Part 2: Whose Speech?
The argument as I imagine a court might hear it
The thorny thicket.
Yesterday I made the citizen’s case: that a program in which the City chooses whose service to honor on the public way cannot be the neutral tribute it claims to be. The City will not answer that as a citizen. It will answer as a lawyer, with the precedents it believes permit it to draw the line where it pleases. I am not a lawyer. I was, however, the plaintiff in a case that reached the Supreme Court of the United States, and the doctrine that came out of it carries my name. So let me try to set the law down as this artist reads it, and show that the cases the City would reach for put it in a bind.
The two questions, and the trap between them
Every banner program of this kind must be one of two things, and the City must choose. Either the banners are the City’s own speech, or they are private speech that the City hosts in a forum it has opened. There is no third category. Each choice defeats the City: one on the merits of its own claim, the other on the Constitution.
If the banners are government speech, the City is endorsing, and has abandoned its only defense
The City’s strongest legal position is to call the banners its own speech. The Supreme Court has held that when a government speaks for itself, it may choose its message and decline others without offending the Free Speech Clause. Pleasant Grove City v. Summum, 555 U.S. 460 (2009), held that privately donated monuments a city accepts and displays in a public park are government speech, because the city “effectively controlled” the messages by exercising “final approval authority” over what it displayed. Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S. 200 (2015), went further: specialty license plate designs are government speech, so Texas could refuse a Confederate-flag plate: “when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”
So yes: if Newburgh runs this program as government speech, it may lawfully refuse the Confederate banner, the foreign-army banner, the banner for the pardoned January 6th defendant. But read what that costs. To win that protection, the City must stand up and declare that the banners are its own chosen message: that it has decided, as a matter of municipal policy, that service in the United States military is honorable and that the views and passions of those who served otherwise are not. That is the precise endorsement the program was sold as not being. The government-speech defense does not rescue the claim of neutrality. It is the formal abandonment of it. The City may have the banners, or it may have its neutrality. It may not have both.
And the defense is not the safe harbor the City may imagine. Since the high-water mark of the doctrine, the Court has twice pulled back. In Matal v. Tam, 582 U.S. 218 (2017), a unanimous Court refused to treat trademarks the government registers and approves as government speech, warning that holding otherwise “would constitute a huge and dangerous extension of the government-speech doctrine,” and that “if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.” The Court instructed that its government-speech precedents are to be extended only with “great caution.” That is precisely the move a banner program invites: residents choose and sponsor the honorees, and the City affixes its approval. A program of privately sponsored tributes is not converted into the City’s own speech merely because the City stamps each one. The more loosely the City runs it, with applications in and banners up, the less it can claim the editorial control that Summum required, and the more it falls under Shurtleff as a forum it cannot police by viewpoint.
Tam also supplies the answer to the City’s “we only chose a subject” defense. The Court held that “giving offense is a viewpoint,” and that “a subject that is first defined by content and then regulated by mandating only one sort of comment is not viewpoint neutral.” Two years later, Iancu v. Brunetti, 588 U.S. 388 (2019), struck down the bar on “immoral or scandalous” trademarks for the same reason: a rule that “distinguishes between ideas aligned with conventional moral standards and those hostile to them” is, in the Court’s words, “the epitome of viewpoint-based discrimination.” A program that honors conventional military service and excludes the convictions of those who refused it does exactly that. These are trademark cases, and the City will say so; the distinction is fair to note. But the principle they enforce, that the government may not use an approval regime to launder a value judgment past the First Amendment, does not stay in the trademark office. It is the trend of the doctrine, and it runs against the City.
If the banners are a forum, the City may not exclude the viewpoints it finds inconvenient
Suppose the City retreats from that admission and says instead that the program is open, with residents applying and the City approving, a forum for private expression. Then the government-speech cases do not apply, and a different line of authority governs, every case of which cuts against selective exclusion. Shurtleff v. City of Boston, 596 U.S. 243 (2022), is nearly this case. Boston let private groups raise flags on a City Hall pole through an application process; for twelve years it approved every request; then it refused one on the basis of the applicant’s religious viewpoint. A unanimous Court held the program was not government speech, the “most salient feature” being that Boston exercised no meaningful control over the messages, and that, as a forum, the refusal was unconstitutional viewpoint discrimination. A loosely run banner program, with applications in and banners up, is Boston’s flagpole on a utility pole.
Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), states the rule the City will try to escape and cannot. The University funded secular student journals but refused a religious one. The Court struck the refusal down: once the government opens a forum for a subject, it may not exclude a viewpoint within it. The City will cite cases like this for the proposition that it may draw category lines: “veterans” as a subject. But Rosenberger is not authority that category lines are always permissible. It is authority that a government may not disguise viewpoint discrimination as a neutral category limit. If the banners are private speech in a forum, the City may not refuse the resident who calls her environmental work a life of service, or the pacifist who calls his refusal to bear arms the truest service of all, without doing exactly what Rosenberger forbids.
“It is only a subject limit” fails on its own terms
The City’s last refuge is to insist that limiting the program to military veterans is a mere subject-matter limit, not a viewpoint choice. Reed v. Town of Gilbert, 576 U.S. 155 (2015), closes that exit. A law that is content-based on its face, one that “singles out specific subject matter,” is subject to strict scrutiny “regardless of benign motive,” and the First Amendment’s hostility to content regulation “extends to a prohibition of public discussion of an entire topic.” Few such regulations survive. A program defined by whose devotion the City has judged worthy of public honor is content-based on its face, and worse than that: because the subject it selects is not neutral subject matter but a judgment of worth, the content limit cannot be drawn without becoming viewpoint discrimination in substance. “Honor” is not a subject the way “traffic” or “zoning” is. To choose it is to choose a side. The line may be lawful as a line; it is not neutral, because the thing being lined is esteem itself.
The captive audience: an aggravating factor, honestly stated
These banners are not seen and forgotten. They are installed along the corridors a resident must travel, renewed year upon year, until no daily route escapes them. The Court has long recognized a constitutional concern with messages imposed on those who cannot escape them. Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), invoked the captive-audience principle to let a city keep unwanted political advertising out of its transit cars. That case arose in a nonpublic forum and concerned the government’s power to restrict, not a citizen’s power to object. But the principle it rests on, that the State should not force a message upon those who cannot reasonably look away, applies with unusual force to a tribute the City bolts along every street its residents must use. This does not by itself make the program unlawful. It magnifies the injury once the viewpoint defect is shown: the unconstitutional message is not merely displayed; it is made inescapable.
The City’s own sign code makes it the gatekeeper, not a bystander
What follows is how the City’s own ordinance reads, and the text is plain enough. The City’s sign code forbids what this program proposes, and then routes the exception through a City official’s discretion. Section 250-19 provides that “no ground sign, pole sign or temporary sign shall be erected or placed on the public street, sidewalk or within any public right-of-way, except as provided in § 250-29C.” A banner is a temporary sign by the code’s own definition. And § 250-29C(1) supplies the only exception: a banner may cross a public street when “the City Manager may, in his discretion, permit” a “bona fide civic, charitable or religious organization to publicize a civic, charitable or religious event.”
Read what that means for the claim that the City merely hosts a private tribute. It cannot. No banner reaches a Newburgh right-of-way without an affirmative, discretionary act by a named City official. The City is not a bystander to private speech on private poles; it is the gatekeeper, deciding case by case what hangs over the public way. That is the end of “the City has no involvement.”
It is also the beginning of a different problem. As written, the program may not even fit the exception: Hometown Heroes banners honor individuals for a season; they do not publicize a civic organization’s event. To run the program at all, the City would likely have to stretch that discretion past its terms or amend the code outright. Either way, it is an affirmative act the City owns. And a discretionary permit power over expression in a public forum carries its own constitutional hazard. A licensing scheme that lets an official decide, case by case and without narrow, objective standards, what speech may occupy public space is the classic shape of a prior restraint. If the City Manager’s discretion is standardless, that is a defect in itself; if it is exercised according to the message, this honoree yes, that one no, it is viewpoint discrimination. I raise this as a question, not a verdict, but it is the City’s question to answer, not mine.
And the discretion cannot be saved by exercising it against the applicants a community would find repugnant. That is the settled lesson of the Skokie litigation, in which a village that was home to survivors of the Holocaust could not lawfully bar a neo-Nazi group from marching; the courts that reviewed it (Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978); see National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977)) held that government may not deny a public forum because the viewpoint is hateful or the audience is wounded by it. A discretionary permit in a public forum admits the odious applicant or it discriminates by viewpoint. There is no third path. If § 250-29C lets a civic organization publicize its event on a public pole, the City cannot grant that to the honorees it likes and deny it to those it cannot stomach, not without doing the very thing the First Amendment forbids.
The poles do not matter
One escape route has to be closed before the real question can be reached. The City may note that the poles belong to Central Hudson, not to it. That changes nothing. The constitutional question is never who owns the surface; it is who chooses the message. Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 (1995), holds that an entity created and controlled by the government to carry out governmental objectives is part of the government for purposes of the First Amendment, and cannot escape constitutional obligation by virtue of a private corporate form. If the City adopts this program and decides whose service is honored, the City is the speaker, whatever the title to the pole. It does not shed the First Amendment by hanging its choice on a utility’s hardware. But that settles only who the speaker is. It does not decide whether the speech is lawful. And that question, the one the detour was meant to avoid, is still waiting.
The trap, stated once more
The City must choose. If the banners are its speech, it has conceded the endorsement it denied. If they are a forum, it cannot exclude the viewpoints it would need to exclude in order to keep the program palatable. If it calls the limit a mere subject, strict scrutiny follows and the limit is not neutral, because honor is not a subject. And whichever it chooses, the message is made inescapable to every resident, on poles the City cannot disown by pointing to the utility. There is no configuration of this program that is at once lawful, selective, and neutral. The City may have any two. The Constitution forbids the third.
And consider what winning would require. Suppose the City litigates, and prevails. It can prevail on only one ground: that the banners are its own speech, government speech, the city endorsing, by its own choice, the people it has selected and the values they stand for. That is the winning argument, and it is the only one. Which means the City could win this case only by standing up in open court and declaring the very thing it told the public it was not doing: that the program is not neutral, that it is an endorsement, that the government chose whose service the public would be made to honor. The victory would be the confession. There is no version of success here that is not also an admission. And the admission is the one this series began by making.
That is the argument as I imagine a court might hear it. I would rather the Council never put it to the test, not because the argument is weak, but because the simplest and least costly course in time, effort and money remains the one I urged yesterday: do not begin.
Table of Authorities
Iancu v. Brunetti, 588 U.S. 388 (2019)
Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 (1995)
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)
Matal v. Tam, 582 U.S. 218 (2017)
Pleasant Grove City v. Summum, 555 U.S. 460 (2009)
Reed v. Town of Gilbert, 576 U.S. 155 (2015)
Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995)
Shurtleff v. City of Boston, 596 U.S. 243 (2022)
Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S. 200 (2015)
Next: Banners over our streets, or roofs over their heads? What does honor really look like?
