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Court again struggles with First Amendment doctrines

By Tony Mauro
First Amendment Center legal correspondent
11.13.08

WASHINGTON — The Supreme Court’s discontent with its own First Amendment doctrines appeared to grow yesterday, as justices grappled with the case of a Utah city that said yes to a Ten Commandments monument on city land in 1971 but no to a New Age religious sect with a similar request 33 years later.

The Court seemed ready during oral argument in the case of Pleasant Grove City v. Summum to find a way to allow governments to discriminate in this way without violating the First Amendment. But in the process, the justices questioned their precedents on public forums and government speech vs. private speech. Some justices also wondered why the First Amendment’s establishment clause — which was avoided in the earlier stages of the dispute — wouldn’t decide the matter.

“This case is an example of the tyranny of labels,” said Justice Anthony Kennedy, a potential swing vote in the case.

“We seem to be applying these subcategories in a very absolute way,” said Justice Stephen Breyer at another point.

The Court’s mood yesterday was foreshadowed Nov. 3 during oral arguments in a much lower-profile First Amendment case, Ysursa v. Pocatello Education Association, which concerned whether a state can bar payroll deductions from state employees for political activities. When Breyer confessed his “deep misunderstanding” of the concept of content-based speech discrimination last week, Chief Justice John Roberts chimed in, “Since we are in a confessional mode, I’ve never understood forum analysis.”

Both doctrines were also at issue in the Summum case argued yesterday. Summum sought to portray the city’s exclusion of its monument as opposed to the inclusion of the Ten Commandments display offered by the Fraternal Order of the Eagles as impermissible content-based discrimination in a public park — a classic public forum.

The 10th U.S. Circuit Court of Appeals agreed with Summum, finding that the sect’s “Seven Aphorisms” memorial had to be accepted, because the park was a public forum where such discrimination was not allowed under the Court’s First Amendment rulings.

But the justices struggled with this all-or-nothing concept.

“You have a Statue of Liberty; do we have to have a statue of despotism?” Roberts asked. “Or do we have to put any president who wants to be on Mount Rushmore?”

Similarly Justice Antonin Scalia wondered aloud if a city that allows any kind of memorial on public land would have to also permit “a monument to chocolate chip cookies” if a resident proposed it.

Breyer piled on, asking if a park that allows signs such as “Eat vitamins” also had to tolerate signs urging, “Pull the dog’s tail.”

The justices also seemed unhappy that under Court precedent, it appeared that the only way a municipality could say yes to the Ten Commandments display and no to the Summum monument was to define the Ten Commandments memorial as a form of speech by the city government, rather than private religious speech. The Court has ruled that when the government speaks it can pick and choose its messages, adopting some and rejecting others.

Jay Sekulow, chief counsel of the American Center for Law and Justice, arguing for Pleasant Grove City, told the justices that monuments in the city’s park “have been selected by the government, are owned by the government, controlled by the government, and are displayed on government property. When the government is speaking, it is free from the traditional free-speech constraints of the First Amendment.”

But Justice David Souter said the “tough issue” was that in fact, the memorial on public land might be a mixture of government and private speech — perhaps requiring a new set of rules and standards.

Deputy U.S. Solicitor General Daryl Joseffer, also arguing in support of the Utah city, pressed the “government speech” point. “The Vietnam Veterans Memorial did not open us up to a Viet Cong memorial,” he said.

In the same way that a library or a museum curator can select some works and not others, Joseffer added, “so can the government pick which events or beliefs to commemorate.”

But Justices Samuel Alito and John Paul Stevens asked whether the doctrine also meant that the government could choose to exclude the names of veterans who espoused views the government did not like, or who were homosexuals, from the Vietnam memorial. Pressed repeatedly on the point, Joseffer said those names could be excluded under First Amendment principles, though he said there could be equal-protection or due-process issues.

Sekulow’s insistence on the “government speech” position also prompted some justices to warn him that if in fact the government was speaking when it favored the Ten Commandments over the Summum display, it could be in violation of the establishment clause of the First Amendment, which has been interpreted to bar government endorsement of one religion over another.

“It seems to me you’re walking into a trap under the establishment clause,” Roberts told Sekulow. “If it’s government speech, it may not present a free-speech problem, but what is the government doing speaking, supporting the Ten Commandments?”

Sekulow noted that no establishment-clause claim had been raised in Summum’s initial challenge to the city’s action. But several briefs filed in the case asserted that such a claim was precluded by 10th Circuit precedent. Sekulow also asserted that placement of the Ten Commandments monument had a secular, historical purpose that would make it permissible in spite of the establishment-clause issue.

Another set of First Amendment principles involved in the case caused concern. Should the city’s park be viewed as a classic public forum where all speakers are allowed? Or, as Sekulow urged, should it be categorized as a nonpublic forum when it comes to placement of permanent monuments in limited public spaces?

Pamela Harris, an attorney with O’Melveny & Myers, insisted on behalf of the Summum sect that the park was a public forum where “the government may not favor one message over another.”

When justices asked how cities, practically speaking, could be selective in such a public forum, Harris said there was a simple option. Governments, she said, could “adopt any existing monuments as government speech” by resolution, and announce that, henceforth, “these parks are available only to government displays.”

Justices seemed dubious that Harris’ proposal would work. Scalia suggested it would be impractical for cities to investigate and adopt all the memorials on their public lands.

“It may be a very nice world,” Scalia said, “but it happens not to be the world under which our Constitution has subjected this country.”


Update
High court: Utah town can bar religious marker from city park
Unanimous ruling rejects argument that Pleasant Grove must accept Summum display because it allowed other private groups to donate monuments. 02.25.09

Previous
Summum case not just about religion
By Tony Mauro In fact, issue of government speech is prominent in case involving religious monuments in Utah. 11.10.08

Related

High court agrees to consider religious-monument dispute

Utah city has asked justices to overturn 10th Circuit decision that sided with group trying to get its 'Seven Aphorisms' displayed in municipal park. 03.31.08

Justices question doctrines at heart of union-fees case

By Tony Mauro Viewpoint discrimination, public forum come under questioning at high court in Ysursa case concerning political use of payroll deductions in Idaho. 11.04.08

2008-09 Supreme Court case tracker


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