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In First Amendment ruling, Scalia kills two clauses with one stone

Today the Supreme Court ruled that a permanent monument erected in a public park is a form of governmental speech, and is therefore not subject to scrutiny under the First Amendment’s Free Speech Clause.

10commThe closely-watched case Pleasant Grove City v. Summum involved a bid by the religious group Summum to erect a monument containing the Seven Aphorisms of Summum in a Utah park where several other monuments, including one bearing the Ten Commandments, stood. When the town denied the groups’ request, the group launched a First Amendment action.

But the Court – in a decision that was unanimous, yet fractured with concurrences citing different legal justifications for the outcome – ruled in favor of the town. In an opinion authored by Justice Samuel Alito, Jr., the Court found that the process municipalities take in deciding which monuments are to be erected in public parks shows that it is government speech, and therefore not subject to Free Speech challenges.

Reading the decision, it occurred to DC Dicta that the town may have traded one battle for another: if the Ten Commandments monument is government speech, does it run afoul of the Establishment Clause of the First Amendment?

scalia1In a concurrence, Justice Antonin Scalia says emphatically: “No.”

“The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire,” Scalia wrote in the concurrence in which Justice Clarence Thomas joined. “Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.”

Scalia cited a 2005 case in which the Court rejected a similar claim brought in connection with another Ten Commandments monument deemed to be government speech.

“The city can safety exhale,” Scalia wrote. “Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary-and, yes, even its Ten Commandments monument-without fear that they are complicit in an establishment of religion.”

Today the Court also ruled in the case Pacific Bell Telephone Co. v. LinkLine Communications that a price-squeeze claim may not be brought under §2 of the Sherman Act when the defendant has no antitrust duty to deal with the plaintiff at wholesale.

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