A Government’s Right to Free Speech?

Conservatives are fond of invoking the Constitution and the “founding fathers” in order to end all discussion when a proposed change to existing law would evolve in a direction that they don’t like. This is not always wrong, but often seems quite cherry-picked. For example, when the Supreme Court granted corporations full rights as citizens in Santa Clara County v. Southern Pacific Railroad (Wikipedia), there was no hue and cry about activist judges. That single decision has arguably had a tremendous amount of influence over the shape of the U.S. in 2009. It paved the way to a society dominated by these super-citizens, which can exercise their rights to a degree far beyond that of mortal, flesh-and-blood citizens.

Over 120 years later and we again hear nary a peep as the Supreme Court has arrogated power in the form of similar rights to the government. As documented in more detail in the article, Government Talk Pretty One Day by Alan Wolfe (The New Republic), the pack of conservative judges on the Supreme Court have nary a scruple between them and feel perfectly comfortable legislating from the bench. Here’s a summary of Justice Alito’s argument:

“The government, like any individual–or, for that matter, corporation–has the right to free speech. If it chooses to say that one religion’s teachings should be represented in public and another’s should not be, telling it that such a[n] act constitutes discrimination in favor of one religion and against another is tantamount to denying the government its right to say whatever it wants.”

This is a truly shocking and altogether mad conclusion. One would like to say that it will not stand, but it came from the Supreme Court, which means venues in which it can be struck down are quite limited. If you’re not appalled, read the citation above again; the Court has, in effect, said that the government has a right to free speech, so that whatever it wants to say or do is legal. If it wants to prohibit public use of land by liberals, but allow it for conservatives, then it can. And vice versa.

Until this decision, it was not acknowledged that the government had an opinion, much less the right to express it—especially when it conflicted with the rights of citizens. The decision revolved around whether or not a minor religion was allowed to post its credos on public property simply because the Christians had already hung their ten commandments there. The answer, so far, is “no, the government has decided that the U.S. is a Christian nation.” The Court did not go into detail as to the identity of the government’s messenger.