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 play one in art galleries. 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 take my best shot at showing how the cases the City would reach for might put it in a bind.
The two questions, and the trap between them
Every banner program of this kind is one of two things, and the City must choose. Either the banners are the City’s own speech, or they are private speech in a forum the City has opened. There is no third category. Call them government speech, and the City has admitted the endorsement it denied. Call them a forum, and it cannot keep out the viewpoints it built the program to exclude.
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 as its official municipal viewpoint, 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. As the plurality put it, “giving offense is a viewpoint”; and as Justice Kennedy wrote, concurring, “a subject that is first defined by content and then regulated or censored 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
The code offers the City only two doors into the right-of-way, and both are affirmative acts of its own. Under § 250-29C(1), the City Manager may, in his discretion, permit a banner across a public street for a civic, charitable or religious event — a poor fit twice over, since Hometown Heroes banners hang vertically on poles rather than across the street, and honor individuals rather than publicize an organization’s event. Or, under § 250-16(H), the City Council may approve “temporary… nonadvertising signs,” exempting them from the chapter altogether. But that second door is the worse one for the City: § 250-16(H) groups such signs with “traffic or other municipal signs” and “legal notices” — governmental signage — so to pass through it the Council must classify these banners as municipal signs, alongside traffic signs and legal notices, which is to adopt them as the City’s own. The City cannot reach the utility pole without either the Manager’s discretion or the Council’s approval. It is the gatekeeper on every path, and on one of them it becomes the speaker.
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 act by the City — the Manager’s permit or the Council’s approval. The City is not a bystander to private speech on private utility poles; it is the gatekeeper, deciding 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. 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.
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 utility 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 utility poles belong to Central Hudson, not to it. That changes nothing. The constitutional question is never who owns the property and the hardware; 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 utility 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.
And consider what winning would require. I have argued that a selective program run as a forum cannot survive, because the line it draws — military service, and no other devotion — is viewpoint discrimination wearing the costume of a subject limit. If that argument holds, the City is left with only one lawful way to keep the program and keep it selective: to call the banners its own speech. Government speech. The city endorsing, by its own choice, the people it has selected and the values they stand for. Which means that, on the argument I have made, the City could win only by standing up in open court and declaring the very thing it told the public it was not doing…
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.
DEVELOPING:
Well, there it is.
Thanks to the legal sleuthing of a lawyer friend and colleague of mine, I have now learned, in the nick of time, that the “question not yet put” has in fact been put. The legal questions at the center of this essay are not hypothetical.
Five months ago, on February 5, 2026, a petition was filed in New York State Supreme Court, Essex County — Lawrence v. Town of Willsboro Town Board, Index No. CV26-0080 — challenging a Hometown Heroes banner program on some of the ground argued here.
The petitioner contends that the Town of Willsboro “created and opened a public forum” when it hung hometown heroes banners on utility poles on town property. He further argues that, having opened that forum, the Town of Willsboro may not restrict who speaks in it.
Denied a banner for a grandfather who was neither resident nor graduate, he did not, however, ask the Town to stop being viewpoint preferential. He asked it to choose a different viewpoint — to adopt, or be compelled by a court to vote on, a banner program of his own design, with his own viewpoint preferences: honorees must be honored “for a positive reason,” no banner may carry “partisan political propaganda,” and, set down in black and white in paragraph thirty-three, no banner may contain anything in “contradiction of Christian values.” He invokes the public forum, the doctrine that a government which opens its property to private speech must be viewpoint neutral, in order to instead install another set of viewpoint preferences.
And, the Town’s answer so far is one that I suggested that Newburgh might try to give: the criteria belong to a private sponsor, the American Legion, and that the program restricts no one’s rights.
That is the government-speech-versus-forum fork, now put to a New York court, 230 miles from this Council’s chamber.
I think this particular case is almost certainly a loser, so much so that one wonders how the firm representing the petitioner took the case at all.
But for Newburgh, that is not the point.
A town that wanted only to hang some banners now has a docket number, a caption, and counsel to retain. Someone must answer the petition, move to dismiss, appear, brief it — and the meter runs from the day of filing regardless of how weak the case is, because even a losing case must be made to go away, and making it go away is not free. The banner costs a few dollars of vinyl and grommets; the litigation it invites costs whatever the lawyers charge for however many billable hours it takes. Adopt this program and you issue a standing invitation to anyone with a grandfather, a grievance, and a filing fee to make you defend it on the public’s dime. That is money not spent housing the man asleep beneath a utility pole. In the Town of Willsboro, that invoice is already being written. The City of Newburgh can still decline to open that account.
In Part 1, I said that “Remarkably, but understandably, (the Hometown Hero Programs) have not been tested: who wants to fight a program honoring veterans?“ The dam is now broken. The Willsboro petition is the first. It will almost certainly not be the last.
© Newburgh Is America
I am a one-man band here — writer, editor, copy editor, fact-checker, legal consultant, publisher and moderator wrapped into one, publishing within a time line that is compressed from the weeks or even months of what is normally allowed for long-form investigative writing into sometimes as little as a few days. Errors and omissions are inevitable in work produced under these conditions. I rely on an informed public to identify them, and where they are identified, the record is corrected. This piece reflects my best understanding at the time of publication and is subject to revision as additional information becomes available.
Furthermore, there was no video and there are still no minutes of this meeting. As I was speaking myself, I was not taking my own notes, I was preparing for my turn. This is from memory.
Table of Authorities
— Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978)
— 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)
— National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977)
— 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)
Ordinances
City of Newburgh, N.Y., Code § 250-16(H) (exempt signs); § 250-19 (signs in public rights-of-way restricted); § 250-29C (temporary signs; City Manager permit).
Next:
Part Three: Banners Over Our Streets, Or Roofs Over Their Heads?
What does honor and obligation really look like?
Part Four: Coda
Back into the thorny thicket
Previous:
What the Hometown Heroes campaign asks a city to decide
