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The First Amendment limits how Michigan municipalities and townships may regulate private speech, but it does not limit their own speech. This means municipalities and townships are constitutionally free to decide the messages they wish to convey and the viewpoints they choose to express through their official channels and on their own property. Complications arise, however, when municipalities—intentionally or inadvertently—use those same platforms to allow private citizens to speak. Once a municipality opens its property for private expression, it creates a forum for public discourse and triggers the protections of the First Amendment. From that point forward, the municipality is subject to constitutional scrutiny. This E-Letter examines the line that separates government speech from spaces for private expression—and explains why drawing that line clearly is essential for every municipality.

Introduction

Have you ever wondered what happens when a municipality speaks in favor of a particular viewpoint? It’s common to hear elected officials say the government can’t take sides because of the First Amendment. That’s not quite right. In fact, it’s a necessary part of governing for officials to communicate what they believe and to express specific viewpoints. The First Amendment doesn’t restrict that—because it doesn’t apply to government speech. But does that mean municipalities have unlimited freedom to speak? Not exactly. When government speech—intentionally or inadvertently—creates a platform for private expression, the rules change. Once private speech enters the picture, the First Amendment applies, and municipalities must remain viewpoint neutral. This E-Letter explains why municipalities can lawfully engage in viewpoint-based speech and how to preserve that authority through clear, consistent policies and practices. Understanding where government speech ends and private expression begins is crucial—it’s the difference between speaking with your own voice and hosting a conversation you can no longer control.

Government Speech

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Free Speech Clause—“Congress shall make no law … abridging the freedom of speech”—protects a wide range of expression by private individuals and applies to state and local governments through the Fourteenth Amendment. See Manhattan Cmty Access Corp v Halleck, 587 U.S. 802, 808 (2019).

However, the Free Speech Clause does not regulate government speech. Shurtleff v City of Boston, 596 U.S. 243, 252 (2022). The reason is practical: “When the government wishes to state an opinion, to speak for the community, to formulate policies, or to implement programs, it naturally chooses what to say and what not to say.” Without that flexibility, government could not function effectively: “Were the Free Speech Clause interpreted otherwise, ‘it is not easy to imagine how government would function.’” Walker v Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207–208 (2015).

Simply put, while municipalities are generally restricted from regulating private speech based on content or viewpoint, they are free to express their own viewpoints through government speech. That’s why a municipality can congratulate its local high school for winning a state championship without also expressing disappointment on behalf of rival schools. You get the point. But what exactly counts as government speech?

Government speech is “the purposeful communication of a governmentally determined message by a person exercising a power to speak for a government.” Kennedy v Benson, 119 F.4th 464 (2024) (quoting Shurtleff, 596 U.S. at 268). Courts generally consider three factors when distinguishing private speech from government speech: (1) the extent to which the government actively shaped or controlled the expression; (2) the history of the expression; and (3) the likely public perception as to the speaker’s identity. Id.

The control factor examines how much the municipality has shaped or directed the message. When a municipality drafts a press release, adopts a resolution, or commissions a memorial with specific language, it clearly controls the message—this is government speech. By contrast, when a municipality allows private parties to post their own messages on government property with little oversight or editing, that control diminishes. Simply providing space or resources for others to speak does not transform those private messages into government speech—just as the Patent Office’s approval of trademarks doesn’t make “Nike” or “Apple” government trademarks. The key question is whether the municipality authored the message or merely facilitated someone else’s expression.

History and public perception often work together. The history factor asks whether the medium has traditionally been used for government communication—such as monuments in public parks or official social media accounts. But even a traditionally governmental medium can become a forum for private expression if the municipality opens it up. For example, a bulletin board at city hall might once have displayed only official notices, but if it begins to accept community announcements from local organizations, that practice changes its character. What matters most is how the municipality uses the platform, and how the public perceives that use: do observers believe the municipality is speaking, or merely providing space for others? The answer determines whether First Amendment scrutiny applies.

Ultimately, deciding whether speech qualifies as government speech is a fact-intensive inquiry. But understanding how courts apply the three-factor test helps municipalities recognize which of their actions fall on which side of the line.

The Blurred Line

Up to this point, the concept seems simple enough: municipalities are free to express their own viewpoints because government speech isn’t subject to the Free Speech Clause. Want to fly a political flag, pass a resolution supporting a cause, or build a monument? Go right ahead—no need to worry about viewpoint or content neutrality. But municipalities must take care to ensure they are truly engaged in government speech when doing so.

This is because the United States Supreme Court has explained that the “government speech doctrine” is “susceptible to dangerous misuse” because private speech can be at times “passed off as government speech by simply affixing a government seal of approval,” thereby muffling the expression of “disfavored viewpoints.” Matal v Tam, 582 U.S. 218, 235 (2017).

In other words, a municipality can inadvertently create a forum for private expression while believing it is merely speaking for itself. When that happens, the First Amendment applies—and viewpoint discrimination becomes unconstitutional.

So when does this become a problem? It arises when government actions—intentionally or not—allow private citizens to speak. Two Supreme Court cases illustrate just how easily that line can blur.

Start with the Shurtleff v City of Boston case. Boston had three flagpoles outside city hall. Two flew the American and Massachusetts flags. The third usually displayed Boston’s city flag, but here’s where it gets interesting: Boston also let private groups raise their own flags during ceremonies. And they were generous about it—flags from various countries, the Pride Flag, banners honoring emergency workers. Over a dozen years, Boston approved 284 requests without saying no once. Boston likely thought it was simply choosing which messages to endorse as its own speech. But then Harold Shurtleff asked to fly a Christian flag, and Boston refused. The Supreme Court said Boston had crossed the line. By allowing all those other private flags without clear standards or control over the messages, Boston had created a forum for private expression. Once that forum existed, rejecting the Christian flag based on its religious viewpoint violated the Free Speech Clause. Boston couldn’t pick and choose viewpoints anymore.

Compare this with the Walker v Texas Division, Sons of Confederate Veterans case. Texas offered specialty license plates with different designs and messages—Boy Scouts, universities, fraternities, you name it. The Sons of Confederate Veterans wanted a plate with a Confederate battle flag. Texas said no. The Supreme Court ruled differently here: this was government speech. Because Texas was speaking through those plate designs, it could pick and choose which messages to convey. No First Amendment problem.

See the difference? Both cases involved government property—flagpoles and license plates—where private parties wanted to communicate. Both required the Supreme Court to answer the same question: is the government speaking, or has it created a space for private voices? The outcomes turned entirely on how each government had set up and run its program, and that is the blurred line between government speech and private expression in public forums.

Unblurring the Line

So how can municipalities maintain clarity about when they’re speaking? The key is ensuring that when the government speaks, it’s unmistakably clear that the government—not private citizens—is the one doing the speaking.

The Supreme Court’s decision in Shurtleff offers helpful guidance on this point, particularly regarding flag policies. The Court explained that a city “could easily have done more to make clear it wished to speak for itself” by adopting a written policy stating that its flagpoles were “not intended to serve as a forum for free expression by the public,” and by listing the approved messages that may be displayed “as an expression of the City’s official sentiments.”

In short: put it in writing, be specific about what you’re saying, and make it clear you’re not opening the door to private voices. Without that clarity, municipalities risk creating an implied forum for private expression. And once that forum exists, everything changes—the First Amendment kicks in.

Our best practices in this respect can be summarized as follows:

• Adopt Written Policies: Establish formal policies explicitly stating that the space, medium, or program is reserved for government speech and is not intended as a forum for private expression. List the specific messages or categories of expression the municipality intends to convey and maintain discretion.
• Maintain Active Control: Ensure the municipality authors, selects, or substantively reviews and approves the content of all messages. Avoid merely rubber-stamping private submissions.
• Be Consistent: Maintain a clear pattern of government-only messaging on the medium in question. A history of approving diverse private requests undermines the government speech defense.
• Make Attribution Clear: Ensure messages are clearly identifiable as government speech through official authorization, township seals, board resolutions, or explicit statements that the content reflects the municipality’s official position.

Following these practices helps preserve a municipality’s ability to communicate its own viewpoints without being compelled to accommodate every private message that comes its way.

Once the Line is Crossed

Before concluding, it is important to address what happens when a municipality crosses the line from speaking for itself to allowing private expression. Once that occurs, the municipality is no longer engaged in government speech—it has created a forum for private speech, and the First Amendment applies.

In most cases, that forum will be treated as a designated public forum, because the government has intentionally (or through consistent practice) opened its property for expressive use. Cornelius v. NAACP Legal Defense & Educational Fund, 473 US 788, 800 (1985); Kincaid v. Gibson, 236 F3d 342, 348 (6th Cir. 2001).

In a designated public forum, the government is bound by nearly the same rules that apply in traditional public spaces such as streets and parks. It may not restrict expression based on the content or message of speech unless the restriction is narrowly tailored to serve a compelling governmental interest. Reed v. Town of Gilbert, 576 US 155, 171 (2015). What municipalities and townships can do is adopt content-neutral rules—regulating the time, place, and manner of expression—so long as those rules serve a significant governmental interest and leave open ample alternative channels for communication. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 US 37, 45 (1983).

The distinction between content and viewpoint neutrality is central. A content-neutral policy governs how expression occurs—through time limits, location rules, or permit systems—without regard to the topic being discussed. A viewpoint-neutral policy ensures the municipality does not favor one perspective over another on the same topic. Thus, a township that permits advocacy for environmental protection cannot exclude messages critical of those same policies. As the United States Supreme Court put it, viewpoint discrimination is “an egregious form of content discrimination” that is virtually never constitutional. Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 US 819, 829 (1995).

In summary, once private expression is permitted on government property, municipalities should assume they have created a designated or limited public forum. Policies should then regulate how speech occurs and must never discriminate based on viewpoint. Clear, evenhanded rules on scheduling, duration, and safety preserve order while ensuring compliance with the First Amendment’s most fundamental promise: that the government must remain neutral in the marketplace of ideas.

Conclusion

This E-Letter has explained why municipalities are free to express their own viewpoints through government speech. But when that expression opens the door for private participation, the First Amendment applies. At that point, the municipality is no longer the speaker—it is the host of a public forum—and its regulations must be reasonable, content-neutral, and viewpoint-neutral. Clear policies and consistent practices help ensure that municipalities can speak with their own voice when they choose to, while maintaining the neutrality required when they open a space for others to speak.

By: David Szymanksi

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.