Summum and the Establishment Clause

Bernadette Meyler[*]

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Chief Justice Roberts: [T]he more you say that the monument is Government speech to get out of the first, free speech—the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause.  If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking—supporting the Ten Commandments?

Justice Kennedy: [I]t does seem to me that if you say it’s Government speech that in later cases, including the case of the existing monument, you’re going to say it’s Government speech and you have an Establishment Clause problem.  I don’t know if—I’m not saying it would necessarily be resolved one way or the other, but it certainly raises . . . an Establishment Clause problem.

Justice Souter: But . . . [t]he Government isn’t disclaiming [the Ten Commandments monument].  And the difference[,] it seems to me[,] between you and your friends on the other side is you want this clear statement [that the city has adopted the monument].  You want a statement—for example if you took Justice Scalia’s statement, that would satisfy you, and it would also be the poison pill in the Establishment Clause.  Isn’t that what’s—I mean, that’s okay with me.  I don’t see that as an illegitimate object.  I was a Van Orden dissenter . . . .[1]

I.  A Ghostly Dialogue

A specter haunts Pleasant Grove City v. Summum[2]—the specter of religion.  Although both sides insistently litigated the case under the Free Speech Clause, the prospect of an Establishment Clause violation continually emerged during oral argument, slightly beyond the Supreme Court’s purview.  The written statements that the Court ultimately produced conjured a similar ghostly apparition located just outside the boundaries of the holding.  Whereas Justice Alito’s majority opinion simply determined that the display of the Ten Commandments monument constituted government speech, a circumstance that precluded the possibility of a free speech-based challenge, the concurring opinions of Justices Scalia (joined by Justice Thomas) and Souter again raised the Establishment Clause specter.[3]

Property and Speech in Summum

Joseph Blocher[*]

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Introduction

City of Pleasant Grove v. Summum[1] is, by its own reckoning, a case about government speech under the Free Speech Clause of the First Amendment.[2]  Even so, most commentary has justifiably focused on the decision’s implications for another part of the First Amendment: the Establishment Clause.[3]  This brief Article addresses yet another feature of Summum—what it draws from, and says about, the relationship between speech rights and property ownership.[4]  This relationship is not only the driving force behind the majority’s opinion, but is also an important tool for understanding government speech in other cases involving government intrusion into speech markets, which often involve speech that is less physical than the monuments at issue in Summum.[5]

Part I of this Article discusses the intersection of property rights and government speech in Summum.  Part II explores how that intersection illuminates three often-hidden characteristics of all speech: ownership, rivalry, and excludability.  Focusing on these concepts may help explain the property-like characteristics of speech (even when it takes forms less physical than the monuments in Summum), and whether property ownership is itself a communicative act.

Privatizing and Publicizing Speech

Nelson Tebbe[*]

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I.

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations?  Two cases this year call that question to mind.  They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a Ten Commandments monument that a private religious organization donated to a city.[1]  The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took ownership of the monument itself.[2]  The Justices therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monument—The Seven Aphorisms of Summum—alongside the Ten Commandments.  Finding the existing monument constituted government speech allowed the Court to dismiss Summum’s claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment.  The Court reasoned that Pleasant Grove could exclude Summum’s monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives.[3]  (Of course government endorsement of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated, as I will explain.[4])  You can think of the city’s decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it “publicized” a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message.

On the other hand, consider Salazar v. Buono, which the Court will hear in the fall.  It concerns a white cross that has long stood in the Mojave National Preserve.[5]  After a lower court ruled that the cross was an unconstitutional establishment,[6] Congress intervened and conveyed the small parcel of land containing the cross to a private organization.[7]  Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message.  Yet Congress retained ties to the land, including a property interest and certain regulatory power.[8]  The transaction’s highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message.[9]

Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument.  In fact, another religious group—a Buddhist organization—initially sparked the controversy over the white cross when it wrote to the National Park Service and requested permission to display its monuments nearby.  Although the Buddhists never brought legal action, it is not totally inconceivable to imagine them arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms.  As things turned out, however, only one constitutional issue is before the Court—the antiestablishment request to undo the privatizing transaction—and the government’s evasion of that claim is likely to succeed, at least in the short term.

Deference to Clients and Obedience to Law: The Ethics of the Torture Lawyers (A Response to Professor Hatfield)

W. Bradley Wendel[*]

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I.  Introduction

In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees.[1]  On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing with certain legal aspects of whether detainees in U.S. custody could lawfully be subjected to torture.  I and many others have criticized the quality of legal reasoning in previously disclosed memos,[2] and it is now conventional wisdom that something went terribly wrong with the legal advising process in the previous administration, at least with respect to terrorism and national security issues.  At the time of this writing, it remains uncertain whether an investigative report of the Justice Department’s Office of Professional Responsibility (“OPR”) will be released to Congress, and whether there will be a public version of the report.[3]  Not surprisingly, the OPR report is rumored to be highly critical of the conduct of the lawyers who prepared these documents.[4]

Professor Hatfield concludes, in my view correctly, that the legal analysis produced by the OLC in the Bush administration was intended not as a good-faith attempt to determine what the law requires, but to lay the groundwork for American personnel to later claim reliance on the advice of counsel if subjected to prosecution for human-rights violations.  There are two strands to Professor Hatfield’s critique of the advising process.  The first is positive, or empirical, and the second is normative.  The positive claim is that OLC lawyers such as Jay Bybee and John Yoo lost sight of their moral compass because as lawyers they were professionally socialized into a kind of moral anesthesia.[5]  The normative claim is that the profession’s stance toward the immorality of client activities is passive instead of active, that it impermissibly commends a morality of deference to authority over the insistence on the moral responsibility for complicity in wrongdoing.[6] 

I will have something to say about each of these points in turn, but my overall reaction is that Professor Hatfield’s proposed reform is much too strong.  He would have lawyers act directly on the claims of their own consciences rather than on the requirements of law (including tort, contract, and agency law norms structuring the attorney-client relationship).[7]  This is surprising given his diagnosis of the reason for the bad lawyering in the OLC memos:

I believe these lawyers began with the objective of justifying torture.  They concluded that they were obligated to justify torture, and then they set out to do so.  Whoever was ultimately responsible for requesting the Torture Memo apparently had such an objective, and the lawyers . . . accepted that position as a morally acceptable starting point. They made a bad moral conclusion, and I believe it drove them to make a bad legal argument.[8]

An appeal to conscience would therefore entrench the problem identified by Professor Hatfield.  The last thing lawyers like Jay Bybee and John Yoo should be encouraged to do is to act on their sincere moral convictions in violation of the requirements of law.