Religious freedom and nonpublic fora

[Sanford Levinson]

Apropos of the exchange between Eugene and Marie, it seems to me helpful to
refer to Robert Post's distinction, in his Yale piece "Subsidized Speech"
(and other of his writings), between the government acting in its role as
regulator and in its role as efficient manager of public resources.  The
difficulty, of course, is knowing precisely how to draw this line, but it is
clear that we do so, pragmatically, all the time.  Even if one believes, for
example, that the NEA must give grants to subversive artists, I gather that
no one can cogently believe that the government, when seeking bids for a
statue of, say, Ronald Reagan for placement before the new Reagan building
in Washington (or at National Airport if it's renamed after him), cannot
specify that the statue should be an "inspiring" representation of the
former President and that I could properly be rejected from the competition
for suggesting that he be portrayed with his foot on the neck of a homeless
child.  And, I assume as well, that no one has a "right" to put up my statue
next to the "official" Reagan statue on the ground that the feds have
implicitly made the space a "public forum" by putting up a content-laded
statue in the first place.  Or would Marie grant me such a right?

(To tie this closer to the list, could the specs for a "public" statue of
Martin Luther King or Cardinal Bernadin specify that he not be portrayed in
a traditional posture of prayer or delivering communion?  And if the specs
failed to include this, could the selection committee reject a proposal on
the grounds that it was "too sectarian"?)

Sandy Levinson