but this Wolfe blows no houses down. Ed is right that Alan Wolfe’s criticism of Justice Alito’s opinion in Pleasant Grove v. Summum is bizarrely wide of the mark.
Wolfe goes wrong from the first, when he supposes that Alito has invented some “right to free speech” possessed by governments and that this is somehow more capacious than anyone else’s freedom of speech. While Alito refers to governments’ speech, and even to their “freedom” to speak, his whole point is that the First Amendment “right to free speech” belongs to individuals and constitutes a restraint on government where they are concerned. But when government itself is doing the speaking–as it does all the time–it makes no sense to talk about a restraint, springing from the First Amendment freedom of speech clause, that would control what the government chooses to say. Other provisions of the Constitution, such as the establishment clause, may restrain it (as Alito and every other justice acknowledge, a fact Wolfe somehow misses), but there is no form of constitutional logic that can get us from the premise “individual freedom of speech is protected from the government,” to the conclusion “government is itself restrained in what it can choose to say,” without some one or more minor premises in between. There is no sign that Wolfe has even imagined what these might be. But that is because he is off on a tear about John Stuart Mill before he has stopped to read the opinions in Summum, and think for a moment.