Concluding a Discussion of the Supreme Court's Term: The First Amendment

In the context of our understanding of the first amendment to the Constitution of the United States, the October 2021 term was BIG NEWS.

Just to warm up, let's quote this amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peacefully to assemble, and to petition the government for a redress of grievances.  

I'd like to begin by calling your attention to those last two phrases. The people have the right peacefully to assemble, and to petition the government (which includes the judiciary) for a redress of grievances. 

After this term was over, there were lots of people who wished to peacefully assemble in the proximity of Justices' residences. Their grievance was their dissatisfaction with the Dobbs case we discussed in the first of these posts. It is safe to say that they want a redress of their grievance in one manner or another, as for example, if the Court could find a way next term to say "oops" and reverse Dobbs.  

Of course it won't. But plausibility doesn't define what is or is not a "redress of grievances." So the present Supreme Court, I think it is safe to say, is very much of the wrong side of the dispute over its effort to get the police in Maryland and Virginia to rescue them from the annoyance of peaceful assemblies. Our rights have taken a haircut here, justifying the photo above. 

But now let's go to the first words of the amendment. The first thing Congress is told to make "no law" about is "an establishment of religion." What does this mean? On one level it means that the United States is to have no official Church, no analog of the Church of England. But it clearly doesn't mean ONLY that. The words don't say "Congress shall create no national Church." They say Congress shall make no law respecting a particular subject, language that suggests a broader intent. 

The Lemon Test Has Been Overturned  

So: what does the establishment clause mean? In the case of Lemon v. Kurtzman (1971), the Supreme Court set out a three-part test that state laws must be able to pass in order to survive a challenge that they are prohibited laws respecting at establishment of religion. The slices of this lemon are: first, a law must have a secular purpose (laws supporting education have the secular purpose of producing well-educated adults). Second, its principal or primary effects must also be secular (so both legislative intent and actual consequences are examined.) Third, it must not produce an "excessive entanglement" of Church and State. The phrase itself suggests that this can be a quite subjective judicial judgment, and LEMON has drawn a lot of criticism from the day it was announced.

This was the year that the Lemon bit the dust. That would be the headline case of this session had it not been for the Roe/Dobbs thing. The case that caused the demise of the Lemon test involved a (public school system) high school football coach who prayed at midfield. He prayed there immediately after games, it became what one might fairly call a routine ritual, and his players would join him for the moment. 

The school board put an end to this practice, saying that if they allowed it they would be engaged in an excessive entanglement of Church and State, and thus in violation of Lemon. 

The Supreme Court didn't see it that way. In the majority opinion by Gorsuch, the Court struck down Lemon, and said that the Framers intent and the pertinent history persuades them that this was not an establishment of religion. 

Gorsuch also argued that on its face the school board's order halting these prayers violated both the "free exercise" language and the "free speech" clause. That facial appearance could be overcome IF the school board has some good reason for its order. But it did not (since its reliance on Lemon for the alleged good reason was in Gorsuch's view misguided). So the coach can go back to praying.

In dissent, Sotomayor wrote that the "twin Establishment concerns" have long been "endorsement and coercion." The public schools should neither be thought to endorse specific religious practices nor to coerce -- however subtly or indirectly -- anyone's participation. In this situation, it may well be that disbelieving team members will feel on the out with teammates, and in danger of spending a lot of time on the bench, if they do NOT participate.  That is coercive, especially for teenagers.  

Kennedy was only one of the two closely-watched Church-State cases this term.  The other big one was Carson v. Makin.  

Maine has some very rural regions. There are school districts where there is no public secondary school. In order to ensure an educated population, then, the state has a tuition program that subsidized students in such districts attending private secondary schools. But, in accord with prior rulings, Maine has not been making these payments to students in schools with religious instruction. 

Two Maine couples argued that this policy punishes the free exercise of religion. The majority, in an opinion by Justice Roberts, agreed. These two cases were both decided in 6-3 lines, with the "blue" Justices dissenting. 

Raising a Flag in Boston 

This is a free speech decision. As is usual with such cases, there is a clear demarcation. One side found that the speech in question was constitutionally protected speech and the purported censorship is void. the other finds either than it is not speech at all or that it is not protected speech, and in either case the ban of whatever-it-is, is permitted. So we can call them for short the anti-ban and the pro-ban side. 

In SHURTLIEFF v. BOSTON the anti-ban side wins. But what sets this case apart is what "ban" mans in this context. Government has the authority to undertake its own speech. Governments as a consequence have the authority to decide who will speak for them in certain contexts and to give those people instructions about what to say and what NOT to say. Every department of government at every level has official spokespeople. And they all have bosses.  For those bosses to say "don't discuss the budget projections at your press conference Tuesday, Mervin," is not a ban. It is not a first amendment issue.

But if the government creates a public forum, it cannot treat what anyone says within that forum as "government speech" and give orders to the speakers as it would to a press secretary.

And that is what happened in this situation. Boston has three flag poles in front of its City Hall. One of these poles always holds the flag of the United States, another that of the Commonwealth of Massachusetts. The third USUALLY holds the flag of the City. But that is the gist of the matter. Boston has also been using that third pole as a public forum. It has routinely approved requests to raise hundreds of different flags on that pole for designated periods. It didn't deny any such request until the plaintiff, Harold Shurtlieff, requested that his group be permitted to fly what it described as a "Christian flag." This involved a red cross on a blue field. See above.   

Boston City Hall sits on City Hall Plaza, a 7-acre expanse deliberately designed to be a "public gathering space." Raising a flag in Boston.

The majority quite reasonably found that for Shurtlieff to fly his flag is symbolic speech. Of course if Boston wants to announce a policy in which the flagpole becomes a site of "government speech" again, it can do so. The third pole could be designated as entirely for the City's flag.  But if it is a public forum then the "public" can't be defined so as to exclude Shurtlieff.

The vote was unanimous. Alito, though, wrote a concurring decision that was in many doctrinal respects a dissent. This doctrinal dissent was joined by Thomas and Gorsuch.  I don't understand the Alito decision. My suspicion is that these three Justices wanted to say "yes, we approve of letting this group fly this flag because we approve of the message -- but we want to reserve judgment for the next case when the flag turns out to be one don't like." 

Senator Cruz and Campaign Finance

I'm not even going to go here. Cruz won. I think he had a point on principle, and I don't approve of campaign finance machinery at all. 

But Cancun Cruz is a Trump's-butt-kissing cock-a-doodie. And his continued prominence on the public scene is a bad sign for all of us. So I will only report that the vote here, when the decision came down in May, was a 6-3 split along red-blue lines. 

I have to approve of it but I don't have to like it. 

The next and final case that we will discuss in this year's SCOTUS roundup, like this Cruz financing thingy, hails from Texas. 

SCOTUS and Social Media

In an order, issued without opinion on May 31, the Supreme Court (Netchoice v. Paxton) granted a request by technology groups, and reinstated an injunction by a district court judge that keeps Texas from enforcing its social-media law, at least until the matter has been litigated further.

This was a 5-4 vote. Scotusblog calls it "ideologically scrambled." The majority includes two of the blues, Breyer and Sotomayor. But it also includes Chief Justice Roberts and two of Trump's three picks, Kavanaugh and Barrett. 

Supreme Court blocks Texas social media law from taking effect : NPR

The minority, then, consists of Kagan, oddly linked in this cause with Alito, Gorsuch, and Thomas. There was no written opinion for the majority, simply an order restoring the injunction of the district court. But there was a written opinion for the dissenters, or at least for the three "red" dissenters. Alito wrote for himself, Gorsuch, and Thomas. Kagan simply issued a brief statement that she, too, would have allowed the law to take effect. It would be good to have some insight into her reasoning.

The majority's reasoning I think we know, though, even in the absence of any explicit statement. They've decided that Twitter and Facebook are more like shopping malls than company towns. 

A company town is what it sounds like. It is a town built on company land, for the benefit of a company's employees. It may look a lot like other towns, with homes, retail establishments, movie theatres, streets, and parks. All privately owned. There is precedent establishing that one DOES have free speech rights in a company town. The company stands in the place of the state government, and cannot censor you in ways that the state cannot. MARSH v. ALABAMA (1946).

In the late Warren Court era, the Supreme Court extended this notion to a shopping mall. The owner/developer of a shopping mall is running a 'company town' without the sleepovers. If you want to picket about a political issue in the food court, that is your first amendment right. So the court said in  the LOGAN VALLEY case in 1968. 

In subsequent years though, the Burger Court first narrowed, and then reversed altogether, the LOGAN VALLEY decision. I happened to be in law school when LOGAN was overturned, in the PRUNEYARD case of 1980. (Yes, that makes me pretty old.)  It created quite the splash. One common observation was that there must in principle be a line between company towns and shopping malls, but it may prove difficult to locate that line precisely.

Concluding on a Hopeful Note

Now we're arguing the same point, but in the virtual world rather than the physical world. Texas is saying that it will require social media companies to offer their 'shoppers' free speech rights in the virtual equivalent of the food courts. [Social media are advertiser supported, so the shoppers-in-the-mall comparison is pretty apt.] 

Texas is not doing anything real for the cause of free speech by virtue of this law. If Trumpets think twitter is being mean to them they can take their shopping elsewhere -- into Facebook or Instagram or Truth Social. Or they can buy Twitter, though as recent headlines indicate that isn't supposed to be easy. They have the same options one may fairly attribute to the shoppers in the malls involved in the Logan Valley and Pruneyard cases. The reason Texas' legislature has enacted this law is precisely because Twitter blocked a former President from continuing with his incendiary tweets. Twitter's private nature helped serve as a BARRIER to a power grab. 

Good going! Long live the Pruneyard precedent and the non-state character of non-state owners.  

It is this 5-4 vote that fives me hope going forward, and so it is on this note that I choose to end. My gut feeling is that Kagan went along with her two red colleagues for procedural reasons, and that if the same facts were presented to her in a different posture she would vote with the majority. That would make it a majority of six, leaving Thomas, Kavanaugh, and Barrett in isolation. 

I cannot be confident, but I can reasonably be hopeful, that this 6-person majority will gell, leaving the three I just named in an isolated position going forward. 

The substitution of Jackson for Breyer doesn't change the arithmetic here. But it may change the dynamics a bit to have a more youthful voice among the blues.

We must imagine Sisyphus happy.