Religious freedom and nonpublic fora

Marie A. Failinger mfailing at PIPER.HAMLINE.EDU
Fri Dec 19 10:01:27 PST 1997

I don't disagree with a distinction between regulatory and managerial
roles of government (and we could add a few more, like mediating,
supporting, etc.)  What I do have a problem with is anthropomorphizing
government once we have acknowledged that it plays different roles,
assuming all of the attributes of a private manager (like property rights)
to the government.  Or to put it another way, once we have made the
analogy between government and an individual with respect to what they are
doing, we assume that they are analogically similar in all respects, when
it is more appropriate to understand their relationship
metaphorically--that they are
both similar and different, and the differences are equally as important
as the similarities.

In Sandy's example, the personification of government would lead
to the government's ability (or rather, we should say, the government
bureaucrat's ability) to specify every detail of the Reagan statute
because, like a private person in a market economy, it doesn't have to pay
for anything it doesn't like.  Similarly, the government could ban and
even criminalize  ANY
activity near the Reagan statute, not simply another statute but, say,
putting a riding crop into the statute's hands for a day, if the
government is simply another "person" with "property rights."

On the other hand, less absolute regimes, like incompatibility and TPM to
take two examples (if taken seriously by bureaucrats) would at least force
government to ask
COLLECTIVELY what they are trying to achieve with this statute, whether it
is a public good, and what other compatible uses of government "property"
might also be made, in advance of a speech or free exercise tussle.
If they have already considered that a temporary (1 day, 1 hour) display
will not detract from the aesthetic of the piece but that a permanent
statute will, it will not seem so much like viewpoint censorship when the
first person tries to put up his Reagan Tramples Downtrodden statute.

So often in these cases--the uncertainty over the abortion clinic
picketing cases is a good
example--judges assume that the choice is between no speech at all, or
virtually unlimited (in terms of duration, noise, size, etc.)
speech.  If the courts and bureaucrats can act more moderately, then a
second "statue" can easily be distinguished from a permanent second
statue.  And if it should turn out that SO MANY PEOPLE are willing to turn
out to put up their temporary "statues" of Reagan Tramples Downtrodden
that speech is going on at the statute every hour, day, week and ruining
the aesthetics of the Reagan Be Praised statute, then I think it says
something about whether government has made a good public decision to put
the statute up.  Or, if the bureaucrats are truly wise, they will realize
that the "living monument" that has been created by this protest is a more
true representation of history and human complexity than the message they
tried to send, and welcome "unaesthetic" protesters.  Ditto with the
Vietnam Vets who sold stuff near the Vietnam Memorial--not pristine, but a
powerful piece of the story we should want to tell, and too bad (I hear)
that they were shooed away.

On Thu, 18 Dec 1997, Sanford Levinson wrote:

> 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

Marie A. Failinger
Hamline University School of Law
mfailing at

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