Reaffirming Government Speech in Ballot Titling: Tenth Circuit Upholds Colorado's Fiscal Transparency Act

Introduction

In the landmark case of ADVANCE COLORADO, et al. v. JENA GRISWOLD, in her official capacity as Secretary of State of Colorado (99 F.4th 1234), the United States Court of Appeals for the Tenth Circuit addressed significant issues surrounding the intersection of government regulation and political speech. The plaintiffs, Advance Colorado and several individual appellants, challenged the constitutionality of Colorado's Ballot Measure Fiscal Transparency Act (“HB 21-1321”). Specifically, they contended that the Act unconstitutionally compelled their political speech by mandating certain language in the titles of citizen-initiated ballot measures that involve tax changes. The key issue revolved around whether these titling requirements infringed upon the First Amendment rights of the appellants by forcing them to include government-prescribed language in their ballot titles.

Summary of the Judgment

The Tenth Circuit Court reviewed the district court's decision denying Advance Colorado's motion for a preliminary injunction against HB 21-1321. The appellate court affirmed the district court's ruling, determining that the ballot titling process under HB 21-1321 constitutes government speech rather than private speech. Consequently, the Court held that the requirements imposed by HB 21-1321 do not amount to a violation of the First Amendment's free speech protections. Advance Colorado's claims that the Act compelled their political speech were dismissed, and the efforts to prevent the implementation of HB 21-1321 through a preliminary injunction were unsuccessful.

Analysis

Precedents Cited

The Court heavily relied on precedents that delineate the boundary between government speech and private speech. Central to its analysis was Shurtleff v. City of Bos. (596 U.S. 243, 252 (2022)), where the Supreme Court emphasized a holistic approach to determining whether speech constitutes government expression. Additionally, the Court referenced Walker v. Texas Div., Sons of Confederate Veterans, Inc. (576 U.S. 200, 217 (2015)) and VDARE Found. v. City of Colorado Springs (11 F.4th 1151, 1170 (10th Cir. 2021)), which underscored that certain governmental functions, such as ballot titling and specialty license plates, are forms of government speech and thus exempt from First Amendment scrutiny. These cases collectively informed the Court's stance that Colorado's titling process is a function of government speech, not private citizen advocacy.

Legal Reasoning

The Court engaged in a detailed examination using the framework established in Shurtleff, which involves evaluating the history of the expression, the public's perception of the speaker, and the extent of government control over the expression. It was found that Colorado's Title Board has a longstanding tradition—over eighty years—of exclusively crafting ballot titles without input from proposal sponsors. This historical context demonstrated substantial governmental control and a clear intent to present a standardized, unbiased titling process to voters.

Furthermore, the presence of a clear disclaimer stating that the ballot title is "designated and fixed by the Initiative Title Setting Review Board" reinforced the notion that the titles are government-generated and not the personal expressions of the ballot measure proponents. The Court also addressed and dismissed Advance Colorado's attempts to analogize this situation to other contexts of government regulation on political or commercial speech, emphasizing that such analogies were inapplicable given the pure government speech nature of the ballot titling process.

Additionally, the Court noted that even if the Ballot Measure Fiscal Transparency Act imposed misleading language, it does not alter the fundamental classification of the speech as government-controlled. The separate statutory appeal process for disputed titles further mitigated concerns about compelled private speech, as it provided a mechanism for addressing any substantive unfairness in titling.

Impact

This judgment significantly reinforces the government's authority to regulate and standardize ballot measure titles without infringing upon individuals' First Amendment rights. By classifying ballot titling as government speech, the decision curtails the ability of proponents to challenge titling requirements on the grounds of compelled speech. This precedent ensures that states like Colorado can maintain a controlled and uniform process for presenting ballot measures, potentially affecting future cases where the delineation between government and private speech is contested in similar contexts.

Moreover, the affirmation sets a clear standard for courts in evaluating compelled speech claims within the framework of government-sponsored processes. It highlights the importance of historical practices and the explicit control of the government over certain communicative functions in determining the applicability of First Amendment protections.

Complex Concepts Simplified

Government Speech vs. Private Speech

Government Speech: Communication emanating directly from government entities, representing the government's own viewpoints and policies. It is not subject to First Amendment free speech challenges because it is not private expression.

Private Speech: Expressions of individuals or private entities that are not controlled by the government. Such speech is protected under the First Amendment from government interference or compulsion.

The key issue in this case was determining whether the language requirements for ballot measure titles were considered government speech, which would allow the government to set those requirements, or private speech, which would mean imposing such requirements could infringe on free speech rights.

Preliminary Injunction

A preliminary injunction is a temporary court order that prevents a party from taking a particular action until a final decision is made in the case. Advance Colorado sought such an injunction to stop the implementation of HB 21-1321's titling requirements before the matter was fully decided.

Compelled Speech

Compelled Speech: Occurs when the government forces individuals or organizations to express certain messages or adhere to specific language, thereby infringing on their freedom of speech. The plaintiffs argued that HB 21-1321 compelled them to include government-prescribed language in their ballot titles, violating their First Amendment rights.

Conclusion

The Tenth Circuit's affirmation of the district court's denial of the preliminary injunction in Advance Colorado v. Griswold underscores the robust nature of government speech protections in the context of ballot measure titling. By classifying the titling process as government speech, the Court effectively shielded HB 21-1321 from First Amendment challenges posed by Advance Colorado. This decision not only reinforces the authority of governmental bodies to regulate and standardize ballot measures but also delineates clear boundaries between government-controlled communication and private speech. The judgment serves as a pivotal reference point for future cases involving the regulation of political speech within structured governmental processes, ensuring that the state's interest in maintaining clarity and transparency in ballot measures is upheld without infringing upon constitutional protections.