Roe V Wade, Elena Kegan, Government discussed on Bloomberg Law


Of a draft opinion overturning roe V wade used up all the oxygen around the Supreme Court little noticed was an opinion in which the justices were unanimous in deciding that Boston violated the constitution by refusing to fly a Christian civic group's flag at city hall while raising the banners of some 50 other organizations The justices rejected the city's contention that its flag raising program was a form of government speech that wasn't subject to the First Amendment something that justice Elena kegan was unequivocal about during the oral arguments A program that basically now says and previously we welcome all comers except for the most reprehensible discriminatory speech and religious speech That's what this program is And why should we understand that to be government speech to say everything's good Accept religion Joining me is First Amendment law expert Timothy zick a professor at William and Mary law school Justice Breyer wrote the majority opinion and said the central question was whether the city had created a public forum for private speech Can you explain that for us Sure So when the government opens up a public space they applaud their or something like that for private speakers to come in and sort of diversity of views to let them communicate in that space then it's opened up essentially a forum for private speakers And that's distinguished from the government using a space or a property to communicate its own messages And that's the substantial dividing line in this case If the government was using the flagpole to send out its own messages then it would be government speech and it would be immune from First Amendment concerns Exactly When the government be it gets to decide what it wants to say what viewpoint it wants to express what message it wants to communicate which is quite different from when the government regulates privacy speakers It has to sort of obey the opposite role if you could say it can not discriminate based on what a private speaker wants to say what viewpoint they want to communicate Breyer set out a three factor test for deciding whether a message is government speech was that a test you've seen before Yeah those are factors that the court has relied on in previous cases So there have been several government beach cases before this one involving things like monuments that are placed in a public park or specialty license plates that date allows citizens to display on their automobiles or trademark in the case of federal trademark law and so what the court was doing here was sort of culling factors from those precedents and applying them to in this case Boston flag pole policy So the factors that are relevant here are the history of the expression at issue have flagged poles and flags been used historically You might say by government to speak what's the public's likely perception as to who's doing the speaking who's the statement going to be attributed to and then the extent to which the government has actively shaped or controlled the expression and I think it's fair to say reading just the priors of thinking that the last element there seemed to be the most prominent one Indeed he seemed to suggest that Boston had a good case with respect to the first two elements but since it hadn't really exercised any control as to what flags went on this third flagpole until this case until Christian flag was presented to it that was the problem What I'm curious about is this was a unanimous decision yet the district court and the appellate court sided with the city How did they both get it so wrong Yeah I think again if you look at the court's factors which is what the lower courts are looking at do the sort of history of flags used over time government typically traditionally of communicated messages and sentiments through flags There's no question about that And on a place like the Plaza which is right next to city hall and a third flagpole that flies a flag next to the United States flag and the state flag of Massachusetts one might attribute whatever goes on that third flag to the government Two of the three factors then again seem to point in the city's favor and the Supreme Court as I say seem to focus more heavily on the fact that there seem to be no selectivity or control that if you're really trying to communicate something one would expect that you'd want to have some say so in terms of which flags go on this third flag pole and in the 50 instances and hundreds of commemorative ceremonies that have occurred up to this point Boston had an exercise in that kind of editorial control Has the Supreme Court struggle to distinguish government speech from private speech in the past I think it struggles Michael is a really basic principle here that government couldn't operate if they couldn't communicate its own points of view position messages et cetera but determining what is and what isn't government speech when in fact the government is speaking as opposed to regulating private speech turns out to be a very difficult endeavor And I think that's what you see in a case like this one And in justice Alito's concurrence he tries to provide a more focused test in terms of determining when is it that the government is actually speaking has it developed a method as it sort of communicated that message consistently as a deputized private parties maybe to communicate it So there is an effort here in the concurrence to try and narrow down the issue Something other than these three sort of amorphous factors but it's just a concurrence in the majority that supplies these factors There's been each case on its own terms and its own back which naturally leads to what some might be as inconsistent results You mentioned justice Alito's concurrence and he seemed to be trying to relitigate the Texas case involving the confederate flag on license plates Tell us more about that case and why he has a problem with it Yeah I think justice Alito looking at the Texas specialty license plate program is founded incredible that the public would attribute to the state of Texas to sort of multitude of specialty license plates that the state had allowed And they ranged from sports teams outside of Texas being displayed on these license blades to let's all go play golf Just hit the multitude of messages It just seemed to him incredible on the attribution part of it at least that the public would associate any for a lot of those messages with the state And he is as you say trying to re litigate the Texas license plate case passed as an outlier in terms of the scope of government speed because if that's government speech then he can imagine lots of other things government does also being characterized that way And the danger here is that the government under the guise of discriminating against private fee in private speakers will cast itself in lots of cases as the speaker to try and avoid the First Amendment content neutrality requirement So he's pushing back very hard against not just that case but I think the doctrine of government speeds and trying to cabinet in some way narrow it to its essence In another concurrence justice Gorsuch seemed to have a problem with the lemon case I think both he and justice Kavanaugh who wrote his own concurrence are concerned that what made this a controversy in the first place was a sort of misunderstanding about the place of religious speech in the public square.

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