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Thursday, February 26, 2009

A Monumental Decision

UPDATE. Right now you must go to the Broward Blog and read the "THIS IS CRAP" decision by Judge Stanton Kaplan. Everything wrong with Broward is in this, including a vilification of Broward ASA Jeff "Dr. No" Marcus.  Go. Right now. Go


Monuments in parks are different from all other types of speech. The decision to place a monument, or not,  is a form of government speech and thus not subject to scrutiny under the free speech clause. 

Thus held the Supreme Court in Pleasant Grove City, Utah v. Summum.(The title links to the opinion.) Summum (for those few of you ignorant of Utah fringe religious groups) wanted to place a stone monument containing "the seven aphorisms of Summum" in Pioneer Park, which contains 11 other monuments, including that Constitutional firecracker, the Ten Commandments. 

Justice Alito ( Motto: "Not quite Scalia, but trying.") wrote that 
[T]he placement of a permanent monument in a public park is best viewed as a form of  government speech and is therefore not subject to scrutiny under the Free Speech Clause.

The 10th Circuit had held for the Summums(?) but the Supreme Court unanimously reversed and the City does not have to allow the seven aphorisms (which now may become 8: "a pox on the supreme court.") monument in the park.

The case came to the Supreme Court on this novel question: is a governmental entity's acceptance of a privately donated monument governmental speech, or private speech in a public forum? The former does not allow for petition to redress a grievance on free speech grounds, while the later obviously does. 

In holding for the City and finding that decision to place or not to place a monument is governmental speech, the court cited a long line of cases holding that a government is entitled to say what it wants,  including George  W. Bush's famous "fool me once...uh...if you fool me...in a second...ya can't trick me twice" or words to that effect.

From the opinion:
A monument, by definition, is  a structure that is designed as a means of expression.When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure... Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure

Quick REGJB quiz: Who is the judge on the monument across the street from the front of the courthouse?

This is an opinion worth reading. Any Alito opinion that prints the words to "Imagine" by John Lennon in their entirety, is worth spending a few minutes reading.  

Scalia concurred, joined by, surprise surprise, Thomas (the silent one.)
I agree with the Court’s analysis of that question and join its opinion in full. But it is also obvious that from the start, the case has been litigated in the shadow of the First Amendment’s Establishment Clause...The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment. ..The city can safely exhale. Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary—and, yes, even its Ten Commandments monument—without fear that they are complicit in an establishment of religion.

Say what you want, but "Justice Nino" can turn a constitutional phrase with the best of them. 

2 comments:

Anonymous said...

The judge's name in the monument across the street is Ben C. Willard of the old Criminal Court of Record. However, his bust or sculpture that was in the monument is long gone.

Anonymous said...

You fool me once, shame on - shame on you. You fool me, you can't get fooled again.

-GWB