I’m surpised that Sam hasn’t blogged about this yet, but I’m happy enough to steal it from him: last Wednesday, the Supreme Court released a unanimous opinion in Pleasant Grove City v. Summum. For anyone who doesn’t recall, Summum is a small but gutsy religious faith that contributed a monument of its “Seven Aphorisms” to the Pleasant Grove city government, asking that it be placed alongside a Ten Commandments monument that had been donated in the 1970s.
Summum’s argument should have been straight out of the establishment clause of the 1st Amendment, as extended to state and municipal governments through the 14th Amendment: the city of Pleasant Grove had no right to prefer one establishment of religion to another in its endorsements on public lands. An appeals court agreed; somehow, the Supreme Court did not, citing–get this–the government’s “right to free speech,” basically equating the choice of whether or not to place a monument as a democratic act of the people through their elected representatives.
But the case ended up under jurisdiction on free speech grounds, and so the fundamentally illogical idea of “government as curator” (see Althouse) ended up convincing not five but all nine judges. To wit: government must choose what to promote and protect with public resources in light of its electoral mandate. Alan Wolfe at TNR is right to worry about the legal adoption of the “government has a voice” metaphor. It is, after all, the same kind of murky legal reasoning that gives us the principle that “money is speech.”
Suppose we take the Court at its word when it says the case might have turned out differently under Establishment Clause jurisdiction. The problem here is that the “government as curator” model is pretty clearly in conflict with competition of ideas in the public sphere. It’s a fairly paternalistic theory and quite potent in spheres where the establishment clause doesn’t provide any clear, fundamentally incontrovertible reason why not to select between competing speech in a limited public sphere.
After all, the government “owns the airwaves”; in some sense, it can be said to own airspace and the skyline. Each of these realms has already been censored for obscenity under free speech guidelines with the reasoning that the public has a right not to be exposed to certain things (or that children must be protected). But the model of government curatorship would theoretically justify much, much more.
I want to quickly address one legal myth about “free speech” that irks me to no end. In the US, where people are rarely jailed for their words, “freedom of speech” cases end up being about “access to audience”–which is why the confusion of money for speech is important, and which is why the curator model is so easy to apply to publicly-owned airwaves and/or any other form of media (e.g. the internet) which may end up being “public” in the future.
Thoughts? Am I just being paranoid?
