Early Thoughts on Summum

I was re-reading Summum recently for my Seminar. And here is something that struck me about Justice Alito's opinion.

He starts off giving a tribute to the essential nature of government speech. He says:

-- "the Free Speech Clause... does not regulate government speech"

-- "a government entity has the right to speak for itself"

--government is "entitled to say what it wishes"

--government may "select the views it wants to express"

--"It is the very business of government to favor and disfavor points of view"

--"it is not easy to imagine how government could function if it lacked this freedom"

--"To govern, government has to say something, and a First Amendment heckler's veto of any forced contribution to raising the government's voice in the 'marketplace of ideas' would be out of the question."

Yet, without missing a beat or apparently even being aware of the contradiction, Alito goes on to say that of course "government speech must comport with the Establishment Clause."

Why should this be so? Why should the Court be so ready to accept a "heckler's veto" against passive government speech--such as a nativity display in a public park acknowledging the fact of the Christmas holiday? Why should we think that the government's critically important right to say what it wishes and to express the viewpoints it chooses is subject to being enjoined at the whim of any citizen who is offended by the government's message acknowledging a religious holiday? How could the doctrine of incorporation, which protects only "liberty interests" against state deprivations, give a citizen the right to restrict government from "saying what it wishes" by means of a passive display that restricts the liberty of no one, since all one need do if one is offended by a passive display recognizing a religious holiday is to avert one's eye? Is the "endorsement test" a liberty-protecting test, or is it a structural limitation on government that somehow was mistakenly incorporated as a "liberty" under the 14th Amendment?

Are hecklers' vetoes bad except when they are good?

These are the questions that keep me up late at night pondering the inconsistencies of the Court's treatment of government speech.

I sent this post of mine to a First Amendment Law Prof listserv and it generated the following debate:

Part One

Prof. Brownstein replies to me:

Just a few quick points.

1. There is nothing in Justice Alito's comments that limit his remarks about government speech to "passive" government speech. Government can say what it wants to say actively or passively. If government has unlimited discretion in communicating its own messages and that power is not limited by the Establishment Clause, why can't government proselytize in favor of particular faiths.

2. You could substitute spending for speech in most of Alito's comments. Government has tremendous discretion in deciding how it will spend its money. This power is not limited by the Free Speech Clause. But many of us would argue that the Establishment Clause constrains the government's power to subsidize the religious activities of particular faiths and not others.

3. Government may express passive messages in places other than public property. Suppose the government purchased a large cross and requested permission to locate it on the grounds of a particular church that it favored. Would that violate the Establishment Clause? If the government can single out a particular faith community's religious message and adopt it as its own and dedicate public property as the site for the communication of that message -- all in the name of unrestricted government speech -- why can't the government create its own religious display and exhibit it on private property that it selects (with the owner's permission)?

4. While I certainly appreciate the argument that government attempts to influence the religious beliefs of the community through government speech implicate religious liberty interests, I would have thought that the obvious value at issue in the Summum case was religious equality. The government adopts the religious message of one faith community and rejects the religious message of a different faith community. The analogy here would be a city that adopts religious displays to celebrate Christian holidays, but refuses to accept displays celebrating the holidays of other faith communities. The question raised by Summum that the Court alluded to -- but did not directly address -- is the extent to which the Establishment Clause limits this kind of government preferentialism. I suspect some of Rick's students may raise this point even though it is is not suggested by his comments.

Alan Brownstein

Part Two

I reply to Brownstein:

I appreciate Alan's many good points about the EC. Of course, we all discuss all of these points when we cover the EC in our classes.

My post about Alito's opinion in Summam--in which he describes the government's ability to choose its own message and its own viewpoints as essential to the conduct of government--and then says oh, but religious speech by government is different, raises a different issue which I think also deserves discussion in the classroom.

Certainly, religious equality is important, but so is cultural equality and political equality.

Imagine two passive displays in a public school--one is a nativity scene recognizing the fact that many in the community are celebrating Christmas, and the other is a gay pride display which says "support gay equality and stop homophobia."

Both of these displays are challenged by students who find them offensive--the nativity display by student A who is offended by the schools "endorsement of religion" and the gay pride display by student B, a conservative Christian who is offended by the school's endorsement of the message that his religious belief about human sexuality is wrong and must be "stopped."

Many of you would agree with Justice Alito that the government has a right to take a position denouncing "homophobia" and that we would deny an essential part of government's power if we allow student B a heckler's veto enjoining the government's right to express its message. So long as the government does not coerce student B into affirming his support for the government's viewpoint, his remedy is to avert his eye rather than to silence the government and those who wish to receive the government's message about gay rights.

But not so with student A and his objection to the Christmas display. Even though his liberty is in no way deprived by a passive display recognizing a religious holiday being celebrated by many in the community, he has the right to censor government speech endorsing religion. Suddenly, government speech is not so essential and is subject to a heckler's veto by anyone who takes offense.

If Alito is right and the essence of government is to speak out and take the viewpoints of its choice on issues that come up in the marketplace of ideas, why should the EC be interpreted as protecting a non-liberty interest of hecklers to censor religious viewpoints expressed by state and local governments?

Because student A feels like an outsider as a result of the state's nativity display? But doesn't student B, the religious "homophobe," feel even more like an unwanted outsider when the state endorse the gay pride display and the message that "homophobia" such as his religious beliefs must be stopped?

We all cover the issues Alan raises. But I suspect many of us do not point out the contrast between those offended by the government's secular speech and those offended by the government's religious speech. And even if you accept that the EC is properly incorporated as a "liberty" interest under the 14th Amendment, what explains the Court's many cases protecting non-liberty claims under the judicially-created endorsement test. The endorsement test is a structural test, not a liberty-protecting test.

I think it makes teaching the EC far more interesting when you ask some of these hard questions about the endorsement test as applied via incorporation to the states, and point out the contrast between what Alito's says about government speech in general and what he says only a sentence or two later about the EC as a limitation on the government's power to choose its messages.



Rick Duncan

Part Three

Prof. Laycock joins the debate:

Actually, I raised Rick's question in class today. Not with respect to Summum, which we haven't gotten to yet, but with respect to the difference between the remedy in Barnette and the remedy in Engel and Schempp. Students pretty quickly decided that government couldn't govern if it couldn't try to influence public opinion on political issues. Political issues require a collective decision; we debate and lobby and hold elections and eventually, the people or their elected representatives vote.

There is no need for a collective decision on religion. We don't have to vote to determine what religion we are; we can be a lot of different religions. Election campaigns and voting about what religion we really are would be a wholly unnecessary source of conflict. And letting the self-presumed majority, or noisiest minority, seize control of the government's religion without a vote is no better.

We protect individual liberty by maximizing individual choice, and with respect to religion, there is no reason to limit individual choice even to the extent of permitting government persuasion -- or government propaganda.

Part Four

I respond to Laycock:

I agree with Doug that unlike political issues, "we don't need to vote to determine what religion we are."

But much govt speech is not about political issues and elections. A lot of government speech "endorsing" religion has to do with govt recognizing religious holidays and recognizing religious cultural subgroups in the community or as part of the community's history.

If the EC endorsement test only prohibited government speech taking an official position on religious doctrines such as the doctrine of election or the divinity of Christ, I would not be too concerned (although I might still wonder how anyone has a liberty interest to justify such a claim under the incorporated EC). And frankly, the political process is almost always a sufficient check on govt endorsing specific religious doctrines.

But, of course, much govt religious speech is of the cultural type--Christmas displays or Ten Commandment displays and the like. In other words, it is not about elections, but about recognizing we are a nation of many different communities with many different cultures, including religious subgroups and religious cultures, and religious history.

Religious subgroups are part of the culture as well--if a public school may celebrate Gay Pride Week and Black History Month and Earth Day and Cinco de Mayo, there is no reason to forbid it from recognizing Christmas. Those who are offended by any of these displays can avert their eyes. There is no liberty to silence govt speech recognizing religious holidays and religious subgroups as part of a pluralistic community.

Liberty is best served by protecting the right of the govt to recognize that religion is part of the culture and by protecting the right to receive govt speech of those who wish to view religious displays as part of the govt's recognition of our culture and pluralism. The heckler's veto created by the endorsement test is a liberty-restricting, not a liberty-protecting, interest. It is a right to control what kind of govt expression a willing audience can view, even though the only burden on the Pl is the burden of averting the eye.

This is the kind of issue I love discussing in class. And my students understand that the solution is not as simple as saying that religious speech is different from secular speech under the First Amendment. Sometimes it is, and sometimes it isn't.

Part Five

Prof. Chip Lupu enters:

Rick likes to call the restriction on government religious speech a "heckler's veto," because that's a pejorative. And I must say that the "endorsement" approach, and a focus on "offense" taken by viewers, feeds that way of framing the issue. But there are far more powerful and persuasive arguments against permitting government to express religious sentiments, especially highly sectarian ones. First, there is the age-old problem of destructive fights over whose sentiments will prevail. (In which American cities will Allah be praised? In which ones will officials pray only in the name of Jesus?) Second, our government is supposed to be "under God," not one with God, or identified with a particular conception of God. Totalitarian states co-opt God, and loyalty to God, for their own purposes; the Establishment Clause forbids that in the U.S.

Rick keeps harping on "liberty" and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says "Christians welcome here"? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical).

Chip

Part Six

I respond:

Chip asks me:

"Rick keeps harping on "liberty" and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says "Christians welcome here"? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical)."


Okay. I'll play. If we assume that the EC is not incorporated--or is only incorporated to the extent of protecting substantial burdens on liberty interests (i.e., to protect against forced participation in religious practices or prayer)--then the cross on the lawn of City Hall does not violate the EC (because the EC does not apply at all). But not everything that is bad is constitutionally forbidden and not everything that is good is constitutionally required.

Indeed, the best check on this kind of practice is a combination of state constitutional law and democratic self government.

What about a city that puts up a large "no homophobes allowed" sign on the lawn of city hall. Is that unconstitutional? Does it make many citizens--and almost all conservative religious citizens--feel unwanted in the halls of government? Why should we allow govt to express such hurtful opinions?

The point is that all kinds of government speech is offensive to some citizens, and makes some citizens feel like political and cultural outsiders.

The Court and the law prof community exaggerate the harm caused by governmental religious speech and minimize the harm caused by governmental secular speech. When a citizen seeks to enjoin hurtful secular speech by government, we say we can't allow a heckler's veto to silence govt and the rights of the willing audience. When a citizens seeks to enjoin hurtful religious speech by govt, we say he has a right to silence the govt under the EC.

I guess, to return to my hypothetical (which is more typical than Chip's example), I think the Gay Pride and Nativity displays should be treated the same under the law--either they are both subject to being silenced by an offended passerby, or they both may stand and we tell offended persons to avert their eyes.

Perhaps the First Amendment should be read as a whole (FS, FE, & EC) to forbid government from endorsing any idea that offends anyone's sincere beliefs and conscience. No one should be told that he or she is a political, cultural or religious outsider as a result of the govt's speech. Of course, public schools may have to close and public parks may have to be stripped of most displays if we decide to respect everyone's beliefs from the harm of offensive govt endorsements. But that is the price we pay for a society that respects the hurt feelings of everyone.

Rick Duncan

Part Seven

Prof. Volokh joins:

Chip Lupu writes:

> Rick likes to call the restriction on government religious speech a
"heckler's veto,"
> because that's a pejorative. And I must say that the "endorsement"
approach, and
> a focus on "offense" taken by viewers, feeds that way of framing the
issue. But
> there are far more powerful and persuasive arguments against
permitting
> government to express religious sentiments, especially highly
sectarian ones.
> First, there is the age-old problem of destructive fights over whose
sentiments will
> prevail. (In which American cities will Allah be praised? In which
ones will
> officials pray only in the name of Jesus?)

I appreciate this concern, but let me ask: Since the Court
started viewing the Establishment Clause as a restraint on government
speech, we've seen lots of pretty divisive fights over religion in
public life (school prayer, the Pledge of Allegiance, creationism, and
the like). It's possible that these fights are less divisive and
destructive than the fights that would have happened over these subjects
if the Establishment Clause weren't enforced by courts as a restraint on
government speech. But what reason do we have to be confident of that?
What if Establishment Clause has proven more divisive than the problems
it was supposed to solve?

Eugene

Part Eight

I re-enter:

I think Eugene makes a great point about the divisiveness caused by the endorsement test.

When you enjoin a governmental religious display (such as the Nativity scene I keep "harping" about), you don't merely silence the govt. You also impose silence on the willing audience (private citizens who wish to see the display). These are many of the same people who were told to avert their eyes when they were offended by the Gay Pride display. This adds insult to injury, and results in people reasonably feeling like outsiders who must play a "heads you win tails we lose" game with their secular counterparts in the marketplace of ideas.

Rick Duncan

Part Nine

An exchange between Anthony Decinque and me:

Anthony Decinque writes:

Let's go back to the hypothetical from earlier, the one about the "anti homosexual" sign versus the "Christians welcome" sign. I thought that was a strong hypothetical that really hit to the heart of the issue. Why can the government do A but not B?

The answer, I think, is the one given by Madison. Government might be able to decide whether homosexuality is bad or good. In reality, this question seems too tied up in religion and innate response for government to do very well, but government could take an empirical (Enlightenment!) approach to the issue.

Turning to religion, however, government doesn't seem to have the same ability. The framers were standing at the end of centuries of religious strife that had settled nothing. Instead, there had just been decades and decades of bloody majority-rule. Religious questions do not lend themselves to earthly resolution.

I think the framers decided that religious endorsement by government would never be anything more than thinly-veiled majoritarian oppression. That's certainly a debatable proposition, but I think it was a conclusion that was well informed by history.

Based on that conclusion, religion was ruled off limits.

Duncan responds:

I don't disagree that at least as far as "Congress" is concerned, it has no business legislating whether a particular religion is good or bad. Of course, that is a structural limitation on the power of the Federal Govt to act. The issue for incorporation is how that structural limitation translates into a liberty interest when it is incorporated under the DPC.

But even if govt has no business acting as a Theocracy and legislating good and bad religious doctrines and official prayers, it is certainly the business of govt to adopt policies recognizing that in a pluralistic society many different groups are welcome in public schools and at city hall. My hypo involving the respective challenges to a Gay Pride Display and a Nativity Display in a public school or public park goes to the very essence of state and local governmental power to embrace diversity and pluralism.

What is the message the law sends to religious families in the public schools when it ignores their complaints about a Gay Pride Display but forbids a Christmas Display under the endorsement test? This is not a case of govt taking an official position on religious truths and religious untruths. It is a case of govt exercising its clearly legitimate power to recognize that in a pluralistic society many different groups come together in the public schools and they are all welcome; and those who are offended must avert their eyes, because we don't give them a heckler's veto to enjoin the Welcome Wagon.

Under the endorsement test, the message is very different. Those offended by a display recognizing a religious holiday are empowered to enjoin the welcome sign.

Doug Laycock is certainly correct that religious students are not completely silenced, in the sense that they can go home and put up their own nativity displays in their living rooms. But they are silenced when in school. They must walk through the halls seeing displays recognizing Gay Pride, and Cinco de Mayo, and MLK Day, and Earth Day, and (ironically) Diversity Day, but they must stand by and watch religious displays be torn down at the behest of any offended member of the community. It is literally a game of heads you win, and tails we lose. And they know it. And it hurts. And it harms the cause of public education and community.

I think it was Chip who said I used the term"heckler's veto" because it is a negative word that scores points without further reasoning. But the term "heckler's veto" was used in Summum by Justice Alito to describe those who wish to enjoin govt speech merely because it offends them. Those who attack a Gay Pride display because it offends them are rightly turned away, because they are trying to exercise a heckler's veto. The same is true of those who seek to enjoin Nativity Displays and similar religious displays that offend them. They are trying to silence their fellow citizens who are a willing audience for the welcoming message of these displays.

The law treats one group of hecklers one way; and the other group of hecklers another way. And the message of inequality is clear to religious subgroups who are part of our pluralistic society.