Page v. Lexington County School District One

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

RANDALL S. PAGE, 
Plaintiff-Appellant,
v.
LEXINGTON COUNTY SCHOOL DISTRICT
ONE,
Defendant-Appellee.

VIRGINIA SCHOOL BOARDS
ASSOCIATION; SOUTH CAROLINA
SCHOOL BOARD ASSOCIATION; NORTH
CAROLINA SCHOOL BOARDS  No. 07-1697
ASSOCIATION; MARYLAND
ASSOCIATION OF BOARDS OF
EDUCATION; NATIONAL SCHOOL
BOARDS ASSOCIATION; NATIONAL
SCHOOL PUBLIC RELATIONS
ASSOCIATION; NATIONAL PARENT
TEACHER ASSOCIATION; NATIONAL
LEAGUE OF CITIES; AMERICAN
ASSOCIATION OF SCHOOL
ADMINISTRATORS,
Amici Supporting Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(3:06-cv-00249-CMC)

Argued: March 20, 2008

Decided: June 23, 2008
2 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
Before WILLIAMS, Chief Judge, and NIEMEYER
and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Chief Judge Williams and Judge Duncan joined.

COUNSEL

ARGUED: Kevin Alan Hall, NELSON, MULLINS, RILEY &
SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appellant.
David Thomas Duff, DUFF, WHITE & TURNER, L.L.C., Columbia,
South Carolina, for Appellee. ON BRIEF: Karl S. Bowers, Jr., Wil-
liam C. Wood, Jr., M. Todd Carroll, NELSON, MULLINS, RILEY
& SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appel-
lant. Breon C. M. Walker, DUFF, WHITE & TURNER, L.L.C.,
Columbia, South Carolina; Maree F. Sneed, Audrey J. Anderson,
Joshua I. Civin, HOGAN & HARTSON, L.L.P., Washington, D.C.,
for Appellee. Helen L. Norton, Associate Professor of Law, UNI-
VERSITY OF COLORADO SCHOOL OF LAW, Boulder, Colorado;
Kenneth L. Childs, John M. Reagle, CHILDS & HALLIGAN, P.A.,
Columbia, South Carolina; Francisco M. Negrón, Jr., General Coun-
sel, NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria,
Virginia, for Amici Supporting Appellee.

OPINION

NIEMEYER, Circuit Judge:

Lexington County School District One, a "body politic and corpo-
rate" under South Carolina law, used its website, e-mail, and other
forms of communication to urge opposition to the Put Parents In
Charge Act, a bill pending in the South Carolina legislature that pro-
posed tax credits for private and home schooling. The School District
believed that the bill, if enacted, would tend to undermine public edu-
cation. Randall Page, who favored the bill, requested "equal access"
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 3
to the School District’s "informational distribution system" to present
his own message in support of the bill. When the School District
refused his request, he commenced this action, claiming that the
School District’s refusal violated his First Amendment rights by dis-
criminating against his point of view.

On cross-motions for summary judgment, the district court entered
judgment in favor of the Lexington School District, concluding that
the School District’s campaign was largely "government speech" and
that the School District’s informational distribution system was not a
public forum to which Page was entitled access. We agree and
accordingly affirm.

I

The Board of Trustees of Lexington County School District One
unanimously passed a resolution on December 14, 2004, expressing
opposition to the Put Parents in Charge Act, a bill then pending in the
South Carolina General Assembly, and urging the members of the
Lexington County Legislative Delegation, as well as every member
of the South Carolina General Assembly, to vote against the bill. The
resolution noted that the Put Parents in Charge Act proposed tax cred-
its for private and parochial school tuition and home-schooling
expenses, which, the School District Board of Trustees believed,
would erode funding for public education and therefore would "un-
dermine[ ] the State’s commitment to ensure that all South Carolina
children enjoy the right to free, quality public education."

Following adoption of the resolution and in accordance with her
responsibility, Mary Beth Hill, the Director of School/Community
Relations for the School District, communicated the School District’s
position "through various channels to District committees and groups,
staff and students, school community in general, and the public at
large." Director Hill stated, "Since I am the District-level administra-
tor having overall responsibility for the content of the District’s web-
page and other means of communication, I am the person who
determines what materials are disseminated by the District to carry
forward the Board’s policy opposing school choice and [the Put Par-
ents in Charge Act]."
4 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
Under Director Hill’s instruction and supervision, the Lexington
School District included information about the Put Parents in Charge
Act on the "current issues" page of its website and stated its opposi-
tion to the bill. The page also contained links to documents related to
the bill found on other websites, as well as to the interactive websites
of two organizations opposed to the bill — "Choose Children First"
and the South Carolina School Boards Association. Hill testified that
she made the decision regarding which links to place on the School
District’s website, and she maintained the ability to delete any link on
the website at any time. Moreover, she explained, no organization
could request a link on the School District’s website. Rather, she uni-
laterally made the decisions on what links to include "based on what
is best for [the] children, what is best for the staff and students, what
are the Board’s goals for that year, and what are their legislative pri-
orities for that year."

Director Hill also utilized the School District’s e-mail facility to
communicate the School District’s opposition to the bill. She sent e-
mails to the School District’s Government Relations Committee and
to other School District employees. The Government Relations Com-
mittee was made up of one staff member and one external representa-
tive (a parent or area resident) for each school, and sometimes
included representatives unassociated with the schools. The e-mails
sometimes included information written by third parties, which Hill
explained was included or attached for the purpose of promoting the
School District’s message. But none of the persons who authored
incorporated materials had requested inclusion of his or her materials
and the decision to include them was Director Hill’s alone.

Finally, Director Hill circulated fact-sheets and opinion pieces to
schools in the district "to convey the Board’s message." These materi-
als included a reprint of an article entitled "Who Will Speak Up for
Public Schools?" by Dr. Jim Ray, who was not a School District
employee. The article was generally anti-tax-credit and anti-school-
voucher in sentiment. The principals of two schools receiving the arti-
cle included it in their newsletters that were sent home to students and
parents. Director Hill again made clear that it was she who decided
to circulate Dr. Ray’s article, and not Dr. Ray or some third person.

On March 1, 2005, Randall Page, a citizen and resident of Lexing-
ton County who supported the Put Parents in Charge Act, sent a letter
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 5
to the Lexington School District expressing the fact that he was "most
disturbed" to see not only that the School District maintained infor-
mation on its website critical of the Put Parents in Charge Act but also
that four schools in the district had distributed materials to their stu-
dents and sent e-mails to faculty and staff which were critical of the
bill. He then stated:

It is most distressing to see that district time, resources and
manpower were used in a way to attempt to affect legisla-
tion pending in the South Carolina General Assembly, pre-
senting a one-sided view of the debate. I am hereby
requesting that Lexington School District One permit equal
access to present the other side of Put Parents in Charge to
the district’s parents and faculty/staff by making available
the same distribution method and resources. I have materi-
als, ready for distribution, to present the opposing view-
point. I simply need equal access to the distribution system
which has already been provided to those opposing the Gov-
ernor’s initiative.

(Emphasis added).

Two weeks later, the Lexington School District’s Superintendent
responded to Page’s letter, telling him that "[i]t is the official position
of this district, as well as every other school district in South Carolina
that I am familiar with, to oppose the Put Parents in Charge bill
because we believe such legislation is not in the best interest of public
education, specifically, or the State, in general." The letter continued:

Our activities in opposition to Put Parents in Charge are not
improper; nor has our dissemination of information or distri-
bution of materials created a right of "equal access" to our
informational distribution system for you to present your
views in support of the bill. The District does not permit the
distribution of any type of outside information or materials
which do not directly promote educational, recreational or
cultural activities that would be of interest to students or
their parents. Therefore, your request for equal access must
be denied.
6 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
Page commenced this action under 42 U.S.C. § 1983 for a declara-
tory judgment that the Lexington School District’s denial of access
violated his First Amendment rights and an injunction requiring the
School District to comply with Page’s request for "equal access to
present his viewpoint on school choice in each of the public fora
established by the Defendant." He alleged in his complaint:

By disseminating varying opinions from non-District
employees via its e-mail system, website, facsimile
machines, and newsletters, the District has created and has
continuously maintained public fora, within the meaning of
the case law interpreting the First Amendment.

Under the First Amendment, the District may not abridge
freedoms of expression of citizens in the District by discrim-
inating against speech on subjects otherwise permissible in
its public fora on the basis of the viewpoints expressed by
that speech. The First Amendment forbids the District from
regulating speech in public fora in ways that favor some
conflicting viewpoints or ideas at the expense of others.

On cross-motions for summary judgment, the district court entered
judgment in favor of the Lexington School District, finding that the
School District did not create a forum for speech to which Page was
entitled access and that the School District’s activities were largely
government speech wholly controlled by the School District.

From the district court’s judgment, dated July 20, 2007, Page now
appeals, arguing (1) that the "government speech doctrine" should not
apply to speech in opposition to legislation; (2) that the speech here
was not "government speech"; and (3) that the district court erred in
finding that no forum for discussion was created to which Page was
denied a right to equal access.

II

As an overarching position, Page asserts that Lexington County
School District One engaged in impermissible viewpoint discrimina-
tion, in violation of the First Amendment, when it denied his request
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 7
for equal access to the "informational distribution system" that the
School District used to disseminate its opposition to the Put Parents
in Charge Act so that he could express his support of the bill. The
School District agrees that it denied Page access to the channels of
communication that it used to disseminate its opposition to the bill,
but it asserts that those channels were dedicated to the School Dis-
trict’s own speech and were not public forums to which private speak-
ers were invited.

The School District’s success in this case — based on the conten-
tions of the parties — thus depends on whether its communications
about its opposition to the Put Parents in Charge Act were govern-
ment speech or whether the School District used its channels of com-
munication to disseminate the viewpoints of private speakers against
the Put Parents in Charge Act to the exclusion of private speakers in
favor of the bill, thus discriminating in a limited public forum based
on the speaker’s viewpoint. Accordingly, we begin by addressing two
connected questions: (1) whether the Lexington School District’s
campaign against the Put Parents in Charge Act was "government
speech," and (2) whether the School District created a limited public
forum, by inviting private speech to be expressed through its commu-
nications channels, to which Page was entitled access.

At the outset, we restate what is well established — that "the Gov-
ernment’s own speech . . . is exempt from First Amendment scrutiny."
Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005). This
observation arises from the well-understood role of government and
the scope of the First Amendment. Even though government is sup-
ported by the taxes of all, its policies are not supported by all. It fol-
lows therefore that the government may advocate in support of its
policies with speech that is not supported by all.

Compelled support of government — even those programs
of government one does not approve — is of course per-
fectly constitutional, as every taxpayer must attest. And
some government programs involve, or entirely consist of,
advocating a position. The government, as a general rule,
may support valid programs and policies by taxes or other
exactions binding on protesting parties. Within this broader
principle it seems inevitable that funds raised by the govern-
8 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
ment will be spent for speech and other expression to advo-
cate and defend its own policies.

Johanns, 544 U.S. at 559 (internal quotation marks omitted). Accord-
ingly, just as we accept that government may adopt policies for all of
the people, even if a policy is against the wishes of some, it may also
advocate in favor of those policies. That, however, does not suggest
that government can suppress opposing views. Its speech expressed
for itself is one thing, but its regulation of other persons’ speech is
another. It is the regulation of private speech and discrimination with
respect to private speech that are the appropriate subjects of First
Amendment challenges.

The First Amendment protects against any governmental activity
that abridges the "freedom of speech" of non-governmental persons,
but it does not regulate the government’s own policies or its speech
in support of them. Government speech "is, in the end, accountable
to the electorate and the political process for its advocacy." Bd. of
Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235
(2000). Thus, "[i]f the citizenry objects [to the viewpoint expressed
by the government], newly elected officials later could espouse some
different or contrary position." Id.; see also Sons of Confederate Vet-
erans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles, 288 F.3d 610,
618 (4th Cir. 2002).

Whether speech is government speech depends on the govern-
ment’s ownership and control of the message, and the government’s
ownership and control of the message may be determined from con-
sideration of various factors. We have identified factors such as (1)
the purpose of the program in which the speech occurs; (2) the "edito-
rial control exercised by the government" over the message; (3) the
identity of the person actually delivering the message; and (4) the per-
son "bear[ing] the ultimate responsibility for the content of the
speech." Planned Parenthood of S. C., Inc. v. Rose, 361 F.3d 786,
792-93 (4th Cir. 2004) (quoting Sons of Confederate Veterans, 288
F.3d at 618). After we identified these nonexclusive factors, the
Supreme Court issued its decision in Johanns, which distilled them,
particularly in cases involving the government’s use of third-party
messages, focusing on (1) the government’s establishment of the mes-
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 9
sage, and (2) its effective control over the content and dissemination
of the message. Johanns, 544 U.S. at 560-62.

In Johanns, the federal government adopted a policy of promoting
the consumption of beef and beef products, but to implement the pol-
icy, it adopted ad copy written by private parties in the beef industry.
Holding that the promotional campaign was nonetheless government
speech that was not subject to regulation by the First Amendment, the
Supreme Court explained:

The Secretary of Agriculture does not write ad copy him-
self. Rather, the Beef Board’s promotional campaigns are
designed by the Beef Board’s Operating Committee, only
half of whose members are Beef Board members appointed
by the Secretary. . . . Respondents contend that speech
whose content is effectively controlled by a nongovernmen-
tal entity . . . cannot be considered "government speech."
We need not address this contention, because we reject its
premise: The message of the promotional campaigns is
effectively controlled by the Federal Government itself.

The message set out in the beef promotions is from begin-
ning to end the message established by the Federal Govern-
ment. Congress has directed the implementation of a
"coordinated program" of promotion . . . . Congress and the
Secretary have also specified, in general terms, what the
promotional campaigns shall contain . . . . Thus, Congress
and the Secretary have set out the overarching message and
some of its elements, and they have left the development of
the remaining details to an entity whose members are
answerable to the Secretary (and in some cases appointed by
him as well).

Moreover, the record demonstrates that the Secretary
exercises final approval authority over every word used in
every promotional campaign. All proposed promotional
messages are reviewed by Department officials both for sub-
stance and for wording, and some proposals are rejected or
rewritten by the Department. . . .
10 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
***

When, as here, the government sets the overall message to
be communicated and approves every word that is dissemi-
nated, it is not precluded from relying on the government-
speech doctrine merely because it solicits assistance from
nongovernmental sources in developing specific messages.

Johanns, 544 U.S. at 560-62 (emphasis added) (footnotes omitted).

In this case, the Lexington School District Board of Trustees estab-
lished its message to oppose the Put Parents in Charge Act, adopting
the view in its December 2004 Board meeting that the proposal for
tax credits to private educators would divert public funds from public
education, undermining the State’s commitment to a free, quality pub-
lic education for all South Carolina children. And the Board
instructed its Director of School/Community Relations to communi-
cate its position through its various communications channels to gov-
ernment employees, legislators, students, and the public at large,
urging that the bill be voted down.

In carrying out her charge, the Director of School/Community
Relations employed the School District’s website, its e-mail facility,
and its distribution channels to constituent schools — all channels of
communications controlled by the School District. While the School
District did not create the full content of every communication — for
instance, it circulated an article written by Dr. Jim Ray, "Who Will
Speak Up for Public Schools?" — it adopted and approved all speech,
even that of third parties, as representative of its own position for
inclusion in its messages opposing the bill. Thus, it also controlled the
message.

In short, the nature of the School District’s speech in opposing the
Put Parents in Charge Act was strikingly analogous to the Secretary
of Agriculture’s speech in Johanns promoting the consumption of
beef. In both situations, the government established the message;
maintained control of its content; and controlled its dissemination to
the public. Moreover, in both situations, the form of the message was,
in part, adopted by the government from private sources.
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 11
III

Page does not challenge the applicable legal principles, nor does he
dispute the facts that the School District established its message and
disseminated it through channels of communication available to it.
But he contends that the School District did not maintain sufficient
control over its channels of communication to entitle it to deny him
access to them. He argues that private persons had access to those
channels of communication with the effect that the School District
created limited public forums to which he should have been given
access. Thus, even though the School District may have intended to
maintain control over its channels of communication, in Page’s view
it did not do so effectively and therefore created limited public forums
in which he too should have been able to express his views in support
of the Put Parents in Charge Act.

It is true that if the School District invited private speakers to use
the platform of its channels of communication to speak in opposition,
it could not then exclude private speakers who would speak in favor
of the bill. Allowing such access to some would create a limited pub-
lic forum in which the School District could not exclude speech based
on its viewpoint.

In Perry Education Association v. Perry Local Educators’ Associa-
tion, 460 U.S. 37, 46-49 (1983), the Supreme Court held that a school
district appropriately excluded persons from its internal mail system
because the school district’s internal mail system was a "nonpublic
forum." The school board policy did not grant general access but
instead required those desiring access to the system to obtain the
school principal’s permission prior to distributing materials. "[I]n a
nonpublic forum the government may employ a selective access pol-
icy in which individual non-ministerial judgments govern forum par-
ticipation . . . subject to . . . two limitations: the policy must be
reasonable and viewpoint neutral." Child Evangelism Fellowship of
Md., Inc. v. Montgomery County Pub. Schs., 457 F.3d 376, 383 (4th
Cir. 2006) (internal quotation marks omitted).

Distinct from a nonpublic forum is a limited public forum, which
is a place or channel of communication created "for use by the public
at large for assembly and speech, for use by certain speakers, or for
12 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
the discussion of certain subjects." Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 802 (1985); see also Child Evange-
lism Fellowship, 457 F.3d at 382 (defining a "limited public forum"
to exist where "the government creates a channel for a specific or lim-
ited type of expression where one did not previously exist"). In a lim-
ited public forum, "‘the State may be justified in reserving [its forum]
for certain groups or for the discussion of certain topics,’" but its
activities in limiting the forum "must be viewpoint neutral and rea-
sonable." Child Evangelism Fellowship, 457 F.3d at 382 (quoting
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001))
(alteration in original).

Page contends that the School District maintained inadequate con-
trol over each of the channels of communication it employed to dis-
seminate its opposition to the Put Parents in Charge Act, and thus the
School District created a limited public forum from which he could
not be excluded based on his viewpoint. We address each channel that
the School District employed to disseminate its message.

With respect to the School District’s website, Page argues that the
School District’s inclusion of links to other websites caused the
School District to lose control over content and therefore to fail the
government-speech requirement of control. He reasons that links to
other websites controlled by nongovernmental entities made available
messages that may not have been in existence at the time the School
District created the links. Therefore, any later-posted third-party state-
ments would not have been subject to approval by the School District
prior to posting. Page refers in particular to two links that the Lexing-
ton School District placed on its website in connection with its oppo-
sition to the Put Parents in Charge Act. The first was to the website
of "Choose Children First," an organization formed to oppose the bill,
and the second was to the website of the South Carolina School
Boards Association, an organization that had expressed its opposition
to the bill for the same reasons relied on by the Board of Trustees of
the Lexington School District. Moreover, Page notes that the School
District recognized the potential for changes in others’ websites to
which it provided links by including a disclaimer that reads, in rele-
vant part:

Some Lexington County School District One Webpages
have links to other Web sites.
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 13
These external Web addresses contain information created,
published, maintained or otherwise posted by institutions or
organizations independent of Lexington One. Lexington
One does not endorse, approve, certify or control these
external Web addresses and does not guarantee the accu-
racy, completeness, efficacy, timeliness, or correct sequenc-
ing of information located at such addresses.

Use of any information obtained from such addresses is vol-
untary, and reliance on it should only be undertaken after an
independent review of its accuracy, completeness, efficacy
and timeliness.

Page’s argument depends on an implied conclusion that by includ-
ing a link to another organization’s website, the School District made
the contents of that other website part of its own website. This argu-
ment, however, assumes too much.

First, it must be noted that the links to other websites were selected
by the School District alone as ones that supported its own message.
There is no suggestion that the owners of the other websites took any
initiative to be included on the School District’s website.

Second, the School District wholly controlled its own website,
retaining the right and ability to exclude any link at any time.

Third, the School District never incorporated on its own website
any material from a website to which it had provided a link; it merely
provided information that other websites supporting its position
existed, and it facilitated viewing those websites with links.

Fourth, the School District continuously and unambiguously com-
municated a consistent message — its opposition to the Put Parents
in Charge Act — and its providing references to others who shared
that position was consistent with and supported the message, much as
would a bibliography, a citation, or a footnote.

Finally, the School District "disclaimed" the contents of any linked
website, making it clear that only that which was stated on its own
website should be taken as the School District’s speech.
14 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
Had a linked website somehow transformed the School District’s
website into a type of "chat room" or "bulletin board" in which pri-
vate viewers could express opinions or post information, the issue
would, of course, be different. But nothing on the School District’s
website as it existed invited or allowed private persons to publish
information or their positions there so as to create a limited public
forum. To the contrary, the School District retained complete control
over its website, including the ability to take down its links to other
sites at any time. This control was demonstrated by the fact that
Director Hill removed the "Choose Children First" link when that
organization changed its website to include information other than
that relating to its opposition to the Put Parents in Charge legislation.
She had included the link initially when Choose Children First had
only one page on its website dedicated solely to the bill.

In sum, we conclude that the School District sufficiently controlled
this channel of communication so that its speech remained govern-
ment speech and it did not create a limited public forum by including
links to other websites. The School District included every link to
other websites on its own initiative, and it did so only insofar as the
link would buttress its own message. It thus retained sole control over
its message.

The same is true for the School District’s e-mail facility. Page
argues that because the School District included in or attached to
some e-mails the article by Dr. Ray and other statements of private
parties, it thereby created a limited public forum. Again, however, the
School District, on its own initiative, selected Dr. Ray’s article for
inclusion and thus adopted it to support its own message. There is no
suggestion that Dr. Ray or any other third person had access to the
School District’s e-mail facility. Instead, their materials were merely
incorporated into content that the School District drafted and sent in
furtherance of its own campaign in opposition to the Put Parents in
Charge Act.

Finally, with respect to the other channels of distribution by which
the School District distributed material to its constituent schools,
superintendents, and principals, Page has advanced no evidence to
suggest that those distribution mechanisms were available to anyone
other than School District employees.
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 15
Accordingly, we conclude that the School District established its
own message and effectively controlled the channels of communica-
tion through which it disseminated that message, as required for
application of the government speech doctrine under Johanns, and
therefore that it did not create a limited public forum to which Page
was entitled access.

IV

Page contends additionally that newsletters distributed by individ-
ual schools within the School District were public forums to which he
was entitled access, pointing particularly to the White Knoll Middle
School PTSA newsletter which communicated opposition to the Put
Parents in Charge Act.

The PTSA (Parent-Teacher-Student Association) newsletter that
Page refers to, however, was not written by the School District, nor
was it an official school newsletter. Rather, it was the newsletter of
the White Knoll Middle School Parent-Teacher-Student Association,
a third-party nongovernmental entity. While the opinion expressed in
the PTSA newsletter in opposition to the bill was consistent with the
School District’s position, the newsletter opinion was not expressed
as the School District’s own message but as that of the White Knoll
Middle School PTSA. Parent-Teacher-Student associations (or
Parent-Teacher associations) are organizations affiliated with, but dis-
tinct from, the schools making up the School District, even though the
procedures of such organizations are subject to editorial control by the
schools’ principals.

It may be true that by editorially controlling the newsletter, the
individual school may have created a limited public or nonpublic
forum because the speech in the PTSA newsletter was not the govern-
ment’s own speech, but speech of the Association. But that conclu-
sion does not advance Page’s request in this case to have access to the
newsletter, because he has not demonstrated that he was within the
class of persons who was, by design, accorded access to that forum.
See Perry, 460 U.S. at 46 & n.7; Child Evangelism Fellowship, 457
F.3d at 383.

The district court concluded that even though the newsletter likely
constituted a nonpublic forum, that forum was defined to allow access
16 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
to only "entities such as PTAs [PTSAs] and Booster Clubs which
were closely associated with the schools" and that those restrictions
were reasonable access restrictions, rather than a pretext for viewpoint
discrimination. We agree with the district court’s conclusions.

Regardless of whether the newsletter was a nonpublic or limited
public forum, "[c]ontrol over access to [the forum] can be based on
subject matter and speaker identity so long as the distinctions drawn
are reasonable in light of the purpose served by the forum and are
viewpoint neutral." Cornelius, 473 U.S. at 806; see also Perry, 460
U.S. at 46 (finding that status-based distinctions are acceptable in
nonpublic or limited public forums "as long as the regulation on
speech is reasonable and not an effort to suppress expression merely
because public officials oppose the speaker’s view"); Putnam Pit, Inc.
v. City of Cookeville, 221 F.3d 834, 843 (6th Cir. 2000) (finding that
a government entity may limit access to a nonpublic forum based on
category of speaker or subject matter so long as the limitation is rea-
sonable). In this case, limiting access to entities closely associated
with the school and subject to the school principal’s oversight and
approval was both reasonable and viewpoint neutral, and therefore
Page has not demonstrated unlawful viewpoint discrimination, as he
has failed to demonstrate that this was a forum otherwise open to him
but for his viewpoint.

V

Page also contends that he should have been granted access to dis-
seminate his materials through any other distribution systems used by
the Lexington School District and its constituent schools, such as its
"take-home flyer" program, its fax facilities, and the Government
Relations Council.

First, there is no evidence that the School District ever distributed
or permitted anyone to distribute anything related to the Put Parents
in Charge Act through these facilities. Therefore, Page never
requested access to them because he asked to distribute his materials
through channels of communication that had been used to disseminate
the School District’s position on the Put Parents in Charge Act.

In addition, as for the take-home flyer program, the School District
permitted distribution of flyers to students only when they were pre-
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 17
approved by the School/Community Relations staff and only when
the materials were from a § 501(c)(3) nonprofit organization that
sponsored extracurricular activities for students (such as Boy Scouts
or Little League) and, in addition, when they were "sign-up" or "reg-
istration announcements," rather than "message-driven" materials. As
with the PTSA newsletter program, the take-home flyer program con-
stituted at most a nonpublic or limited public forum, and the School
District’s restrictions on access to it were surely reasonable in the
context of a public school.

For similar reasons, we reject Page’s arguments with respect to
other channels of communication, such as the School District’s fac-
simile machines, the Government Relations Council, and other modes
of communication that the School District had.

VI

Finally, Page argues as a general matter that the government
speech doctrine should, in any event, never apply when the govern-
ment attempts to influence legislation. In essence, he urges that we
adopt a content-based limitation on the government speech doctrine.
His argument is grounded on the proposition that when the School
District attempts to influence legislation, its position is not checked
by the "ballot box," which is the traditional justification for accepting
the government speech doctrine. See Southworth, 529 U.S. at 235 ("If
the citizenry objects [to the message the government espouses], newly
elected officials later could espouse some different or contrary posi-
tion"); Sons of Confederate Veterans, 288 F.3d at 618 ("The rationale
behind the government’s authority to draw otherwise impermissible
viewpoint distinctions in the government speech context is the
accountability inherent in the political process"); see also Legal Servs.
Corp. v. Velazquez, 531 U.S. 533, 541-42 (2001).

In this case, Page assumes erroneously that the ballot box is not
available to check the government speech. He overlooks that
"[school] board members are elected. They may be removed, at the
next election, if the voters disagree with the manner in which they
have exercised their discretion. No more immediate ‘ballot box’ rem-
edy is suggested by the case law," as the district court appropriately
noted.
18 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT
Moreover, recognizing that government speech almost always sup-
ports a given policy objective and "[t]he government is entitled to
promote particular messages," Griffin v. Dep’t of Veterans Affairs,
274 F.3d 818, 822 (4th Cir. 2001) (citing Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)), the School Dis-
trict can surely "take legitimate and appropriate steps to ensure that
its message[s] [are] neither garbled nor distorted," Rosenberger, 515
U.S. at 833; see also Rust v. Sullivan, 500 U.S. 173, 194-95 (1991).
It is therefore appropriate for the School District to defend public edu-
cation in the face of pending legislation that it views as potentially
threatening of public education.

Many courts have rejected First Amendment challenges to govern-
ment speech involving advocacy regarding ballot measures. See, e.g.,
Kidwell v. City of Union, 462 F.3d 620, 626 (6th Cir. 2006) (finding
that "[t]he needs of effective governance command that the bar limit-
ing government speech be high" in holding that the First Amendment
did not prevent the city from advertising against a ballot referendum);
Cook v. Baca, 95 F. Supp. 2d 1215, 1227-29 (D.N.M. 2000) (rejecting
First Amendment challenge to advertisement placed by mayor on
every citizen’s water bill advocating for ballot initiative), aff’d, 12
Fed. Appx. 640 (10th Cir. 2001); Ala. Libertarian Party v. City of
Birmingham, 694 F. Supp. 814, 818-21 (N.D. Ala. 1988) (holding that
the First Amendment did not preclude city’s advertising for ballot ini-
tiatives). While the issue in this case is not a ballot measure before
individual voters, but rather a bill before the state legislature, grass-
roots lobbying of the type witnessed here nonetheless presents no
greater concerns from a democratic accountability standpoint than
advocacy regarding measures on the ballot. The ultimate target for the
School District’s campaign against the Put Parents in Charge Act was
the State’s General Assembly, and members of the General Assembly
— the ones who will ultimately vote on the measure — are them-
selves public officials and have an independent responsibility to
decide the public interest.

Accordingly, we reject Page’s argument that the government
speech regarding legislation in this case cannot fit within the bounda-
ries of the government speech doctrine.
 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 19
VII

This case reduces to the straightforward circumstance where the
Lexington School District determined to oppose the pending Put Par-
ents in Charge Act and charged its School/Community Relations
Director to communicate that message to virtually anyone who would
hear it. The School/Community Relations Director employed the
School District’s website, e-mail facility, and other distribution meth-
ods to communicate the message to constituent schools, students, and
the public. Throughout its campaign, the School District maintained
control over the development and dissemination of its message, and
it never allowed private persons to participate in the channels through
which it disseminated its message so as to create a public forum. We
agree with the district court that the School District engaged in gov-
ernment speech and that its speech did not implicate the First Amend-
ment or Page’s First Amendment rights.

The district court’s judgment is accordingly

AFFIRMED.