Take Two Tablets, Take 2

Jacob Sullum | February 25, 2009

Today the U.S. Supreme Court unanimously ruled that the First Amendment's Free Speech Clause does not require the government of Pleasant Grove City, Utah, to allow the erection of a monument to the Seven Aphorisms of Summum in a public park that is already the site of a donated monument honoring the Ten Commandments. The Summum sect had argued that the government violates the right to freedom of speech when it picks and chooses among donated monuments based on the ideas they express. The U.S. Court of Appeals for the 10th Circuit agreed, to the horror of local and state officials throughout the nation, who began imagining a proliferation of silly, offensive, and hideous monuments on every patch of public land where a donated display has been allowed. The Supreme Court, in an opinion by Justice Samuel Alito, said the 10th Circuit did not frame the issue correctly: The Ten Commandments monument, which was provided by Fraternal Order of the Eagles, should be seen as government speech, not private speech in a public forum. Since "the Free Speech Clause restricts government regulation of private speech" and "does not regulate government speech," Alito said, it is not violated by a monument policy of "selective receptivity."

Now that the Court has definitively said that it's the government endorsing the Ten Commandments, the obvious question is whether that message amounts to an establishment of religion, thereby violating a different clause of the First Amendment. Pleasant Grove City officials apparently tried to avoid that issue by disclaiming the speech as their own.

The Supreme Court's decision is here. I discussed the Summum case in November.

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hotsauce|2.25.09 @ 2:37PM|#

I've been saying for a few years now that at least two good things came out of the Bush administration: (1) tax cuts and (2) above average SCOTUS nods. I'm going to reevaluate (2) after reading and digesting this opinion.

Dello|2.25.09 @ 2:40PM|#

Good thing it's winter: The rain may help to quell the coming firestorm.

|2.25.09 @ 2:42PM|#

I swear, that tortured logic seems almost insultingly designed to just save local governments of the huge hassle it would create for them, and nothing else.

|2.25.09 @ 2:45PM|#

Just something for all of the radical athiests out there to think about. When I was an environmental lawyer for a large Army instalation, one of my projects involved a medicine wheel. The post had the reminents of what Indians said was a prehistoric medicine wheel and was thus sacred in their religion. The army went out and fenced a large area off around it and kept the nature of it secret. It then allowed the Indians and only the Indians to come out and do religious cerimonies at it.

Now, why the hell is the ACLU not suing over that? Imagine if they had the remenents of a church and let Christians and only Christians come out and do services there and expended resources to fence the place off? The ACLU would be having kittens. Yet they don't about medicine wheels. And there are several of them on federal land.

My point is that most secular people in this society are not really secular, they just hate Christians. If they were secular they would be disturbed equally by medicine wheels and the like.

Warty|2.25.09 @ 2:48PM|#

Indians are fine, John, because they're adorable. They're like little red teddy bears or something.

|2.25.09 @ 2:48PM|#

How about government steering clear of the whole mess by not building monuments? Or providing public education or libraries? Or anything else that makes it act unconstitutionally?

The Angry Optimist|2.25.09 @ 2:49PM|#

I do not see the logic as tortured. It is hair-splitting, but that is the nature of SCOTUS opinions.

Logically speaking, by the 10th Circuit's logic, that is, you should be able to erect any monument you wish at Battery Park or on the National Mall.

This is a small-government, home-rule ruling; it permits cities and towns discretion in permanent structures go on government lands.

|2.25.09 @ 2:50PM|#

Chicago cop beats a cute blond bartender...gets a misdemeanor charge, until he was youtubed.

http://www.youtube.com/watch?v=dyK2E1xtVZs

I thought people here might like it since a cute blond is involved.

|2.25.09 @ 2:51PM|#

That sucks pro. Jesus Christ. By your logic, a local community can't do shit because God forbid the local gadfly might be offended. I don't have a problem with public schools or libraries. Further, I think those things ought to within reason represent what the majority of the community thinks and believes. Let people form their own communities and make their own rules. Libertarianism doesn't have to mean the death of the community or any community projects or any sense of local government and control.

Radical Atheist|2.25.09 @ 2:53PM|#

John,
I would be more up in arms if the Indians were as antagonistic of us Atheists as the xians are. Xians happen to be tallest nail.

|2.25.09 @ 2:55PM|#

"I don't have a problem with public schools or libraries."

Time for some libertarian fundamentals review.

By your logic, a local community can't do shit because God forbid the local gadfly might be offended.

I think he is saying that the local government can't do shit. People in the community are free to do whatever they want on their property, or on other's property with permission. There should be no religion or religious symbols on any piece of public property. Let's throw the Bible out of the local library while we are at it.

The Angry Optimist|2.25.09 @ 2:57PM|#

How about government steering clear of the whole mess by not building monuments? Or providing public education or libraries? Or anything else that makes it act unconstitutionally?

What government are you talking about? The Federal Government? Because a lot of state constitutions explicitly mandate state-provided education:

From Article VIII, Sec 27 of the Ohio Constitution:

That every association of persons,...may on application to the Legislature, be entitled to receive letters of incorporation, to enable them to hold estates, real and personal, for the support of their schools, academies, colleges, universities, and for other purposes.

Time for some libertarian fundamentals review.

I don't particularly care for public anything, but the way libertarianism and small-government run together is to provide a "marketplace of communities" that make it far easier for one to remove oneself to a community that comports with his lifestyle choices and/or beliefs.

A top-down, one-size-fits-all national mandate that places like Pioneer Grove "must do X" does not facilitate that goal.

|2.25.09 @ 3:00PM|#

John,

It's not a religion thing with me; it's what the hell business is it of the government spending money on monuments thing. These disputes--religious monuments, teaching of evolution, prayer in schools, "offensive" books, saying "fuck" on TV--all stem from the government sticking its nose where it doesn't belong.

|2.25.09 @ 3:02PM|#

TAO,

Local government can be as God-awful as the federal government. Even with state and federal interference, education remains largely a local government responsibility. I'm all for doing things differently in different places, but I think the role of government should be minimal and limited in scope even where it is appropriate for it to act. I mean, monuments? WTF?

|2.25.09 @ 3:03PM|#

I agree with this decision. But it should logically follow that the ten commandments statue is a government endorsement of religion, if it is legally government speech, and not private speech.

Paul|2.25.09 @ 3:08PM|#

Local government can be as God-awful as the federal government.

It's worse, because it's run by the pettiest of the petty tyrants. That's why the most unconstitutional, onerous legislation always comes from local government.

The Angry Optimist|2.25.09 @ 3:14PM|#

|2.25.09 @ 3:17PM|#

All government should be limited, period.

economist|2.25.09 @ 3:25PM|#

I actually don't consider this a particularly bad decision. Now, granted, I would prefer if public land consisted of a few military bases, police stations, and courthouse sites, but as it stands I don't have any problem with this decision.

economist|2.25.09 @ 3:29PM|#

"Would you rather have a patchwork of mostly-free states and cities, puntuated by theocracies like Salt Lake City"

After the collapse of civilization, I intend to move to the town of Sparta and reorganize into a militaristic state. Then I'll find some way to piss off the Iranians (or get people from Athens to do it), so I can have an epic battle in the mountains. Some of the geographic details might be difficult to work out, but I'm sure we'll be up to the challenge.

|2.25.09 @ 3:31PM|#

The problem isn't religious monuments in courthouse squares, it's that the courthouse squares are owned by government. The federal government should not be telling local communities what they can or cannot do on their own property.

If Christianity is normal in a community, then I see no problem with Christian monuments in the community. Even if they're on public property. Ditto if Summum is the norm. Three local geeks with FSM bumper stickers doesn't meet the threshold of normality. A dozen Christian churches and a synagogue does. My hometown was predominantly Christian, but we also had a very large Bhuddist community. Putting up Bhuddist symbols was never a problem for us, because they were our neighbors. But there were no Wiccans, so putting up Wiccan iconography in the public park would have been out of place.

p.s. I consider statism to be a religion as well. It's a belief system based on faith with a hierarchical priesthood and ritualistic slogans. Why should their monuments get erected when I'm forbidden to put up a nativity creche?

|2.25.09 @ 3:36PM|#

Indians are fine, John, because they're adorable. They're like little red teddy bears or something.

They smoke peace pipes and hang out in the sweat lodge and go on vision quests and hang dream catchers in their rooms. This basically makes them stoners, who as we all know, are harmless. Therefore letting the Indians do this is fine.

I do not see the logic as tortured.

I just find it interesting that every time a ruling, if done in a very clear way, would potentially cost the government a lot of money, this SCOTUS always manages to muddy it up. For instance, Heller.

Stagman|2.25.09 @ 3:36PM|#

Local government can be as God-awful as the federal government.

It's worse, because it's run by the pettiest of the petty tyrants. That's why the most unconstitutional, onerous legislation always comes from local government.

But it better because it's much easier to move away from a small town run by petty tyrants than a whole country run by big-time tyrants.

|2.25.09 @ 3:38PM|#

So the Court says this:

The Ten Commandments monument, which was provided by Fraternal Order of the Eagles, should be seen as government speech,

Even though the government said this:

Pleasant Grove City officials apparently tried to avoid that issue by disclaiming the speech as their own.

Don't let the facts get in the way of a good ruling, SCOTUS.

economist|2.25.09 @ 3:39PM|#

"They smoke peace pipes and hang out in the sweat lodge and go on vision quests and hang dream catchers in their rooms."

Most of my relatives have pickup trucks, don't smoke at all, and gripe about stoners.

|2.25.09 @ 3:41PM|#

But it better because it's much easier to move away from a small town run by petty tyrants than a whole country run by big-time tyrants.

Not if they put you in jail.

Teh Anarcist!|2.25.09 @ 3:41PM|#

"But it better because it's much easier to move away from a small town run by petty tyrants than a whole country run by big-time tyrants."

Let's have no governemnt, then we'll have no tyrants.

|2.25.09 @ 3:42PM|#

I swear, that tortured logic seems almost insultingly designed to just save local governments of the huge hassle it would create for them, and nothing else.

You are more correct than you know Episarch

From the opinion:

If government entities must maintain viewpoint neutrality in their selection of donated monuments, they must either "brace themselves for an influx of clutter" or face the pressure to remove longstanding and cherished monuments. Every jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a donated monument questioning the cause for which the veterans fought. New York City, having accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome, Alaska, during a diphtheria epidemic) may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration. The obvious truth of the matter is that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations. And where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place.

economist|2.25.09 @ 3:42PM|#

"Not if they put you in jail."

True, but it's easier to run BEFORE they put you in jail. Try escaping the country to avoid federal prison, on the other hand. Not that I've actually had occasion to try either.

|2.25.09 @ 3:44PM|#

Brandybuck,
I consider statism to be a religion as well. It's a belief system based on faith with a hierarchical priesthood and ritualistic slogans. Why should their monuments get erected when I'm forbidden to put up a nativity creche?

I like the way you are going with this. If an ancient roman were time-transported to Washington D.C., they would of course assume that we had deified Washington/Lincoln/etc.

economist|2.25.09 @ 3:46PM|#

"I like the way you are going with this. If an ancient roman were time-transported to Washington D.C., they would of course assume that we had deified Washington/Lincoln/etc."

They might find it strange that we don't have a gigantic statue of Washington, though.

|2.25.09 @ 3:46PM|#

Would you rather have a patchwork of mostly-free states and cities, puntuated by theocracies like Salt Lake City, or the "benevolent and all-controlling" hand of the Federal Government dictating how all states and cities are to be run?

Leaving Columbus is easier than leaving America.

I'm with you TAO - Strong federal control is a much greater evil. Minarchist thought would suggest that the lowest level of government ought to be encouraged - efficiency be damned.

|2.25.09 @ 3:48PM|#

They might find it strange that we don't have a gigantic statue of Washington, though.

I think once we explain that it's shaped that way because he's the father of our country, they'll get it right away...

|2.25.09 @ 3:53PM|#

The federal government serving as a check on state government, particularly in relation to civil liberties, is okay with me, so long as the states get to do the same. Which kind isn't true anymore, not since the beginning of the last century, anyway.

|2.25.09 @ 3:55PM|#

Chicago Tom/Episiarch

I swear, that tortured logic seems almost insultingly designed to just save local governments of the huge hassle it would create for them, and nothing else.

People who have a problem with political correctness feel the same way about objectionable speech. If you don't like it, turn it off.

Isn't allowing the jurisdiction discretion the only reasonable way to deal with it? why prohibit all monuments and order them torn down? That seems like an obviously wrong conclusion..

Stagman|2.25.09 @ 3:55PM|#

Not if they put you in jail.

1. Don't break the law. (Not matter how stupid)

2. Then move.

3. ???

4. Profit!

|2.25.09 @ 4:02PM|#

People who have a problem with political correctness feel the same way about objectionable speech. If you don't like it, turn it off.

How does one "turn off" something objectionable when it's a monument on public property?

|2.25.09 @ 4:09PM|#

Isn't allowing the jurisdiction discretion the only reasonable way to deal with it? why prohibit all monuments and order them torn down? That seems like an obviously wrong conclusion.

You are describing a utilitarian conclusion. That's not what SCOTUS is supposed to do. They are supposed to decide based on the text of the Constitution and precedent.

My overall point is that this court seems to be delivering a lot of utilitarian conclusions, and more often then not, to the benefit of government.

How does one "turn off" something objectionable when it's a monument on public property?

Don't stand there looking at it and fuming. Throw a football over it. Let your dog pee on it. I would say the same thing that I would say to some ultra-pissed-off feminazi who sees sexism in everything - "you don't have to let everything bother you"

If the government bought it, I'd say "dig the fucker up and throw it in the lake". But if someone wants to donate it, and the local government finds it unobjectionable for the majority of the community, I'm ok with it staying. This ranks pretty low on my tyranny meter.

|2.25.09 @ 4:13PM|#

Episiarch,

The Court has always been a bit results-oriented (i.e., picking the favored result and finding a justification for it, however convoluted, afterward), but it's been drifting more and more to favoring the government position over the last century. You're absolutely right--it's supposed to be determining whether government actions are permitted under the Constitution (among other things), not trying to protect status quo violations of the Constitution.

|2.25.09 @ 4:25PM|#

I do not see the logic as tortured. It is hair-splitting, but that is the nature of SCOTUS opinions.

Logically speaking, by the 10th Circuit's logic, that is, you should be able to erect any monument you wish at Battery Park or on the National Mall.

Wrong TAO. The 10th Circuit's logic was that if you allow a donated monument that is explicitly religious, you cannot reject a donated monument because you don't approve of the religious message. Since there are no 10 Commandments monuments on the Mall or in Battery Park, they can plausibly claim they are discriminating solely on aesthetics, which is legal.

I look forward to the next lawsuit against Pleasant Grove City, Utah for violating the Establishment Clause.

|2.25.09 @ 4:30PM|#

Nobody's linked to this yet?

A Suleman Litter-Baby|2.25.09 @ 4:36PM|#

"They're like little red teddy bears or something."

I'm cute too! And my mother's been offered a shot at the silver hardcore porn screen! Life is great!

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/02/25/state/n103410S81.DTL&tsp=1

The Angry Optimist|2.25.09 @ 4:37PM|#

The 10th Circuit's logic was that if you allow a donated monument that is explicitly religious, you cannot reject a donated monument because you don't approve of the religious message.

no, Mo, not correct. The 10th Circuit held that the City was engaging in content-based restrictions that were not narrowly tailored. The content-restriction was that the monuments were not part of the city's history.

Holdings from the Tenth Circuit:

(2)city park was traditional public forum;
(3) city's interest in promoting its history did not constitute compelling interest justifying allowing only historically relevant permanent displays in park;
(4) restriction on permanent displays in park also was not narrowly tailored to advance city's interest in historical promotion;
(5) policy limiting permanent displays was not narrowly tailored to promote other interests in aesthetics and safety; and
(6) irreparable harm, balance of harms and public interest criteria also weighed in favor of injunctive relief.

So the city was rejecting monuments, not because of their religious "flavor", but because of their historical relevancy to the city. The Establishment Clause was barely litigated.

Dyslexic Atheist|2.25.09 @ 4:49PM|#

may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration.

As well as a monument that there are no dogs.

Kolohe|2.25.09 @ 4:53PM|#

They might find it strange that we don't have a gigantic statue of Washington, though.

They see the washington monument, they hear 'pater patria' and they'll get the idea.

|2.25.09 @ 5:28PM|#

John,

The ACLU has sued on behalf of Fred Phelps before. They aren't a Christian bashing front.

I had never heard of the medicine wheel thing. I think it's inappropriate too, but not nearly as much of a threat to state/church separation as the deliberately theocratic moves of the Christian right in recent decades.

robc|2.25.09 @ 5:45PM|#

But it better because it's much easier to move away from a small town run by petty tyrants than a whole country run by big-time tyrants.

Also, if necessary, I can easily shoot my mayor (both of them). That is harder at the state and federal level.

Ben1|2.25.09 @ 7:25PM|#

Each and every one of you that espouses the "right" of the community's government, that entity that enforces rules and laws, to sponsor / advertise nonobjective beliefs of the majority to minorities within the community have really gotten a pathological idea of what government should be.

Because government is not a church - it is not a collection of mutual believers who do not, cannot, enforce their beliefs on others external to their church; because government is not toothless - it can, and does, force citizens to do this thing, and forbids them to do that thing; because a government represents common interests; because government sponsorship is a most direct form of coercion, as we see with the inclusion of "in god we trust" on our money, with the inclusion of "under god" in the pledge, with the expectation of swearing on a bible in a courtroom, with that erection of only-Christian-symbols on the lawn of any courthouse or park or other public space.

Ideally, American government at every level, absolutely including community government, should be entirely forbidden to sponsor one belief at the expense of another. Regardless of if the majority in the community follow that belief. This is tyranny of the majority writ small, but it is no less distasteful for its small scale. There is still some poor bastard who thinks -- 100% correctly -- that his government is aligned against him.

If government decides to create a forum for the expression of beliefs (as opposed to objective facts), then it needs to ensure that said forum is just as available to one belief as it is to the next. You'll note that in this case, the monument was donated; no costs were involved; instead, we are literally talking about government choosing one belief over another. If that doesn't get your attention, you should turn in your critical thinking card.

The best solution is that government stick to the task of protecting individual liberties (the polar opposite of what is happening here), to creating and maintaining infrastructure designed to benefit all; to supplying and/or regulating life-critical utilities; to serving the public. Not the majority, the public. Every bloody one of them.

Unfortunately, we're far too stupid, collectively speaking, to slot government properly. We can't even arrange for the supreme court, of all institutions, to be filled with people who can actually think their way out of a paper bag. Consequently, we have received as gifts ex post facto laws, seen the commerce clause utterly inverted, and watched as seven out of the ten amendments in the bill of rights have been reduced to toothless, echoing mockeries of the authorizations and restrictions their text directs the government to follow.

As I have said before, and will no doubt be moved to say with great conviction again, there is very little hope for the USA. We are so far down-slope from the optimal height of liberty, we can't even see the hill from here.

---------------

First they came for the Summumians...
Then they came for the Scientologists...
Then they came for the next non-Xian group...

Then, you stupid sonsofbitches, they're going to come for you if you continue to let them come for everyone else. And the really sad thing? You will do this. And you will whine loud and long about how you never saw it coming.

Mike Laursen|2.26.09 @ 12:00AM|#

Now, why the hell is the ACLU not suing over that?

Not buying into your strawman. If Christians were the United States' aboriginal people, and the army found an old Christian worship site and made it available to them, why would you expect secular people get upset about that? Seems reasonable.

My point is that most secular people in this society are not really secular, they just hate Christians.

If American Indians were the majority and were trying to push their peculiar morality on the rest of us, we'd resist. Resistance doesn't equate to hate.

scineram|2.26.09 @ 9:28AM|#

TAO >> Ben1

Stupid reasoning, good decision.

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