Over on FindLaw, Professors Vik Amar and Alan Brownstein have a take on the Summum case that differs from my take (as expressed in my own FindLaw column on the topic a couple of weeks ago) in two key essentials. First, Amar and Brownstein say that government property can be a public forum---and thus the First Amendment can bar the government from discriminating based on the content of private speech in that forum---even though the private speech takes the form of permanent rather than temporary private statements. Second, they say that when the government opens up public property to the display of a wide variety of messages, some of which are inconsistent with one another, it cannot plausibly claim that this amounts to "government speech" to which the strictures of the First Amendment do not apply.
Both points are valid, but it's not clear to me that they are especially relevant to the actual Summum case. Let's begin with the permanence question. Amar and Brownstein provide a hypothetical example based on a minor variation of some real cases in which public parks permit community members to inscribe tiles or bricks with messages as part of a permanent display. Amar and Brownstein contend that by opening up this property to various private messages, the government creates a public forum for speech, in which it cannot pick and choose among messages, notwithstanding the permanence of the display.
That's fair enough, and what the example shows, I think, is that both the dissenting judges in the Summum en banc decision and I (in my column) were using permanence as a proxy for something else: effective scarcity. A park has only a limited amount of space for large freestanding permanent monuments of the sort at issue in the Summum case. Allowing the placement of one or even a half dozen such monuments does not obligate the park to chop down trees to make room for monuments covering the park. By contrast, the government can almost certainly accommodate just about all of the messages that members of the community want to display on small bricks or tiles.
What about the second distinction that Amar and Brownstein draw between their view and mine? I think they are clearly right that the government cannot reasonably be understood to be saying that it agrees with all of the messages---even those that appear to contradict each other, such as "New York Loves the Yankees Best of All" and "The Mets are The Big Apple's Number One Team." But this does not mean that the government has no speech interest in avoiding inclusion of messages that it does not want to be seen to convey or endorse, like "Yankees Suck! Red Sox Rules," or, more seriously, "White People Are the Master Race."
So, the question then becomes: Under what circumstances does the government interest in avoiding the appearance of endorsing distasteful views suffice as a basis for content-based restrictions? The Court held in FAIR v. Rumsfeld that a disclaimer can be sufficient to vindicate a private actor's free speech interest in disassociating itself from a distasteful message that government regulation pressures it to convey. If a disclaimer suffices for private parties, shouldn't it suffice for the government?
Perhaps, but I think that to say that assumes the answer to the forum question. Suppose a city wants to devote space in the park to permanent displays by civic organizations that contribute to tolerance and mutual understanding of people of different backgrounds and cultures. Requiring the city to include a Klan monument to white supremacy would completely undermine the city's goal, even with a disclaimer, because it would necessarily change the character of the forum as a whole.
I do not read Amar and Brownstein necessarily to disagree. Indeed, Professor Brownstein was kind enough to share with me a portion of a draft of a paper he is writing on the question when government may legitimately engage in content-discrimination to avoid placing its imprimatur on distasteful speech---and his analysis suggests that the answer is "sometimes," not "never." (The paper, not yet available online, is for a forthcoming symposium issue of the UC-Davis Law Review on the First Amendment in schools.) So, at the end of the day, Amar and Brownstein don't differ that much, if at all, from me. I read their column to be saying something like this: "Dorf may be right about the Summum case, given its facts, but claims about permanence and government speech don't apply with the same force in other contexts."
I can happily accept that. And I can also accept their conclusion (because it was also my conclusion) that there are, or at least should have been, difficult Establishment Clause issues presented by the Summum case.
Posted by Mike Dorf