Does the City of Berkeley, and the Peace and Justice Commission,

have the right to free speech? Some people pointed out that Berkeley is a municipal corporation, so the Peace and Justice Commission proposal would strip Berkeley itself (and presumably its agencies) of free speech rights.

Well, it turns out that cities do not have federal constitutional rights vis-a-vis the state government. Cities are seen as political subdivisions of the state, and the state is free to tell them what to say or not to say. (It’s possible that the California Constitution does give cities some free speech rights, but I don’t think so.) The legislature might thus ban local governments from expressing their views on certain matters. In some states, in fact, state law bars political divisions from advocating or opposing ballot measures or candidates, or expressing views on other subjects.

Ah, but do states and local governments have constitutional rights vis-a-vis the federal government? May the federal government ban states or local governments from saying certain things?

That turns out to be an unresolved, though interesting question. The Supreme Court recognized this as an open issue in United States v. American Library Association, the 2003 case involving conditions on federal grants to public libraries, but didn’t resolve it. Lower courts have considered it, but there’s no clear answer in those decisions, either. (Curiously, the Supreme Court has held that the Fifth Amendment’s Taking Clause does require the federal government to compensate state and local governments for takings of their property, even though the Clause specifically mentions only “private property.”)

So I don’t think the Peace and Justice Commission can be much faulted on this score: While their proposal, if adopted, would strip municipal corporations of First Amendment rights, it’s not clear that such corporations have those rights in the first place, and we can probably make do just fine without their having such rights. I’m much more troubled by the proposal’s stripping newspapers and other entities of their free speech rights.