially that she agreed with the government's contention that Bryant's claims were probably "fatally underdeveloped." (13) Still, she moved on to the merits of the First Amendment claim. She concluded that neither CENs nor the advertising sections contained therein were public forums for purposes of the First Amendment. (14) Her conclusion could have rested on collateral estoppel grounds, (15) but Judge Kollar-Kotelly proceeded to apply forum analysis to CENs anew. (16) The designation of a given forum, she stated, depends on two factors: "[T]he government's intent in establishing and maintaining the property," (17) and the nature of the property--that is, whether the government had created a property consistent with expressive activity. (18) Applying these principles and noting the deference typically given the military, (19) the court concluded that CENs were nonpublic forums and were therefore subject only to review for reasonableness and viewpoint-neutrality. (20) Judge Kollar-Kotelly held that the restrictions on CEN advertising sections were in fact reasonable and viewpoint-neutral: the provisions protected the military from appearing beholden to political causes or candidates. (21) Quickly denying Bryant's other claims, (22) Judge Kollar-Kotelly granted summary judgment for the government. (23)
The D.C. Circuit affirmed. (24) Writing for the panel, Judge Ginsburg (25) sought first to identify the relevant forum. He concluded that the forum at stake was the advertising section of each CEN, not the newspaper as a whole. …