The Government Speech Doctrine: "Recently Minted," But Counterfeit
Document Type Article
Working paper
Abstract
The foci of this article are the ill-advised creation of a Government Speech Doctrine in Pleasant Grove v. Summum, 129 S.Ct. 1125, 172 L.Ed.2d 853, 77 USLW 4136 (2009) and its potential for substantial First Amendment mischief particularly with respect to the establishment of religion. Created out of whole cloth, with no regard for precedent, and in a case that did not even raise the issue of government speech; the doctrine permits the government to speak with viewpoint about controversial cultural issues upon which the government has no constitutional right to act. Asked to find unconstitutional the refusal of a municipality to allow a Summum religious monument – the Seven Aphorisms of Summum – in a public park, the Court ignored the refusal and created a justification for the municipality’s past permission to allow a private party to put a Jewish religious monument – the Ten Commandments – in the same park. This article argues that by avoiding the traditional public forum analysis and making an end run around the establishment problem, the Court created a doctrine that allows the government to diminish the marketplace of ideas. By creating a doctrine that allows the government to choose between private speakers and endorsing one idea to the detriment of another in an area where it has no constitutional power to act the Court has done substantial damage to the First Amendment.