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.

Keeping the Government's Religion Pure: Pleasant Grove City v. Summum

Christopher C. Lund[*]

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In January, the Supreme Court decided Pleasant Grove City v. Summum.[1]  Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park.  At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display.  But this was a Free Speech case, not an Establishment Clause case.  The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their monument as well.

Most people expected the plaintiffs to lose.  And they did, clearly and unanimously.  I publicly predicted that Summum would lose on the day the Supreme Court granted certiorari,[2] and suggested that it might be unanimous a few hours after oral argument.[3]  But I do not claim any special powers of foresight.  My point is actually the opposite—anyone with experience in this area could recognize that the plaintiffs faced an uphill climb.  They were asking for a sweeping change in the law, and it was no surprise that they did not get it.

This Essay explains the decision in Summum, giving special focus to the religious dimensions of the case.  Summum, again, was decided on Free Speech grounds.  It was not an Establishment Clause case.  But it nevertheless reveals much about the course that the Supreme Court is now charting with the Establishment Clause.

The Mother's Milk of Politics is Corrupting Absolutely

Dan Walker[*]

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There is today a “clear and present danger”[1] that political contribution corruption threatens the integrity of our political system.  The time for action has arrived.  This Essay explores the extent of pay-to-play corruption and its implications for campaign finance law. 

I.  The Pay-to-Play Corruption Epidemic

Let us start with Illinois, where I served as governor.  Chicago and Illinois have long been known for scandals, both private and public.  According to a recent Chicago Tribune editorial, Chicago is the most corrupt city in the nation and Illinois one of its most corrupt states.[2]  For many decades, Chicago was known for Al Capone and machine guns.

Now, Illinois is known for something entirely new: attempting to auction a seat in the U.S. Senate to the highest bidder.  Recently impeached Governor Rod Blagojevich’s taped, expletive-filled telephone conversations involve blatant, large-money deals between him and various candidates for the Senate seat vacated by President Barack Obama.  Said the governor in a recorded conversation: “I’ve got this thing and it’s [bleeping] golden and . . . I’m not just giving it up for [bleeping] nothing.”[3]

The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums

Paul E. McGreal[*]

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Imagine that you are mayor of a small town that has a picturesque public park, removed from the town center, where your residents come to escape the hustle and bustle of everyday life.  To make the space inviting, you have built a gazebo, a picnic area, and a playground for the local children.  You have also allowed a local veterans group to erect a permanent monument honoring those from the town who died in war.  Then, a local group asks permission to hold a political rally in the park.  You deny the request, explaining that the park is for peaceful recreation and not for noisy demonstrations.

By denying the political rally, you have violated the First Amendment.  The First Amendment severely limits the government’s power to place content-based restrictions on speech in traditional public forums, which the Court defines as public parks, streets, and other “places which by long tradition or by government fiat have been devoted to assembly and debate.”[1] Further, government may not ban speech activities in such forums.  Thus, your town must allow at least some assembly and debate in the park.

Next, a local religious group asks permission to place a permanent monument in the park.  They explain that the monument will display the central tenets of their faith, which they consider their equivalent of the Ten Commandments.  You deny this request and explain that the only permanent structures allowed are those that serve the park’s recreational purpose.  The religious group points out, however, that you have already allowed placement of a veterans monument.  You respond that a war memorial is a more appropriate message for a public park than a religious monument.  The religious group catches your slip here.  They explain that the park is a traditional public forum, and that you are excluding their speech (the monument) from that forum (the park) based on its content (a religious monument rather than a war memorial).  As a result, they claim, your decision to exclude the religious monument violates the First Amendment.  Incredulous, you object that a permanent monument must be different than more temporary speech, such as a rally or movable display.  After all, if the city had to accept every monument offered by a private group, the park would soon look like a graveyard peppered with headstones.  The religious group persists.  Are they right?

This November, the Supreme Court will hear arguments on this question in City of Pleasant Grove v. Summum.[2]   The precise issue is whether placement of a permanent monument is part of the public’s right to use a traditional public forum.  This question falls in a gap in current public forum doctrine, and the lower courts have reached conflicting results in applying that doctrine.  On the one hand, the Tenth Circuit held in City of Pleasant Grove that permanent monuments are within the public’s right to use a traditional public forum.  This ruling bars the government from regulating private monuments based on their content, effectively leaving a choice between allowing all or no such monuments.  On the other hand, other courts have held that the public’s right to use a traditional public forum does not include placement of permanent structures.[3]   These courts typically announce the rule as a matter of judicial fiat, offering little, if any, reasoning.[4]   Their logic is internally inconsistent and, if applied generally, would lead to unacceptable consequences.

Both of the lower court approaches ultimately prove unsatisfactory because the decisions lack a principled basis to distinguish temporary speech from permanent monuments.  This is not surprising given that the Supreme Court’s existing public forum doctrine provides no basis for doing so.  The lower courts, then, have been trapped in the current doctrinal box.