Legal News

On the Seven Aphorisms, Private Speech and . . . Beef?

By Dan Slater

Thirty miles to the north, in Salt Lake City, adherents of a religion called Summum gather in a wood and metal pyramid hard by Interstate 15 to meditate on their Seven Aphorisms, fortified by an alcoholic sacramental nectar they produce and surrounded by mummified animals. — The New York Times
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In the canon of First Amendment law, it’s a smaller issue that often gets addressed at the end of the semester: What constitutes private speech in a public forum? The denial of private speech made in a public forum requires higher constitutional scrutiny than does speech made in a public forum by a governmental entity.

Here’s how the issue will come to the Supremes in a case to be argued tomorrow: In 1971, Pleasant Grove City, Utah, accepted a red granite monument featuring the Ten Commandments for placement in a local park. But in 2003, when the president of the Summum church asked the mayor of Pleasant Grove City to accept a monument inscribed with the religion’s Seven Aphorisms, the city said no thanks.

The constitutional issue, then, is whether, because Pleasant Grove City accepted the Ten Commandments monument, it must accept the Seven Aphorisms monument. In other words, is the Ten Commandments monument private speech, making the city’s denial of the Seven Aphorisms display subject to strict scrutiny, or is it government speech, in which case the speaking government entity has greater freedom to pick and choose among messages? (Here’s background on the case from the First Amendment Center and the New York Times. For the filings, hit Scotus blog.)

The Tenth Circuit Court of Appeals sided with the Summum plaintiffs, ruling that the Ten Commandments display was private speech in a traditional public forum. That means the city’s refusal to accept the Seven Aphorisms display met with a strict scrutiny analysis, and was found to be content-based discrimination.

When the city sought review by a full panel of the 10th Circuit, it’s motion was denied. But a dissenting judge said the city’s actions constituted government speech because the monuments — here, the Ten Commandments — were under the city’s control. The judge lambasted the majority opinion: “Every park in the country that has accepted a VFW memorial is now a public forum for the erection of permanent fixed monuments; they must either remove the war memorials or brace themselves for an influx of clutter.”

Interestingly, as the First Amendment Center’s Tony Mauro points out, both sides are citing Johanns v. Livestock Marketing Association, a 2005 case that has nothing to do with religion. There, Mauro explains, certain beef producers objected to a congressionally mandated marketing program funded through a fee imposed on cattle sales. The beef producers claimed they were being compelled to fund a message — “Beef: It’s What’s for Dinner.” — with which they disagreed, violating their free-speech rights. But by a 6-3 vote, the Supremes held the program was government speech, in spite of its funding source, and therefore did not violate the First Amendment.

Full post as published by Law Blog - WSJ.com on November 11, 2008 (boomark / email).