Gregory P. Magarian's "Managed Speech"

Gregory P. Magarian is Professor of Law at Washington University in St. Louis. He teaches and writes about U.S. constitutional law, with a focus on the First Amendment freedom of expression. His work also explores law and religion, gun regulation, and the law of politics. He has published widely in leading law journals, and he has taught and lectured around the world. Professor Magarian received his B.A. summa cum laude from Yale and his J.D. magna cum laude, as well as a master's degree in public policy, from the University of Michigan. He served as a judicial clerk, first for Judge Louis Oberdorfer of the U.S. District Court for the District of Columbia, then for Justice John Paul Stevens of the U.S. Supreme Court.

Magarian applied the “Page 99 Test” to his new book, Managed Speech: The Roberts Court's First Amendment, and reported the following:

I’m a constitutional law professor, specializing in the First Amendment. My book talks about what the U.S. Supreme Court, during the decade John Roberts has been Chief Justice, has done with, or to, First Amendment free speech law. The book argues that the Roberts Court has used the First Amendment to protect respectable, nonthreatening speech, but the Court has let the government restrict strong dissent. I think the Roberts Court cares about free speech, within safe boundaries, but cares more deeply about preserving social and stability. Respectable speech sustains stability, while strong dissent threatens stability.

Page 99 falls in the middle of my account of a 2009 Supreme Court case called Summum. In that case, a small religious sect called Summum donated a monument inscribed with the sect’s “seven aphorisms” to a small city in Utah, for placement in a city park. (The park already had, among other things, a stone monument inscribed with the Ten Commandments.) The city refused to place the monument in the park. Summum, relying on an age-old chunk of First Amendment law called the public forum doctrine, claimed the city had violated the sect’s First Amendment rights. The public forum doctrine basically says that the government can’t pick and choose which speakers do and don’t get to speak on government property that’s open for public use, like parks.

The Supreme Court rejected Summum’s First Amendment claim and sided with the city. The Justices held that Summum wasn’t a public forum case at all. When the city accepts a donated monument, said the Court, the monument becomes the government’s own speech. The government doesn’t have to say anything it doesn’t want to say. The city therefore didn’t have to place the Summum monument in the park.

I think the Court in Summum reached the right result for an importantly wrong reason. The result is right because parks don’t have infinite space. People and groups can’t just plop down whatever giant slabs of granite they want to in whatever park they feel like. On the other hand, as page 99 stresses, the core of the public forum doctrine is that people – especially people without much money – need spaces where we can speak freely. The Court in Summum could have told the government to allocate finite space in parks through some kind of fair, inclusive process. By instead letting the government fill up parks’ expressive spaces with the government’s own giant slabs of granite, the Court diminished an important way for people to reach audiences.

Summum may not sound like an Earth-shaking case, but remember: Supreme Court decisions matter for the big principles they establish, and for how each individual case ties into broader ideas in the law. The public forum doctrine is far from perfect, but it’s one of the only pieces of First Amendment law that goes beyond protecting speakers of means against government regulation and actually tries to give people resources to help them speak out. The Roberts Court doesn’t appear to like that kind of positive constitutional commitment to free speech. In Summum and other cases, this Court has refused to let the First Amendment help social and political outliers like Summum, speakers who seek to challenge fundamental ideas in our social order. Summum hits dissenting speech especially hard, because it literally converts private speech into government speech and lets government substitute its own ideas for what dissenters want to say. Letting the government elbow dissenters toward the margins in public parks is a big example of how the Roberts Court cares more about social and political stability than about a broad-based principle of free speech.

Learn more about Managed Speech at the Oxford University Press website.

--Marshal Zeringue