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"Government Speech" And the First Amendment

[ 0 ] February 25, 2009 |

As was widely expected, the Supreme Court today that Pleasant Grove, Utah’s unwillingness to display a monument erected by the Summum did not violate the religious group’s free speech rights. Alito, writing for the Court, argued that “the placement of a permanent monument in a public park is best viewed as a form of government speech.” Once the action is held to fall into the “government speech” category, there was no First Amendment violation, as the government (while it may be required to provide neutral access to public fora) is not required to be impartial when speaking itself, as long as its speech is consistent with the Establishment and Equal Protection clauses.

In an interesting concurrence, however, Justice Stevens attempted to draw some useful distinctions between today’s case and previous cases held to be in the “government speech” category. For example, Altio’s opinion approvingly cited Rust v. Sullivan, in which the Court narrowly held (over three dissenting opinions, including one by Stevens) that the infamous “gag order” that prevented any medical professional receiving federal family planning funds from even discussing abortion with a patient did not violate the First Amendment. As Stevens points out, however, there’s a major difference between the two cases: the gag order interfered with private speech, which today’s decision did not, as Pleasant Grove didn’t do anything to prevent the Summum from displaying a monument on their own property. I agree with Stevens that today’s decision is sturdier than many of the much more dubious “government speech” cases.

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