Court again struggles with First Amendment doctrines

Thursday, November 13, 2008

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

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

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.”

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