Prof. Garnett on Pleasant Grove City v. Summum: “Roberts Court clarifies free-speech rules on government expression”

Author: Susan Good

Hear Prof. Garnett’s interview with NPR’s Nina Totenberg here:

Rick Garnett fall08

The Supreme Court’s 9-0 decision today (Feb. 25, 2009) in Pleasant Grove City v. Summum states that the government, when speaking on behalf of itself, is allowed to control its own message, and is not necessarily required to invite private speakers to join the conversation. “The Free Speech Clause, in other words, prevents the government from regulating or discriminating against private expression; it does not regulate the content of the government’s own speech,” explains Notre Dame Professor of Law Richard Garnett.

The case involved a small religious group, “Summum”, which argued that its free-speech rights were violated when the City accepted, and displayed in public, a Ten Commandments monument but declined a monument displaying the “Seven Aphorisms” of the Summum Faith. “In a long line of cases, the Court has ruled that governments cannot discriminate against private expression on the basis of the speaker’s viewpoint,” says Garnett. “If, for example, it allows an animal-rights group to display a poster in a public forum, it cannot turn around and deny similar access to a hunters’ group. Therefore, according to the Summum group, the government’s decision to accept the Ten Commandments monument required it to also accept and display the Summum exhibit.”

The Roberts Court unanimously disagreed, believing that the Ten Commandments display is, in this context, the government’s own expression and therefore not subject to the Free Speech Clause. Garnett says that this decision is consistent with a pattern of recent cases in which the Roberts Court seems to be pulling back from an expansive understanding of the public forum. “In the 1990s, the Justices found public forums everywhere, and this resulted in a number of decisions requiring the government to provide increased access to public property and funds for private speakers,” says Garnett. “The Roberts Court, however, appears to regard this expansion as unfortunate, and as excessively limiting the discretion government officials have over public property and state-supported speech.”

Garnett observed that the Court’s ruling is probably not the end of the matter. “The First Amendment’s no-establishment clause, as the Court understands it, does not permit the government to act or speak in a way that establishes or ‘endorses’ religion. So, the question remains whether the Ten Commandments display is constitutional. We can now expect the nature of the dispute to change, from a free-speech controversy to a church-state one,” says Garnett. “And, given the Court’s previous decisions regarding such displays, it seems likely – Justice Scalia said as much today in a concurring opinion – that the Pleasant Grove monument would survive an Establishment Clause challenge. After all, it is one monument among many, and – taken in context – it probably does not convey to the so-called ‘reasonable observer’ a specific government endorsement of religion. But, stay tuned.”