From the decision of Judge Timothy Corrigan in Bloomberg versus Blockerdecided (clearly correctly, I think) on Thursday:
Bloomberg is a citizen of St. Johns County, Florida, where Blocker serves as chairman of the St. Johns County Board of Commissioners. On March 8, 2021, Bloomberg emailed St. Johns County…about a proclamation celebrating “LGTBQ [sic] advances in civil rights and LGBTQ contributions to the St. Johns County community…”… Michael Ryan, St. Johns County Assistant Public Affairs Director in the County Administrator’s Office, called Bloomberg… to signal that “they would disregard proclamations that were ‘controversial’ or ‘too left-wing or too right-wing’, and therefore the proclamation would not be subject to Council consideration. » …
[A] the governmental entity can “speak for itself”, “say what it wants” and “choose the opinions it wants to express”. … Bloomberg’s First Amendment claims hinge on whether the St. Johns County proclamations are government speech or private speech. Here, the type of speech is a proclamation which, although written by an individual person or group, is adopted and communicated by elected officials at county commission meetings. Historically, proclamations past have covered topics such as 4-H Week, Domestic Violence Awareness Month, Arts and Humanities Month, Whitney Labs, and Columbus Day, and they include a place where an elected can sign below. The proclamation at issue includes the following wording:
Now, therefore, I, under the authority vested in me as [ ] of Saint John [sic] County of Florida, hereby proclaims St. John’s [sic] County Recognition of Stonewall’s 52nd Anniversary and Pride History. I call on all citizens to celebrate the progress we have made, the contributions of the LGBTQIA+ community to our city, to stand as an ally with our friends and neighbors in the face of prejudice wherever it exists, and to embrace the great diversity within our community.
Because the proclamation is written using “I” with the commissioner or elected body speaking in the first person, and with space for the signature of an elected official at the bottom, the Commission approves the contents of the proclamation. (To see Doc. 18 at 6, 13 (“A proclamation is an official document approved by the entire St. Johns County Board of Commissioners.”) (quoting St. Johns County Government website)). Moreover, by choosing whether or not to put certain proclamations on the agenda, the government retains control over the message conveyed, even if the message was originally written by a private citizen….
Bloomberg attempts to distinguish “the decision as to whether or not the Council would issue a proclamation” from “the content-based restriction of refusing to even put the LGBTQ proclamation on the agenda…”. Bloomberg claims that the latter is “an illegal restriction” and that “[p]putting the LGBTQ proclamation to a vote is no more a “government speech” than a ballot initiative placed on a ballot is a “government speech” or an “endorsement” of that initiative. putting an item on the agenda is not the speech of an individual to whom First Amendment guarantees apply….
I expect the Supreme Court’s decision this term in Shurtleff v. City of Boston will be compatible with this, although of course we cannot know for sure until the opinion is given; I spoke briefly about this case on a Federalist Society Teleforum last month: