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Wednesday, June 24, 2009

Nazis, Highway Signs, and the Government

If you spend much time in your car, you’re probably familiar with adopt-a-highway programs, in which states erect signs bearing the names of organizations that have agreed to pick up litter along particular stretches of road.  As the New York Times this week reported here and here, certain groups’ efforts to participate in those programs continue to generate controversy:  a half-mile of Missouri highway, for example, is marked by a sign recognizing the clean-up efforts of a neo-Nazi group.  State legislators sought to send a counter-message of inclusiveness by naming that road after civil rights advocate Rabbi Abraham Joshua Heschel -- but Heschel's daughter has opposed the move out of concern that "attaching her father's name to a road cleaned by neo-Nazis would be 'vulgar' and would 'dishonor' him."


As another possible approach for those chagrined by a state's roadside recognition of a Nazi group, I suggested in an earlier article that, under certain circumstances, adopt-a-highway programs could be designed expressly to convey the government's thanks -- and thus could be considered the government's own speech that it remains free to deliver or withhold.  Recall that the Supreme Court has made clear that the government’s speech on its own behalf is "exempt from First Amendment scrutiny.”  Those unhappy with their government’s expressive choices can seek redress through political accountability measures -- like lobbying for a change in the government's position or voting for new government officials -- rather than through First Amendment litigation.  Indeed, the decision of whether to thank – and, if so, how effusively – can be an extremely expressive choice.  For example, public universities often accept gifts of money or services from private parties without any promise of recognition, retaining the expressive choice as to whether and how to acknowledge the gift.  


Of course, government may instead seek to encourage private contributions by selling advertising space on its property in exchange for labor or financial support.  For example, government might promise recognition on a commemorative brick or sell naming rights to a building in exchange for a donation of a certain amount.  In those cases, government’s release of its claim to the speech as its own means that its regulation of what is then private expression remains subject to traditional First Amendment scrutiny.  Under this analysis, government's viewpoint-based efforts to exclude certain groups from such programs will almost always violate the First Amendment.  


Whether the government can avoid acknowledging the Nazis (or any other group) on government speech grounds thus may turn on whether we understand the clean-up services to be a donation to which the government may (or may not) respond with thanks or instead as a purchase of public recognition.  In other words, do the Nazis seek to secure the state's perceived endorsement, or do they simply seek to buy prominent advertising space?  Designing adopt-a-highway programs transparently to reflect the government's own expressive choices  -- e.g., “Missouri thanks x for keeping our roads clean” –  may make a difference. To be sure, a state that retains the choice of whether and how to express thanks may undermine its attractiveness to potential volunteers.  But the state may be willing to pay that price in exchange for greater expressive control.   

Posted by Helen Norton on June 24, 2009 at 06:28 PM | Permalink


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