Should a city be allowed to display a permanent Ten Commandments monument in a town park, without also displaying symbols of minority religions? May Congress sell a parcel of national parkland containing a large cross in order to evade what would otherwise be a violation of the Establishment Clause?
At a forum held on September 9, a panel of four legal experts focused on these and other issues arising from two Supreme Court cases, Pleasant Grove City v. Summum and Salazar v. Buono. Both cases have courts and scholars confronting difficult problems of the interactions between property law and constitutional rules concerning free speech and antiestablishment.
Brooklyn Law School Professor Nelson Tebbe organized the forum, inviting Joseph Blocher of Duke University School of Law, Christopher Lund of Wayne State University Law School, and Bernadette Meyler of Cornell University Law School to be panelist. Each professor had written an essay reflecting on the court cases that was published in the Northwestern Law Review Colloquy last summer. The event was held as an early commemoration of Constitution Day, September 17. It was co-sponsored by the American Civil Liberties Union, Brooklyn Law School Secular Legal Society, Christian Legal Society, Federalist Society, Jewish Law Students Association, and the Muslim Law Student Association.
Professor Tebbe explained that the Court turned away a free speech challenge brought by the Summum, a minority faith whose members wanted to display its Seven Aphorisms alongside the Ten Commandments monument in a park. Because of the way the case was presented, the antiestablishment questions were not considered. The Court concluded that the monument became government speech when the city accepted it as a gift, displayed it in a municipal park, and took ownership of it formally. When the government itself speaks, it can select its message without giving equal time to other perspectives.
Buono, which will be heard later this fall, concerns a large white cross that has long stood in the Mojave National Preserve. “After a lower court ruled that the cross was an unconstitutional establishment, Congress intervened and conveyed the small parcel of land containing the cross to a private organization,” Professor Tebbe said. “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. 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. 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.”
Will the transfer of property from the government to a private party suffice to destroy government speech, just as transfer from a private party to the government in Summum was sufficient to create it? And if not, what is the government supposed to do?
Professor Lund said the case raises complicated questions about how the marketplace of ideas incorporates conceptions of property, including such fundamental questions as how physical property is or can be transposed into the marketplace of ideas and how ideas themselves have property-like characteristics. He said Summum is not a groundbreaking case, but it offers the opportunity for reflection on the intricate intersection between the Free Speech, Free Exercise, and Establishment Clauses. Buono is a far harder case than Summum, and the Court will have a tougher time with the issues of governmental and private speech it raises.
Read the papers published in the Northwestern Law Review Colloquy.
View video from the event.