Ballot initiative titles are government speech, Tenth Circuit rules, spiking First Amendment claims

(CN) — The Tenth Circuit affirmed a Colorado trial court ruling Friday, rejecting a claim from a conservative nonprofit that a law governing ballot measure titles violates the First Amendment.

Advance Colorado, the sponsor of two tax reduction initiatives on Colorado’s ballot this November, claims that altering the title of an initiative interferes with and compels private speech by forcing the government’s opinion into the heading.

One month after hearing arguments, a three-judge panel disagreed. 

“The Colorado initiative titling system squarely qualifies as government speech, and Advance Colorado has not otherwise shown its own speech was improperly compelled by the government speech,” U.S. Circuit Judge Michael Murphy wrote on behalf of the Tenth Circuit panel. 

Advance Colorado said it rejects the opinion.

"Our clients disagree with the court’s conclusion that ballot titles are government speech," attorney Jennifer Weddle, who argued before the panel in March, wrote in an email on behalf of the nonprofit. "Ballot titles are not mere labels on mere forms; they are part-and-parcel of the forums afforded on ballots." (Emphasis in original.) 

Weddle called the ruling "a prime example of the 'speech dilution' the U.S. Supreme Court held impermissible in 303 Creative just last term." 

"The people of Colorado reserved the power to check Colorado governmental overreach through the ballot initiative process," Weddle said. "That private speech does not become government speech because the Title Board has the role of making sure a ballot title is clear and addresses a single subject."

Advance Colorado with its two initiatives seeks to reduce sales tax by 0.61% and cap property tax growth at 3% per year. 

Colorado's Title Board — composed of the secretary of state, attorney general and the director of the office of legislative legal services, or their designees — added language to the titles of the initiatives according to a statute enacted in 2021. The statute requires citizen-driven ballot initiatives that would reduce taxes to inform voters of three public programs or services that would be most affected by the tax cut. 

The Title Board wrote in the title of the sales tax initiative that it “will reduce funding for state expenditures that include but are not limited to education, health care policy and financing,” and wrote in the title of the property tax initiative that “funding available for counties, school districts, water districts, fire districts, and other districts funded, at least in part, by property taxes shall be impacted.”

Advance Colorado sued Colorado Secretary of State Jena Griswold in August 2023 claiming the law violates the First Amendment by compelling private speech to include the government’s opinion on the initiative and potentially mislead voters.

Because Colorado is projected to be at a profit surplus for the next few years, there’s no guarantee that any tax cut would reduce the amount spent on public programs, the organization argues.

The Colorado Attorney General’s office says the language isn’t misleading, because even if spending didn’t decrease due to a surplus, the total amount of available funding would still be reduced. 

Whether the message regarding available funding misleads voters didn’t matter to the panel, which affirmed the trial court’s decision to deny Advance Colorado preliminary injunction for its First Amendment claims because it found the speech in question — the ballot initiative titles — to be government speech, not private speech, and therefore cannot be compelling private speech.

“The First Amendment works to restrict government regulation of private speech,” Murphy wrote. “Similar to citizens, however, the government has a right to speak for itself. In turn, purely government speech is generally exempt from First Amendment scrutiny.”

In deciding whether speech of that of the government or that of a private citizen transmitted through the government, the court must consider the context of the expression, which most often includes the history of the expression, the public’s likely perception of who is speaking, and the extent to which the government has shaped or controlled the expression.

“The first and third factors — history and government control of expression — work in tandem to underscore Colorado’s ballot titling qualifies as government speech,” Murphy wrote. “The long history of the Title Board’s practices reflects the substantial control the government asserts over initiative titles and its legitimate interest in providing a standardized process for presenting measures to voters. Titling is statutorily separated and preserved as an express function of the government under Colorado law.”

Weddle argued in March that the added language would lead to voter confusion, as voters typically don’t know whether the speech is private or government. The Tenth Circuit rejected this argument as well. 

“Advance Colorado fails to address the disclaimer shown immediately above the ballot title indicating the language is ‘designated and fixed’ by the Title Board,” Murphy wrote. “This statement plainly communicates to voters that the title is drafted by the government and does not represent the proponents’ expression.”

Murphy finished by suggesting that Advance Colorado go through the proper channel to challenge a title if the nonprofit finds it to be misleading, but that issue is separate from whether it violates the First Amendment.

Weddle said Advance Colorado is "considering next steps." Typically, a further challenge to the circuit court's ruling would be to U.S. Supreme Court, which hears less than 1% of cases it's asked to review.

The Colorado secretary of state's office hasn't replied to a request for comment.

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