Bench Memos

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Crying Wolfe


On the New Republic’s website, Alan Wolfe offers a terribly confused criticism of the Supreme Court’s ruling Tuesday in Pleasant Grove City v. Summum that the First Amendment’s Free Speech Clause did not give a private group a right to place a permanent monument in a city park in which other donated monuments were previously erected.  Justice Alito’s opinion was joined in full by all the other justices except Justice Souter, who filed an opinion concurring in the judgment.  In addition to joining Justice Alito’s opinion in full, Justices Stevens (joined by Ginsburg), Scalia (joined by Thomas), and Breyer also wrote concurring opinions.


Central to Alito’s opinion was his reasoning that “the 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.”  Wolfe bizarrely accuses Alito of “making up law out of whole cloth” and of “twist[ing] the meaning of words so out of shape that only a deconstructionist could admire it”.  Wolfe finds deeply offensive the whole notion of a government’s freedom to express its views.  And he proceeds to a series of non sequiturs, culminating in “if the government wants to nationalize the banks, shouldn’t it have the right not only to say so but to actually do it?”


Let’s consider some of Wolfe’s errors:


1.  Wolfe contends that Alito’s opinion “relied on reasoning [about government speech] that drew strong objection from some of the Court’s more liberal members.”  But every justice except Souter joined the opinion in full. 


Stevens’s concurring opinion calls Alito’s opinion “persuasive”.  Although Stevens calls the “recently minted government speech doctrine … of doubtful merit,” he states that Alito’s opinion “signals no expansion of that doctrine.”


In his concurring opinion, Breyer states that he “agree[s] with” Alito’s opinion” on “the understanding that the ‘government speech’ doctrine is a rule of thumb, not a rigid category.”


Even Souter, in his opinion concurring in the judgment, emphasizes his agreement with Alito that the Ten Commandments monument erected in the park “is government speech”.  He merely states that he has “qualms … about accepting the position that public monuments are government speech categorically.”


2.  Wolfe seems to have given no thought to his position that governments don’t have any freedom to express their views.  Alito explains in a simple two-sentence paragraph that “it is not easy to imagine how government could function if it lacked this freedom”. 


3.  Wolfe imagines that Alito’s position would leave “the First Amendment’s prohibition of a religious establishment … ripped to shreds.”  Never mind that Alito makes clear that there are “restraints on government speech”, including that “government speech must comport with the Establishment Clause.”  Wolfe evidently missed that part of Alito’s opinion.


4.  Wolfe imagines that there is something novel about Alito’s reasoning.  But as Stevens himself makes clear, Alito’s reasoning is entirely consistent with the Court’s precedents.

Tags: Whelan


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