WASHINGTON, D.C. — In a move that could lead to a dangerous expansion of the “government speech” doctrine in order to limit any speech that occurs on government property, the U.S. Supreme Court has refused to review a federal appeals court ruling that places highway rest areas off limits for First Amendment activities. In refusing to hear the case of Vista-Graphics v. Virginia Dept. of Transportation, the Supreme Court let stand a decision allowing the Virginia Department of Transportation (VDOT) to restrict the content of privately authored, illustrated, printed and funded travel guides distributed at highway rest areas and welcome centers. The Rutherford Institute filed an amicus curiae brief in the case, warning that First Amendment activities in public places would be endangered if the government were allowed to expand its “government speech” doctrine under the guise of regulating the content of travel guides.
“Virginia’s attempt to restrict First Amendment protected expression, including speech that is political and religious in nature, under the guise of the government speech doctrine represents a dangerous expansion of that doctrine that threatens any private speech occurring in public places,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Not all speech occurring in or around government land, offices, or employees can be and should be considered government speech. Virginia may claim to be for lovers, but it is clearly not for free speech.”
Virginia operates 41 rest areas and welcome centers along the interstate and U.S. highways traversing the state, offering the traveling public services and information about Virginia attractions. Vista-Graphics is a publisher of travel guides, including the Virginia Beach Visitors Guide, GoWilliamsburg Visitors Guide, and Virginia Guide, which provide a variety of information to tourists, including maps, area overviews, listing of lodging options, restaurants, attractions and other services. Until 2012, Vista-Graphics and other businesses and localities distributed travel guides and other information free of charge at welcome centers and rest areas operated by VDOT in accordance with a state regulation recognizing that distribution of these materials is protected by the First Amendment. That year, however, VDOT adopted a program that began charging publishers such as Vista-Graphics a fee in order to distribute travel guides and other information at welcome centers and rest areas. Thereafter, VDOT adopted regulations that prohibited the distribution at these areas of materials that could be considered political or religious, or that would rate travel attractions, events or accommodations.
Vista-Graphics challenged the constitutionality of the fees and regulations in court, asserting they violated the First Amendment. However, the lower courts ruled that the regulations and fees were not subject to challenge because information distributed at welcome centers and rest areas constitutes speech by the government, not individuals, and Virginia could control that speech as it sees fit. In asking the U.S. Supreme Court to hear the case, The Rutherford Institute pointed out that travel guides have historically been considered private speech, and the guides at issue in this case are paid for, printed and distributed by private entities like Vista-Graphics.