Also known as: private expression
Written by attorneys · grounded in primary & secondary sources — see below
An expression attributable to private individuals or entities rather than the government. Such speech receives full First Amendment protection against content-based or viewpoint-based restrictions imposed by the state.
Pulse Media applied to register a mark containing an ethnic slur used ironically to protest discrimination. The Patent and Trademark Office denied the application after a nonprofit complained the mark demeaned a national origin group. Because the mark constitutes private speech, the denial imposed an unconstitutional viewpoint restriction that failed strict scrutiny.
Pavel Petrov donated a permanent stone monument to a city park criticizing local government policies. The city accepted several other privately funded monuments but refused Petrov's proposal. The refusal is permissible because the selected monuments are government speech rather than private speech.
Select any source to read its text and confirm it supports the definition.
Paragon Construction sued Dun & Bradstreet after a credit report falsely stated the firm had filed for bankruptcy. The report was distributed only to a small group of subscribers and concerned purely private commercial matters. The limited circulation meant the speech received reduced First Amendment protection in the defamation action.
Paula Pierce posted temporary directional signs for her church services in a residential area. The town cited her under an ordinance that treated political and ideological signs more favorably than directional signs. The differential treatment constituted a content-based restriction on private speech that triggered strict scrutiny.
Phoebe Park submitted a religious student magazine for reimbursement from a university student activity fund. The university denied funding solely because the publication expressed a religious viewpoint. The denial amounted to impermissible viewpoint discrimination against private speech in a generally available funding program.
Philip Powell sought to register a trademark using an ethnic slur as part of an ironic protest against discrimination. The Patent and Trademark Office refused registration after a nonprofit objected that the mark demeaned a national origin group. The refusal was an unconstitutional viewpoint-based restriction on private speech.
Speech becomes government speech when the government exercises control over the message and the public reasonably understands the expression as the government's own. Permanent monuments in public parks selected and installed by the government illustrate this shift even when privately donated.
Yes. Trademarks constitute private speech. A statutory bar on registering disparaging marks imposes a viewpoint-based restriction that fails strict scrutiny when the only justification is disapproval of the speaker's viewpoint.
When a university creates a program to fund private student speech it must distribute funds on a viewpoint-neutral basis. Excluding a religious publication solely because of its religious viewpoint constitutes impermissible discrimination against private speech.
Strict scrutiny applies. A law that singles out particular categories of private speech for different treatment based on content or viewpoint must be narrowly tailored to serve a compelling governmental interest.
…escapes First Amendment strictures. See Rust v. Sullivan , 500 U. S. 173, 193–194 (1991). But regulated speech is typically private speech, not government speech. Further, the Court has said that, “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is…