Chief Justice John G. Roberts, Jr., told [counsel]: “You’re really just picking your poison, aren’t you? I mean, the more you say that the monument is Government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause.”
11.13.2008
Is it Religion? Free Speech?
Here's SCOTUSblog's take on the oral arguments from Pleasant Grove. I'm not an expert by any means - but know a decent amount about this area of law, and the case confused the hell out of me. What is it: speech? religion? public forum? curator? At least the Justices are struggling with the same problem.
Subscribe to:
Post Comments (Atom)
2 comments:
I wrote an article on this case arguing that the venue at issue should be deemed a limited public forum. Reasoning: Parks are traditional public forums but only as far as they relate to temporary speech, such as protests, rallies, demonstrations, etc. There is, however, no tradition of unmitigated access to parks with relation to monuments, what I would call "permanent speech." Therefore, a park is a nonpublic forum with relation to permanent speech until the government decides to open allow monuments. At that time, the government may place limitations on the permanent speech so long as it is content, not viewpoint based. For example, a park could allow all monuments that reflect city heritage but nothing else. Thus, courts must use a two-prong test to determine what kind of forum they are dealing with.
(1) What is the venue?
(2) Is the speech temporary or permanent?
The trap in my example is that a city allowing monuments of heritage would probably be unable to prohibit a monument that acknowledged a terrible tragedy that disgraced the city if it was in fact party of the city's heritage. Therein lies the hole in my argument but it's the best I got.
It seems to be that Judge McConnell and Judge Gorsuch (Tenth Circuit), in their en banc dissent, got it right. They disagree altogether with the application of a free speech-forum analysis. In fact, they believe it is misplaced and the speech that is sought via the statue ultimately morphs into government speech. As government speech, the government can make content-based choices and is constrained by other principles, such as the Establishment Clause. While the Supreme Court’s Establishment Clause jurisprudence in this area is a bit of a jigsaw, it seems quasi-religious monuments in "public squares" pass Establishment Clause muster so long as they are "passive” and are appropriate historical acknowledgments of the “Nation’s heritage.”
Nevertheless, it will be interesting to see how the Court rules.
Post a Comment