Ronald Kidwell Julie Johnson and Charles Arnett v. City of Union and John Applegate , 462 F.3d 620 ( 2006 )

GIBBONS, J., delivered the opinion of the court, in which GRIFFIN, J., joined.

MARTIN, J. (pp. 626-637), delivered a separate dissenting opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiffs-appellants, taxpayers in the City of Union, Ohio, sued the city and John Applegate, the City Manager, under 42 U.S.C. § 1983. Among other arguments, Plaintiffs claim that the defendants violated the First and Fourteenth Amendments by advertising and otherwise advocating against a citizen-sponsored ballot initiative and in favor of a tax levy. The district court granted the defendants’ motion to dismiss the claims with respect to all defendants on all issues except for the improper use of funds to combat the citizen initiative. The district court subsequently granted the defendants’ motion for summary judgment on the final issue. Plaintiffs appeal.

I.

This case arises from a series of disputed ballot initiatives beginning in 1997 relating to the creation and funding of a fire department in the City of Union (“Union”). In 1997, Union’s fire and emergency services (along with those of other neighboring communities) were provided by the neighboring township of Randolph. The combination of the restructuring of the townships and the perceived inadequacy in Union’s emergency services led to changes in the fire department structure. The Union Council (“Council”) initially negotiated for a shared fire department with another neighboring town but ultimately passed an emergency resolution establishing a town fire department. The new fire department became effective on January 1,1998.

The resolution establishing a Union fire department was challenged by the plaintiffs via a ballot initiative requiring a referendum. The referendum was preceded by a lively campaign in which the plaintiffs organized a “Vote Yes” campaign to retain the extant fire districts. The Council supported the opposite position and used public funds to disseminate information supporting its position to citizens. The Union City Charter permits the Council to “authorize the expenditure of public funds to provide information to the members of the public in connection with elections on proposed tax levies and bond issues ... and other issues affecting the Municipality and not involving the election of candidates for a public office .... ” Union City Charter § 5.09. Plaintiffs, however, object to the hanging of “Vote No” banners, mailing of leaflets to residents, advertising in local newspapers, and using the town newsletter to support the Council’s position.¹ The referendum occurred in November 1997, and the Council’s decision was ratified. Voters funded the new fire department in a May 1998 referendum.

Plaintiffs allege that the city continued to disseminate information and advocate for causes over the next several years. The advocacy included the use of public funds in 2000 and 2001 to oppose ballot initiatives regarding land annexation and provision of water and sewage services to non-residents and to promote tax levies in anticipation of referenda in 2001. The record is silent on the extent of the advertising by the Union government during these later referenda.

In response to Union’s actions during the fire department referendum, the plaintiffs and others sued Union and Applegate, its Manager. The district court dismissed the claim. Lash v. City of Union, 104 F.Supp.2d 866 (S.D.Ohio 1999). After the district court issued its ruling, the parties settled the case without appeal. The settlement agreement released the defendants from some claims but preserved plaintiffs’ right to seek declaratory and injunctive relief relative to the use of funds to advocate a position on the 1997 ballot initiative and the 1998 tax levy for the fire department and to bring new claims arising after May 1998. The instant lawsuit against Union, Applegate, the mayor, and the town council of Union followed. The district court dismissed the mayor and town council after finding that they qualified, respectively, for qualified and absolute immunity. The court then granted summary judgment for Union and Applegate, holding that the spending for viewpoint-based advertising for citizen initiatives and tax levies in this case did not violate the First or Fourteenth Amendment. Plaintiffs argue on appeal that the city’s advocacy was unconstitutional.²

II.

This case presents the rare instance when public citizens seek to limit the speech of a governmental entity rather than the reverse. The scenarios in which citizens may halt a government’s speech are limited. “[Wjhen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.” Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). The government’s power to fund its speech is similarly limited, however. In NAACP v. Hunt, 891 F.2d 1555 (11th Cir.1990), the Eleventh Circuit identified three categories of government actions that courts have determined to be unconstitutional infringement of free speech: (1) abridgment of equality in the field of ideas by granting differential access to public fora based on viewpoint; (2) monopolization of the “marketplace of ideas”; and (3) compulsion of citizens “to support candidates, parties, ideologies, or causes that they are against.” 891 F.2d at 1565-66 (internal citations and quotations omitted). Plaintiffs assert that Union’s actions violated two of these categories by denying them access to a public forum (the town newsletter and town treasury) and compelling them to support causes to which they are adverse. Plaintiffs urge us to find that government speech relating to elections is a form of unconstitutional compelled speech by distinguishing between governing and campaigning.

Turning first to the issue of differential access to public fora, plaintiffs argue that Union unconstitutionally denied them access to two public fora' — the town newsletter and the town treasury — to which others had been granted access. A government abridges “equality in the field of ideas” when it grants “the use of a [public] forum to people whose views it finds acceptable, but [denies its] use to those wishing to express less favored or more controversial views.” Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).

Plaintiffs assert that they were denied access to the town newsletter, but, as the district court noted, they provide no evidence that they asked for or were refused access to that forum, even if it was public. Plaintiffs have similarly failed to present evidence that any other private group was given access to the newsletter other than a single quote about the contested issue that was responsive to another quote advocating the contrary position. “[W]hen government property is not dedicated to open communication the government may-without further justification-restrict use to those who participate in the forum’s official business.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 53, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). The single quotation cannot be construed as opening the newsletter as a public forum. See Cook v. Baca, 95 F.Supp.2d 1215, 1221 (D.N.M.2000) (noting that one factor in the determination of whether a public forum existed is the “extent of use of the forum”). Further, “when the government determines an overarching message and retains power to approve every word disseminated at its behest, the message must be attributed to the government for First Amendment purposes.” ACLU of Term. v. Bredesen, 441 F.3d 370, 375 (6th Cir.2006), citing Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 559-67, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005). Here, Union approved the message delivered in the town newsletter, so its content must be considered that of the city itself, not that of the quoted private citizen. See Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 686, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (O’Connor, J., concurring) (agreeing that airport is not a public forum). Plaintiffs thus cannot prevail on their public forum claim relating to the newsletter.

The town treasury is not a public forum; it is not “by tradition or designation a forum for public communication.” Perry, 460 U.S. at 46, 103 S.Ct. 948. Nor is the treasury a limited purpose public forum; Union has not opened that treasury to the public by making any town funds available to private individuals or groups. Union has used the treasury for its own speech — a use that has no effect on the treasury as a public forum. Id. (“As we have stated on several occasions, the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” (quotations and citations omitted)); cf. Rosenberger 515 U.S. at 833, 115 S.Ct. 2510 (granting the government deference to use its funds to further its own viewpoint). To hold that Union’s advocacy converts its treasury to a public forum would severely limit the town’s ability to self-regulate and would be tantamount to a heckler’s veto, where the government could not speak for fear of opening its treasury to the public. This argument is therefore baseless, and the plaintiffs’ public forum challenge cannot succeed.

As to the plaintiffs’ second claim regarding compelled speech, governments cannot compel citizens to support positions with which they disagree. Wooley v. Maynard, 430 U.S. 705, 715, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (“The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster ... an idea they find morally objectionable.”). This case, however, presents a compelled subsidy — not a compelled speech — claim because the plaintiffs were not themselves required to speak in any manner. While plaintiffs cast the compelled speech argument distinguishing governing and campaigning as separate from the compelled subsidy issue, we believe that it is more appropriate to describe the speech issue as a special case of the compelled subsidy issue, as dealt with in Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005).

The Supreme Court has held in several instances that compelled subsidies may violate the First Amendment rights of citizens. See Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) (labor union political action); Keller v. State Bar of Cal., 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990) (bar dues for political action); Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000) (student activities fund for extracurricular activity). All of the cases in which the Supreme Court has held a compelled subsidy to be a First Amendment violation have involved subsidies of speech by private organizations rather than by the government itself. Governmental subsidies are distinguishable from the labor union, state bar, and state university contexts because it is imperative that government be free to make unpopular decisions without opening the public fisc to opposing views. The Supreme Court recognized this distinction in Southworth: “The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to defend its own policies.” 529 U.S. at 229, 120 S.Ct. 1346. More recently, in Johanns v. Livestock Mktg. Ass’n, the Court addressed a compelled subsidy directly in the governmental context:

Our compelled-subsidy cases have consistently respected the principle that “[cjompelled support of a private association is fundamentally different from compelled support of government.” “Compelled support of government”— even those programs of government one does not approve — is of course perfectly constitutional, as every taxpayer must attest. And some government programs involve, or entirely consist of, advocating a position.

544 U.S. 550, 559, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) (quoting Abood, 431 U.S. at 259 n. 13, 97 S.Ct. 1782 (Powell, J., concurring in judgment)).

Here, the plaintiffs have challenged the expenditure of tax dollars by a governmental entity to advocate a position — a case that the Supreme Court deemed “perfectly constitutional” in Johanns. Id. at 2062. Though the plaintiffs acknowledge that the speech in this case is attributable to the government, they argue that the power of the government to compel subsidies for its speech is not as broad as the Supreme Court suggested in Johanns. Because the asserted subsidy arose in the context of an election, the plaintiffs argue that this court should find Union’s speech to be unconstitutionally compulsive.³

As the dissent recognizes, elections raise unique constitutional issues because they are the very foundation of a democratic system: where the government uses its official voice in an attempt to affect the identity of the people’s elected representatives, it can undermine its legitimacy as a champion of the people’s will and thereby subvert one of the principles underlying democratic society. See Stanson v. Mott, 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1, 9 (1976) (discussing importance of elections in the democratic process). Although these principles require some limit on the government’s power to advocate during elections, they do not support a bright line rule barring such speech, at least where the government speaks within the scope of its governance functions.⁴ Governments must serve their citizens in myriad ways, including by provision of emergency services, and these activities require funding through taxation. Union’s speech related to emergency service and tax initiatives thus fits squarely within its competence as governor and was made in the context of “advocat[ing] and defending] its own policies.” Southworth, 529 U.S. at 229, 120 S.Ct. 1346. The issues on which the city advocated were thus germane to the mechanics of its function, and are clearly distinguishable from the hypothetical cases of government speech in support of particular candidates suggested by the dissent. See Rosenberger, 515 U.S. at 833, 115 S.Ct. 2510; Southworth, 529 U.S. at 229, 120 S.Ct. 1346. Where speech is not so directed, the result may be different: in Mountain States Legal Foundation v. Denver School District No. 1, by contrast, the court ruled illegal a local school board’s use of public funds for advocacy in a statewide initiative regarding education funding. 459 F.Supp. 357, 361 (D.Colo.1978). Unlike Union’s actions, the school board’s advocacy in Mountain States was not directly related to its governance functions and was struck down.

In this case, Ohio’s home rule system made Union’s policies subject to acceptance or rejection by ballot. In this context, a limit on government speech during elections would allow hecklers to silence the government on issues in which it has an interest and expertise — and on which citizens have an interest in hearing their government’s perspective. See Ala. Libertarian Party v. City of Birmingham, 694 F.Supp. 814, 817 (N.D.Ala.1988) (upholding promotional campaign relating to levies where the subject of the campaign was “related to the common needs of all citizens”). Because Union’s speech in this case was germane to its role as governor, plaintiffs have failed to show that democratic legitimacy is threatened or that Union’s compelled subsidy of its speech violates the Constitution.

The natural outcome of government speech is that some constituents will be displeased by the stance their government has taken. Displeasure does not necessarily equal unconstitutional compulsion, however, and in most cases the electoral process — not First Amendment litigation — is the appropriate recourse for such displeasure. See Johanns, 544 U.S. at 563, 125 S.Ct. 2055 (noting the importance of political accountability of decisionmakers). The needs of effective governance command that the bar limiting government speech be high. The plaintiffs in this case have failed to show that the City of Union’s expenditures crossed the line separating a valid compelled subsidy from an unconstitutional one, and valid advocacy from prescription of orthodoxy.

For the foregoing reasons, we affirm the district court decision.

1 . Defendants contest the factual accuracy of some of the plaintiffs' allegations. For example, they say that the "Vote No” banner was bought by a political action committee and only hung by a city employee.

2 . Because we hold that defendants did not violate plaintiffs’ constitutional rights, we need not consider the immunity issue. Further, plaintiffs have abandoned the state law claim for injunctive relief relating to the Manager's expenditure of funds without Council authorization.

3 . Neither the plaintiffs nor the dissent have identified a single case where a court relied upon such a distinction to decide a free speech question. Several cases discussed in the dissenting opinion, notably Dist. of Columbia Common Cause v. Dist. of Columbia, 858 F.2d 1 (D.C.Cir.1988), Stanson v. Mott, 17 Cal.3d 206, 130 Cal.Rptr. 697, 551 P.2d 1 (1972), Citizens to Protect Public Funds v. Bd. of Educ., 13 N.J. 172, 98 A.2d 673 (1953), and Mountain States Legal Found., v. Denver Sch. Dist. No. 1, 459 F.Supp. 357 (D.Colo.1978), were decided on statutory or other non-constitutional grounds, so they lack direct applicability here. Moreover, they were all decided before Southworth, Rosenberger, and Johanns clarified the extent to which governments do have the right to support their own positions on contested issues. As a result, a close analysis of these cases is of limited value in this case.

4 . The dissent conclusorily rejects any distinction between permissible government speech reasonably related to governance functions and impermissible speech, for example, speech in support of a particular candidate for office. Common sense militates and Supreme Court precedent requires us to reject the dissent’s position. The dissent wrongly ignores not only the Supreme Court’s recent strengthening of its compelled subsidy jurisprudence in Johanns, but also Southworth’s and Rosenberger’s more generalized holdings as to a government’s right to defend its own policies. A bright line rule against any governmental speech regarding any referendum would violate these clear dictates favoring a more nuanced test for the propriety of such speech.