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SCOTUS Rules Government Has the Right to "Speak For Itself"

Today the Supreme Court issued a decision that will reverberate throughout this country. I'm surprised it's not getting more play in the media, actually. Here's the backstory. Pleasant Grove, Utah has a monument of the Ten Commandments as well as other monuments that private groups gave them on display in a city park. The religious group Summun wanted to place its own monument in that same city park next to the Ten Commandments. Pleasant Grove rejected the monument, Summun sued saying their free speech rights were violated, and the case went all the up to the Supreme Court. The Supreme Court ruled 9-0 in favor of Pleasant Grove, Utah. Here's the report from Reuters:

Attorneys for the city argued that the appeals court's ruling would require cities and states to remove long-standing monuments or result in public parks nationwide becoming cluttered junkyards of monuments.

The Supreme Court agreed. In the court's opinion, Justice Samuel Alito said the placement of a permanent monument in a public park was not subject to scrutiny under the U.S. Constitution's free-speech clause.

"It is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression," he wrote.

Jay Sekulow of the American Center of Law and Justice was Pleasant Grove's attorney, and ACLJ issued a press release in which it explains the decision this way:

In a 9-0 decision announced by Justice Samuel Alito, the Supreme Court concluded: "In sum, we hold that the City's decision to accept certain privately donated monuments while rejecting respondent's is best viewed as a form of government speech. As a result, the City's decision is not subject to the Free Speech Clause, and the Court of Appeals erred in holding otherwise. We therefore reverse."

The high court concluded that the government has the right to speak for itself without violating the Constitution. "The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech . . . A government entity has the right to 'speak for itself' . . . . it is not easy to imagine how government could function if it lacked this freedom . . . A government entity may exercise this same freedom to express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message."

This is a significant ruling because it has for the first time acknowledged that a government has the same right to free speech as an individual. What does this do? For one, ACLU lawyers everywhere are probably crying in their beers because the ruling puts an end to their lawsuits against local governments for putting up nativity scenes while not erecting religious displays from every other religious group. From here on out, any government, local or federal for that matter, can accept, as long as it's permanent, a monument or display of a nativity scene and put that monument or display in the public square. They can also reject a permanent monument or display with a different message from another private group without any repercussions.

This unanimous ruling also gives me hope that the SCOTUS might similarly rule that a radio station or a company that owns radio stations has the right to air whatever radio shows or opinions it wants while being able to reject opposing views it wants. These two cases are not directly related, but they are close enough that it could give us an indication of how this SCOTUS would view free speech regarding the Fairness Doctrine.


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Comments (35)

I am SHOCKED! 9-0 Decision... (Below threshold)

I am SHOCKED! 9-0 Decision? No wonder the ACLU is speechless......and not happy! When the ACLU is unhappy, the American people win. For a change.

Kim, to be honest, the GOP ... (Below threshold)
JC Hammer:

Kim, to be honest, the GOP is the one complaining about the Fairness Doctrine. Not one Dumbo has said anything about this. Quit trying to stir up BS. Who gives a damn what the left or right spout on any airwaves, except the GOP?

You have to start to realize that the average American has seen through the GOP BS. I realize it's hard for some of you to understand, but it's true.

But please keep spinning for your base, as they expect that from you. And yes, Rush Limpdick is a fat idiot, but he's yours, so let him rant and drive more people away from the Republican Party.

JC, that's untrue. Senator ... (Below threshold)

JC, that's untrue. Senator Debbie Stabenow (D-MI) and Senator Tom Harkin (D-IA) both said they want to bring it back. And Senator Chuck Schumer (D-NY) defended the Fairness Doctrine.

This is significant in rela... (Below threshold)
Edward Sisson Author Profile Page:

This is significant in relation to government grants to the arts. In the case National Endowment for the Arts v. Finley, et al., in 1998 or so, the question was whether the government infringed the free speech of artists who had grant applications turned down in part due to the content of the proposed work. The NEA had turned down grants to four artists based in part on the content of the works. The Supreme Court ruled 6-3 that the NEA could do this. In effect, a government grant in these circumstances is government speech, a statement by the government of its opinion of what work is deserving of recogition.

Oh the irony. Even GINSBER... (Below threshold)

Oh the irony. Even GINSBERG (one of their own) ruled against the ACLU's interests.

it has for the first tim... (Below threshold)

it has for the first time acknowledged that

Legislating from the bench! Activist judges! Oh wait, you approve of the decision, so never mind!

And Kim, would you get over your Fairness Doctrine obsession already? Yes, a couple of senators made throw-away comments that they want it back. But there's been absolutely no attempt to do anything about that, and Obama has already stated he's against it. It's a non-starter. Let it go.

This sounds good, but the A... (Below threshold)

This sounds good, but the ACLU will probably find a way to make it into something bad.

And Kim, would you... (Below threshold)
And Kim, would you get over your Fairness Doctrine obsession already? Yes, a couple of senators made throw-away comments that they want it back. But there's been absolutely no attempt to do anything about that, and Obama has already stated he's against it. It's a non-starter. Let it go.

The Fairness Doctrine is the main reason that the Dems wanted to grab the White House, because they knew if there was a Republican in the White House, this thing would be vetoed. The Dems have been wanting to shut down Rush Limbaugh and Sean Hannity, every since Clintoon was the President, but they did not have the means to do this. As for Obama stating that he was against instituting the Fairness Doctrine, that is a smokescreen. He made his intention of doing just that when he called out Rush a couple of weeks ago and Sean during the campaign.

Yeah, a couple of Senators ... (Below threshold)

Yeah, a couple of Senators have made off-hand comments. Something they do, oh, before pushing legislation in the Senate.

Damn Rethuglicans! Can't you go to sleep so we can sneak in all these restrictions on your freedoms without a fuss?

rack Hussein Obama being op... (Below threshold)

rack Hussein Obama being opposed to it... and so?

He was against earmarks to the point of declaring he would veto bills that contained them.

Notice how artfully he dodged a bullet in this weeks speech by saying no earmarks in "the next budget," clever that guy, now he gets a pass on signing the bill that just passed the House and will land on his desk sometime next week with thousands of earmarks in it.

<a href="http://i190.photob... (Below threshold)
"...a government has the sa... (Below threshold)

"...a government has the same right to free speech as an individual."

Wrong, wrong, wrong. A government is merely a delegated agent for a sovereign citizenry, not a principal with rights of its own. That's constitutionalism.

The result is sound, but the opinion would be more defensible if it were founded on less dubious premises:
1. "Public property" is no longer private -- i.e., there is no private owner who can exercise the rights of such -- but has been placed under the administrative purview of the state;
2. The state therefore exercises control of the property, in trust for the citizenry as a whole;
3. Accordingly, the rights over "public property" are exercised through governmental mechanisms. That includes all rights of occupancy, tenancy, exclusion, and behavior, which would be exercised by a private owner on private property, except for any specifically withheld under the applicable constitutional charter or land grant.

That's the rationale for allowing the state to make laws that apply to our "public roads." Why isn't it equally applicable to parks, beaches, and so forth?

This ruling makes sense. S... (Below threshold)

This ruling makes sense. SCOTUS ruled a few years ago that a corporation has a right to free speech so why not a gov.

I love the SCOTUS decision.... (Below threshold)

I love the SCOTUS decision. It's a big one and very under-reported.

Regarding the Fairness Doctrine: Remember that it never was a law. It was a "regulation" of the FCC. BHO's new FCC Chairman will sit down at the meeting table this summer. It can all happen without the Congress and, most importantly, without BHO signing a thing. He can be against it all he wants in public. The FCC can do it for him. The question is, would it survive the appeal process through SCOTUS?

Scalia has apparently previ... (Below threshold)

Scalia has apparently previously (DC Circuit days) said the Fairness Doctrine could be constitutional.

Ok, wait. No. I thought t... (Below threshold)

Ok, wait. No. I thought that Bork/Scalia ruling wasn't actually about the constitutionality - and that seems to be the case. Sorry for the interruption.

This is of course a great r... (Below threshold)

This is of course a great ruling. Not only does it make sense, but the unanimous ruling will stop the whacko's from spewing their faux offence at anything religious. Some good news in the bleak dreary democratically lead catastrophe. ww

Since the Fairness doctrine... (Below threshold)

Since the Fairness doctrine was instituted nominally to combat a scarcity - IE 2-5 TV stations per market and AM radio bandwidth limitations - I really find it hard to justify a Fairness Doctrine approach considering the current wide spread of choices available.

It's also telling that liberal talk radio didn't make it in the market. Air America is NOT in good shape - and forcing radio stations to take a ratings hit just to put on 'equal time' programming would be stupid.

But - we're talking Congress here. There's likely going to be a big push to do something about this bogus problem, and because Congress HAS to do things to justify their existence (rather like a shark, it has to keep swimming to run water across its gills) what they DO may not be exactly in the best interest of the nation as a whole.

But the shark has to keep moving. And it's ALWAYS hungry.

Hear that wingnuts? My Pre... (Below threshold)

Hear that wingnuts? My President told you to shut up and the supreme fort said you have to do what he says! LOL

Ref#8. If President Obama w... (Below threshold)
JC Hammer:

Ref#8. If President Obama wanted to shut up Limpdick and Hannity, all he has to do is declare them enemy combatants and jail them without a trial. President Bush did this to several people, and no outcry was made. So why couldn't Obama do it?

"The Fairness Doctrine is t... (Below threshold)

"The Fairness Doctrine is the main reason that the Dems wanted to grab the White House,..."

You can't be serious.

"President Bush did this to... (Below threshold)

"President Bush did this to several people, and no outcry was made."

Who was that, JC? Padilla?

Padilla was held for three-and-a-half years as an "enemy combatant" after his arrest in 2002 on suspicion of plotting a radioactive "dirty bomb" attack. That charge was dropped and his case was moved to a civilian court after pressure from civil liberties groups.

On January 3, 2006, he was transferred to a Miami, Florida, jail to face criminal conspiracy charges. On August 16, 2007, José Padilla was found guilty, by a federal jury, of charges against him that he conspired to kill people in an overseas jihad and to fund and support overseas terrorism.
Or are you talking about the many, many celebrities who were jailed for all their outspoken contempt of Bush? Oh, wait - they WEREN'T jailed. My bad...

"Hear that wingnuts? My Pre... (Below threshold)

"Hear that wingnuts? My President told you to shut up and the supreme fort said you have to do what he says! LOL"

Hey Justice, combining drugs can be bad for your health. And you're reading comprehension.

That's three, Mr Fan.... (Below threshold)
Bruce Henry:

That's three, Mr Fan.

@JC:Who precisely di... (Below threshold)

Who precisely did Bush jail primarily for the purpose of 'shutting them up' ? (Don't hurt yourself)

Not at all sure JC can come... (Below threshold)

Not at all sure JC can come up with an answer, _Mike_ - Padilla's about the only person I've heard of who was detained while coming into the US as an enemy combatant.

Well, aside from those trying to light their shoes in-flight, of course.

But if Bush HAD been having folks jailed, I'm sure we would have heard of a LOT more people. As it is, I think all we'll hear from JC is "I heard there were LOTS of people jailed". No names, no facts, no way to verify... So it must be TWUE!

"And Kim, would you get ... (Below threshold)

"And Kim, would you get over your Fairness Doctrine obsession already?"

As soon as Congress gets over their own obsession.

The Internet advocacy group Free Press "..dismisses these worries as a "distraction," arguing that the doomsayers [Fairness Doctrine alarmists] are improperly conflating the politically moribund rule with unrelated "localism" and media consolidation rules."

I would argue that what most of us are responding to is not the "localism" and changes to media consolidation rules, but those Democrats sounding support for something entirely different - the Fairness Doctrine itself.

Perhaps someone should explain the difference to the following people:

Jeff Bingaman - When asked if he supported the rturn of the Fairness Doctrine, he replied, "I do. Yes I do." ... "I would want this station and all stations to have to present a balanced perspective and different points of view."
Nancy Pelosi - when asked point blank if she supported a return of the doctrine, replied bluntly, "Yes."
Louise Slaughter - Way too many quotes on her to pick a winner, but she's been trying to get it reinstated since the day it ended.
Tom Harkin - "We've got to get the Fairness doctrine back on line."
John Kerry - "I think the fairness doctrine ought to be there, and I also think equal time doctrine ought to come back."
Dick Durbin - "It's time to reinstitute the Fairness Doctrine."
Dennis Kucinich - he needs no quoting, he actively tried to revive it in '07 and won't give up.
Henry Waxman - Not content with traditional media, TV and radio, wants to extend it to the Internet.
Charles Schumer - likened the conservative response to regulating talk radio to regulating pornography in this non-committal response "The very same people who don't want the Fairness Doctrine want the FCC to limit pornography on the air. I am for that... But you can't say government hands off in one area to a commercial enterprise but you are allowed to intervene in another. That's not consistent."
Trent Lott - "Talk radio is runnig America. We have to deal with that problem."
Dianne Feinstein - "Well, I'm looking at it [reinstatement of the doctrine]." as she commiserated with Trent Lott.

... and others

Furthermore, while they tout the virtues of reinstating such a doctrine, when cornered, they act indignant and wonder where people got the idea they support it.

If they're going to continue to make such noises stating their support for it, people will continue to respond.

Who's obsessed here?

OK, Oyster, I'll give you m... (Below threshold)
Bruce Henry:

OK, Oyster, I'll give you most of those quotes, but you DO realize who Trent Freaking Lott is, don'tcha?

As soon as Congress gets... (Below threshold)

As soon as Congress gets over their own obsession.... Who's obsessed here?


Today the Senate voted to ban restoring it.

"An uncharitable interpretation is that they (Republicans) need an issue that unites their base and is an easy talking point for conservative radio"

So NOW you can finally get over your easy talking point, but I doubt you will.

Thanks, Brian. Saw that, w... (Below threshold)

Thanks, Brian. Saw that, was going to put it up but got distracted.

Frankly, I hope they cut the head off it, shove garlic in its mouth, sew the mouth shut, put the body and head in separate steel coffins, weld THEM shut, put them in a 20' shipping container, fill THAT with concrete and weld it shut, then sink it in the Marianas Trench.

That MIGHT hold it for a few years. Or put a vampire out of commission, I forget...

Yes, Bruce. I KNOW who Tre... (Below threshold)

Yes, Bruce. I KNOW who Trent Freaking Lott is.

And I'm very glad to hear that, Brian. As I was at work all day, I didn't have an opportunity to catch any news. Why do you think the amendment was put in there though? It was because of quotes like the above and many, many more over the past couple years. No sooner did the Democrats take a majority of the house than they started making noises about "fairness" again.

If you want to call the response to all those quotes and the efforts to revive it by some as an obsession, then fine. Your insults don't bother me.

Ref #26.Does the name Ali... (Below threshold)
JC Hammer:

Ref #26.Does the name Ali Saleh Kahlah al-Marri ring a bell with you? Read more articles and you may find more names.

As usual the troll doesn't ... (Below threshold)

As usual the troll doesn't dig very deep, at least not into facts:


Today the Senate voted to ban restoring it.

Yes, but the Senate ALSO passed an amendment that would RE-ESTABLISH the fairness doctrine - simply under another name and process, but with the goal being the same result:

The Commission shall take actions to encourage and promote diversity in communication media ownership and to ensure that broadcast station licenses are used in the public interest."

As usual, it sounds harmless enough until you look at what they mean by it and how they intend to 'interpret' it. 'Whoops, this company owns too many stations that carry Rush, that's not in the public interest...'

Incidentally, this amendment was tacked onto the bill that would give a Representative to DC, one of the "several states" apparently. Where do we put the 51st star?

No sooner did the Democr... (Below threshold)

No sooner did the Democrats take a majority of the house than they started making noises about "fairness" again.

Some did. But others, such as the guy who would have to sign it into law, were against it. You just chose to get upset about the ones talking about it. And now that talking point has been taken from you. I'm sure you'll find other non-issues to get uptight about, though.

Brian, please feel free to ... (Below threshold)

Brian, please feel free to scan back through the months and years I've been commenting here and point to all the posts I've even mentioned the fairness doctrine. I think you might find one besides this thread if you look hard enough. Try as you might to paint me as some obssessed nit picker over this "non-issue" you're not doing a very good job of backing it up.






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