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Friday, July 17, 2009

Private Law Transactions and Public Law Obligations

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: Summum v. Pleasant Grove and Salazar v. Buono.  They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

Four of us are preparing short pieces on Summum for Northwestern Law Review’s Colloquy. The other contributors are Joseph Blocher (Duke) and Prawfs alums Christopher Lund (Wayne State) and Bernadette Meyler (Cornell).  We are still working through the editing process, but I thought I’d preview my thoughts here.  A draft of Chris Lund’s piece is already available on SSRN.  I’ll post links to the others when they appear.

The two cases present the question in different ways.  On the one hand, the Court recently handed down Summum, which involved a Ten Commandments monument that a private religious organization donated to a city.   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 title to the monument itself.   It therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monumentThe Seven Aphorisms of Summumalongside 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.   (Of course government adoption of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated: Summum wanted its monument included, and did not want to risk the exclusion of both.  Moreover, an antiestablishment challenge probably would not have been successful under Van Orden, as Chris Lund has pointed out.)  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 Buono, which the Court will hear on October 7.  It concerns a white cross that has long stood in the Mojave National Preserve.   (Photos and a description appear on the NPS's website.)  After a lower court ruled that the cross was an unconstitutional establishment,  Congress intervened and conveyed the small parcel of land containing the cross to a private organization.   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.   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.

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.  It is not totally inconceivable to imagine a minority sect 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 in Buono—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.

One of these cases, then, asks whether government can avoid a constitutional difficulty by publicizing private sectarian speech, while the other asks whether government can evade a different constitutional problem by privatizing such expression.  Both of them present their issues in the context of government stewardship over its property, specifically real property that it has opened up to the public as parkland.  Both involve government evasion of one constitutional question in a way that may raise a countervailing constitutional difficulty.  And both will probably be resolved in favor of the government on the ground that it has successfully insulated itself from a constitutional challenge through actions involving a property transfer.  (Summum already has been decided that way).  Generally, then, both cases concern the interrelationship between private law arrangements and public law obligations.

Differences separate the cases, of course.  Most obviously, Summum was litigated exclusively as a speech case, while Buono presents only an antiestablishment question.  Moreover, one concerns a locality, while the other challenges the federal government.  Nevertheless, they can profitably be thought through together.  Juxtaposing them may teach us something about government use of private law transactions to avoid public law obligations, especially constitutional duties.

One question is whether the outcome of each case is correct (assuming I have accurately predicted the result in Buono).  What people think about that will depend on their underlying theories of antiestablishment and freedom of speech.  Some may focus on citizens’ autonomy around matters of conscience and expression, while others may prioritize evenhandedness toward sects or viewpoints.  Yet apart from the outcome question, there is the matter of whether straightforward application of property rules to these cases adequately serves the constitutional values at play.  Does saying that a city’s acquisition of a sectarian monument effectively renders its message government speech, thereby putting it beyond the reach of the Speech Clause, capture everything the First Amendment either permits or requires? Does it satisfy public principles to say that Congress can manage its Establishment Clause obligations by means of a sophisticated land transaction that formally privatizes the religious symbol?  In short, are courts asking the right questions?

Posted by Nelson Tebbe on July 17, 2009 at 01:10 PM | Permalink

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