Nelson Tebbe[*]

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I.

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations?  Two cases this year call that question to mind.  They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a Ten Commandments monument that a private religious organization donated to a city.[1]  The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took ownership of the monument itself.[2]  The Justices therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monument—The Seven Aphorisms of Summum—alongside the Ten Commandments.  Finding the existing monument constituted government speech allowed the Court to dismiss Summum's claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment.  The Court reasoned that Pleasant Grove could exclude Summum's monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives.[3]  (Of course government endorsement of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated, as I will explain.[4])  You can think of the city's decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it "publicized" a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message.

On the other hand, consider Salazar v. Buono, which the Court will hear in the fall.  It concerns a white cross that has long stood in the Mojave National Preserve.[5]  After a lower court ruled that the cross was an unconstitutional establishment,[6] Congress intervened and conveyed the small parcel of land containing the cross to a private organization.[7]  Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message.  Yet Congress retained ties to the land, including a property interest and certain regulatory power.[8]  The transaction's highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message.[9]

Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument.  In fact, another religious group—a Buddhist organization—initially sparked the controversy over the white cross when it wrote to the National Park Service and requested permission to display its monuments nearby.  Although the Buddhists never brought legal action, it is not totally inconceivable to imagine them arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms.  As things turned out, however, only one constitutional issue is before the Court—the antiestablishment request to undo the privatizing transaction—and the government's evasion of that claim is likely to succeed, at least in the short term.