Here are some thoughts of mine I am sharing today with the students in my Con
law Seminar in which one of the students is presenting today on Summam:
I was re-reading Summum this morning, because Mark is going to give his
presentation on the case this afternoon. And here is something that
struck me about Justice Alito's opinion.
He starts off giving a tribute to the essential nature of government speech. He
says:
-- "the Free Speech Clause... does not regulate government speech"
-- "a government entity has the right to speak for itself"
--government is "entitled to say what it wishes"
--government may "select the views it wants to express"
--"It is the very business of government to favor and disfavor points of view"
--"it is not easy to imagine how government could function if it lacked this
freedom"
--"To
govern, government has to say something, and a First Amendment
heckler's veto of any forced contribution to raising the government's
voice in the 'marketplace of ideas' would be out of the question."
Yet,
without missing a beat or apparently even being aware of the
contradiction, Alito goes on to say that of course "government speech
must comport with the Establishment Clause."
Why should this be
so? Why should the Court be so ready to accept a "heckler's veto"
against passive government speech--such as a nativity display in a
public park acknowledging the fact of the Christmas holiday? Why should
we think that the government's critically important right to say what
it wishes and to express the viewpoints it chooses is subject to being
enjoined at the whim of any citizen who is offended by the government's
message acknowledging religion. How could the doctrine of incorporation, which
protects only
"liberty interests" against state deprivations, give a citizen the
right to restrict government from "saying what it wishes" by means of a
passive display that restricts the liberty of no one, since all one
need do if one is offended by a passive display recognizing a religious
holiday is to avert one's eye? Is the "endorsement test" a
liberty-protecting test, or is it a structural limitation on government
that somehow was mistakenly incorporated as a "liberty" under the 14th
Amendment?
These are the questions that keep me up late at night
pondering the inconsistencies of the Court's treatment of government
speech.
Of course, some will say religious speech by government is different, because
the EC restricts the power of government to endorse religious ideas. But isn't
that a structural limitation on government, as opposed to a protection of
liberty? And how can a structural rule restricting the power of Congress under
the First Amendment apply against state governments under a test that
explicitly incorporates only "liberty" interests against state deprivations?
The thing about the Summum opinion that struck me so vividly was the contrast
between Alito's tribute to the "right" of the state to say what it wishes as
essential to the very nature of government and his casual acceptance of the EC
as a limitation on the speech of the states. Heckler's vetos are bad except
when they are good!
Just a few thoughts about a recent decision I thought I would share with the
list.
Cheers.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty
is a well-armed lamb contesting
the vote."--Ben Franklin (perhaps misattributed, but still worthy of Franklin)
"It's a funny thing about us human beings: not many of us doubt God's existence
and then start sinning. Most of us sin and then start doubting His existence."
--J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim
is vindicated, that the perversion of the best is the worst." -- Id.
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