Who’s Talking?

Among the decisions handed down by the Supreme Court at the conclusion of this term was a little-noted one addressing the question whether states that sell specialty license plates can refuse to issue plates with controversial images like the Confederate flag. The ruling itself is less consequential (at least, in my view) that the opportunity if affords for a much-needed lesson in Constitutional analysis.

The First Amendment prohibits government from censoring the speech of its citizens. In the case before the Court, the Sons of Confederate Veterans claimed that Texas’ refusal to issue plates bearing a Confederate flag constituted such censorship.  But the Court could not analyze that claim until it decided what lawyers call a “preliminary” question: who is speaking through that state-issued license plate–the driver or the state?

Justice Steven Breyer, writing for the court’s majority, said that Texas’ program “constitutes government speech” and that the state was “entitled to refuse to issue plates featuring SCV’s proposed design.” Just as the state could not force drivers to espouse a particular message, he said, drivers could not force a state to espouse theirs.

I think the Court got this one right. But it’s amazing how many people don’t understand the importance of determining who’s talking for First Amendment purposes.

Several years ago, plaintiffs sued Indiana’s General Assembly over legislative prayers claimed to violate the Establishment Clause. (The Courts have long allowed what we might term “de minimus” legislative prayers, so long as they are  brief and inclusive; many scholars–including this one–disagree with that admitted exception to the Establishment Clause, but it is what it is.) In Indiana, the prayers had gotten much longer and much more specifically Christian–one pastor, invited to the Speaker’s podium, had led the room in a rousing rendition of “Take a little walk with Jesus.” The District Court ruled that the practice violated the Establishment Clause and must stop, and all hell broke loose, with protestors complaining that religion had been censored.

It hadn’t.

I got several calls from local media, with breathless questions about a group of aggrieved pastors praying together at the back of the chamber–wasn’t that a violation of the Court’s order?

No, it wasn’t.

When a clergyman is invited to pray from the Speaker’s podium, as an official part of the legislative session, that prayer becomes state speech. The Establishment Clause prohibits government from endorsing or sponsoring religion. When individuals gather to pray, the Free Exercise Clause protects them against government interference.

Who is talking, who is praying, who is making the decision–makes all the difference.

The Bill of Rights only restrains government. That makes it pretty important to identify when government has acted.


  1. Thank you. As a Jew, I’ve always been uncomfortable with ceremonial deism, which is almost always far more Christian-sounding to a Jewish ear than most Christians realize (you don’t have to be saying Jesus to be working from Christian theological assumptions). You have exactly nailed why — when a person speaks to open a meeting of a state agency, they are speaking for the state, not for themselves.

  2. “The Bill of Right only restrains government.”

    Thanks Sheila for clarifying the situation. Speech containing threats by Individuals or private groups are not restrained by the Bill of Rights. There are some restraints, but not through the Bill of Rights.

    That’s why very few people are willing to speak out against the powerful oligarchy. It generates to much fear of retaliation. Clearly, in my estimation, FEAR is a major reason why the U.S. is in such a socio/political mess.

    A few examples of restraints against individuals or private groups are lawsuits for libel and/or slander. And in the more serious cases, criminal prosecution for extortion.

  3. Marv, you hit on an aspect of our current socio/political mess that I too view as the result of fear. The question should be “where does all of this fear come from?” From my perspective it comes from a constant beat originating from the Republican Party, Fox News, hate talk radio (Sean and Rush), and the pulpits of evangelical and right wing religions. Daily, hour after hour, the public is warned of government tyranny, impending attacks on Christianity, liberal conspiracies, and plans to take “our guns”. A decade of this garbage and the less intelligent among us behave just as one would imagine they would. With fear in their hearts they organize around the most strident voices, the easy and most violent answers, and a view of those who do not join them as the “enemy”.

  4. The complete rationale starting with the Constitution behind a proper legislative action is so complex and nuanced and nobody is better at tracking that down and presenting it than Sheila. We are fortunate in that regard.

    I am in similar awe when I read about what the few know about topics like cellular biology and genetics and computer simulation and epidemiology and neuroscience and networking and my favorite the European Space Agency folks who put Philae and mother ship Rosseta on a lump of ice the size of a small hill after a trip of 373 million miles.

    How can mankind be so smart?

    Then there is the other end of the human spectrum.

    Human knowledge is now so broad and deep and growing so fast that any one of us no matter how hard we struggle can decipher and contribute to only a tiny fraction of it no matter how good we are at investing our time and talent. Frustrating.

    What that boils down to is that we have become more dependant on others and learning. Strangers mostly. Esoteric foreign sounding lingo.

    Perhaps the rise of conservatism, be it in government or business or religion is the death rattle of those who thought that these days would never come when they would have to admit to and deal with their profound ignorance.

    But if that was the rise of that discomfort the fall of it can’t be far away as the fact of our individual ignorance is undeniable.

    Many of us are relegated now to be spectators of sports as people who are freakish in talent perform for us feats that we can only dream possible. The same situation now holds intellectually.

    We can’t be on most fields. We can root for the best of the best who are on each of thousands of fields denied us not by intellect but time.

    Hooray Sheila for your understanding and careful explanation of the nuances of law. You have certainly earned the credibility that I for one am happy to confer because the time for me is inadequate to ever catch up.

    So much to learn so little time. But that’s me. We are not so limited.

  5. For 8 years I’ve wondered what exactly occurred in the main conference room of a large Indianapolis public high school where I was directed to attend a parent and extended family/teacher/building administrator meeting on the eve of graduation day.

    I’d been directed to attend this rather large meeting at the request of a grade 12 English teacher to be a neutral witness to the events as they unfolded. Why the English teacher selected me remains a mystery other than perhaps I was white as opposed to all the other participants.

    Shortly after arriving for the meeting, I discovered its purpose which was to convince the grade 12 English teacher to change the student’s grade from an F to a D so that he could graduate the following day. The teacher was a solid educator, was prepared with all the documentation supporting the reason for the student’s failing grade.

    The documentation was not enough to satisfy the parents and the extended family so it was decided that there’d be a conference call with the parent’s minister. I do not remember if the principal dialed the minister’s number; however, I do remember the principal’s setting the telephone on speaker phone. After the preacher’s impassioned plea to the English teacher, he then invoked the Lord, via a long speaker phone prayer, to exert His will upon the English teacher. It was a long prayer, an emotional prayer that drew several ‘Amen’ and ‘Yes Lord’ responses from the parents and the family.

    I did not know whether to bow my head, to laugh or to quietly leave the conference room. I opted to tilt my chin slightly downward and watch the others in the room. I do remember the principal’s thanking the minister, in a personal manner, for speaking to our group, do remember that the English teacher did not change the student’s grade, and do remember that this strange meeting was never spoken about again. The English teacher was involuntarily transferred to another district high school the following year.

    Somewhere in this story, there must be a preliminary question that I’ve been unable to formulate or articulate, but this strange meeting continues to remain in my mind.

  6. Hmmmm. Well told and sort of haunting story. Why so memorable?

    The confluence of hope, Faith, culture and reality?

    Reality is tough. It’s so persistent and inhuman. It just sits there unmoved by human protestations. Sounds like your teacher friend was called to its defense.

    Hope is endearing and enduring. The main reason for Faith. Please let this be.

    Culture, the court jester. What have I learned from my tribe that works to get my way.

    Hard to root for any one over the others. But, realistically, reality is what’s favored by the rest of the Universe.

  7. @Pete, thanks for your comprehending the strange situation. Yes, I knew not to interfere with the culture of the particular group, knew never to tamper with their sincerely held faith, and fortunately was not called to speak during this strange meeting, only to serve as a neutral observer. Not only was it a meeting that blended faith, hope, and a deep cultural belief in intervention by supernatural powers that evidently had worked miraculous grade changes in earlier times, but rather, it was a head-on collision with rational decisions based upon clearly defined performance indicators as set forth by the School Board.

    The English teacher indeed was a strong young female, early 30’s, who’d received an excellent education in IU/Bloomington for both undergrad and graduate degrees in English. And, as an aside, the student attended summer school and earning a passing grade in 12th grade English and was awarded his diploma only 2 months later.

  8. BSH; that ridiculous sitution (not your confusion regarding the episode) regarding one student’s failing grade reminded me of my confusion when I learned one religion believes they can pray a sinner’s way into heaven and another religion believes you can pay a sinner’s way into heaven after their deaths. I suppose it makes sense that a different religion can believe you can pray a failing student to graduation. The teacher made the correct decision based on the student’s ability, not his religious affiliation. To me; all of this points to the fact that religion tends to obfuscate conditions/situations with personal translations from whatever religious writings they follow and those who do not understand don’t want to admit their lack of understanding so they go along to get along. Hope you can unravel that and understand what I’m trying to say.

    For some reason I was also reminded of the death penalty situation in the state of Utah; whose population is primarily Mormon. There was a movement recently which had many people up in arms (pun intended) regarding the attempt to return to the firing squad as an option. It is the Mormon belief that when you take the life of another, your only possiblity of redemption in the great beyond is by the shedding of your own blood…followed by those who try to pray your way to the afterlife. Gary Gilmore fought for this right after returning to his Mormon roots while sitting on death row; it was not the death penalty he fought but the right for his chance of redemption via the firing squad.

    If you look carefully at the various and sundry versions of “Christian” religions, you wonder how they can all be considered as part of the same belief system. It all adds to the confusion of separation of church and state while prayers begin and/or end government sessions on all levels. I believe, if the prayer issue is forced upon participants, there is nothing to prevent you from praying or chanting to yourself using your own belief system or planning your dinner menu if you are agnostic or Atheist. I don’t believe this will ever be legally sorted out by our government nor will it end the obligatatory prayers that are the source of confusion and dissension till somone of authority figures out it is the cause of much of the infighting and “across the aisle” partisan battles. Do you suppose prayer would get Boehner to cease and desist his unending attempts to repeal or defund the ACA. If so; I will drop to my knees and endure the pain in all of my arthritic joints and spine to get Congress to move on.

    There is a difference between religion and spirituality; I am of the spirituality belief which is based on acceptance of humanity as it is and as it is naturally evolving. My reading comprehension level is high enough to read the Constitution and Amendments and see that they are often open to interpretation…and easily misunderstood by those who believe it is based on Christianity…their version of course, and you will never convince them otherwise.

  9. @BSH: As a retired teacher of English, I can say that the scene you witnessed is a tried-and-true method of putting on the big squeeze to change the grade of a senior who didn’t do the work all year and now he and the parent are looking for miracles or a tiny crack in the teacher’s resolve. The teacher held firmly to her documentation and her sense of right and wrong, thank goodness. It is a story old as time. It likely happened many times this spring in all 50 states. Some teachers caved; some did not.

    The student could have done the work the first time around and saved himself and everybody else a lot of trouble and time. Much of summer school ‘work’ is pablum designed to just slide the kid on out of there in two months’ time. It seemed to have worked in that instance.

    Thank you for sharing that story.

  10. While I agree with the Court’s majority ruling in this case, I must admit I have a hard time arguing with Justice Alito’s dissent. He notes that an observer along the highway in Texas will see many different “messages,” everything from “I’d rather be golfing” to “Dr. Pepper” (seriously, Texas has an official Dr. Pepper license plate–that’s either genius or insanity). Alito asks if an observer would conclude that these messages reflect official state policy, or whether an observer would conclude that Jeff Gordon is the state’s preferred NASCAR driver.

    What this case tells me is that the government-speech First Amendment jurisprudence is rather messed up and in need of serious overhaul.

  11. I suppose the easy solution for the States would be to eliminate all these advertisements on license plates. If you want to make a statement buy a bumper sticker from the group you are hyping.

    Shelia, lays out rather well how the state can in effect sanction a certain religion. This is precisely what the Reactionary Right wants and why they feel “persecuted” when they cannot use the power of State to leverage their beliefs. Creationism, Intelligent Design, are just two of these attempts in the education world to impose Religious Beliefs via the State Education System.

  12. Re: the growth rate of human knowledge.

    From http://www.industrytap.com/knowledge-doubling-every-12-months-soon-to-be-every-12-hours/3950

    “Buckminster Fuller created the “Knowledge Doubling Curve”; he noticed that until 1900 human knowledge doubled approximately every century. By the end of World War II knowledge was doubling every 25 years. Today things are not as simple as different types of knowledge have different rates of growth. For example, nanotechnology knowledge is doubling every two years and clinical knowledge every 18 months. But on average human knowledge is doubling every 13 months. According to IBM, the build out of the “internet of things” will lead to the doubling of knowledge every 12 hours.”

  13. @Bill Wilson, I’m perfectly content as a rank and file US citizen to traverse our country on the county, state, and federal roadways where I see no specialty, no organizational, and no license plates other than standard plates including plates for those w/permanent disabilities and listing nothing more than the state, perhaps the county w/in the individual state, and the date of expiration.

    I’m not interested in or impressed by whether my fellow drivers on the roads of the US wish to support Kids, wish to support God, wish to support their Universities, wish to support the NRA, wish to support the 4-H Club, wish to support the Confederate flag, wish to support Black Expo, wish to support a particular professional sports team, or wish to support a particular industry including particular unions.

    There are enough commercially produced bumper stickers/window decals available in the US reflecting personal passions to satisfy anyone’s need to advertise personal beliefs on their automobiles. Keep the state governments out of the business of advertising anything.

  14. I perceive the current problem being the government expanding its role in society, and thus its control of speech. I note the police officer being fired for posting a picture on Facebook wearing confederate battle flag underwear, and the Principal of North Miami High School being removed for commenting on social media that he did not think the officer in the video at the swimming pool in Dallas acted appropriately. If we take scrutinize personal speech and determine if it reflects the values we want in public settings -punishing those who have any public role who express unpopular opinions – and continue to expand public settings, we won’t have much room for personal expression, other than the PC approved expression.

  15. The story of the English teacher and the student who refused to work for his grade is yet another example of why educators need tenure and principals with spine enough to back up their faculty who give fair grades.

  16. Matthew, IMO the expanding role of government in society is a natural consequence of the rapid expansion of interdependence among citizens of the whole world and population growth. Our global warming problems and the necessary role of the UN in solving them is merely another reminder that we’re all in the same room, the Earth.

    Trying to euthanize American Federal Government is probably the biggest source of today’s problems and states are not far behind.

    It’s time to move on from obscellence. Time to prepare for what’s coming rather than wish for what’s been.

  17. Pete, I remain cognizant of global issues while simultaneously knowing personally that it’s frequently easier to focus on global issues than to address the local issues where our influence is far greater and the work if far more arduous.

    I’m always reminded of the large church denominations who focus largely on global missions while ignoring the issues in their own backyards.

  18. BSH, it seems to me that problems that have more people who have a stake in the problem or its potential solutions, the more difficult will be the politics of any solution.

    I guess that’s the opposite of your thinking.

    The growth in humanity’s rate of knowledge increase and our subsequently greater connectivity makes all problems more global and less local.

    I think that our rows gets increasingly harder to hoe.

    Can we keep up with the demand for creative solutions?

    I think not at the moment but we’re stuck in a sort of dark ages.

    Temporary or permanent? I don’t know. I’m hoping for temporary but I’m an optimistic person. How about you?

  19. @JoAnn, the problem with these invocations is not that I feel compelled to pray to some other religion. I do sit quietly and translate the ideas into some other religion or contemplate my errands. It is that the speaker is making a statement on behalf of the state, and by doing so is saying something about what “we” believe and therefore that if you happen not to agree then you are not “one of us.” It is an official state act intended to unify the group, but it does so by framing those who do not subscribe to this unity as “other.”

    Just for contrast, I am also a person who enjoys singing choral music, and if you do a lot of that, you are going to notice that a lot of amazing music is Christian religious music (especially Latin masses). When I was a kid in elementary school, I politely abstained and it was fine. When I got into high school and was performing with choirs that made money by performing, I realized that I wasn’t the one who was speaking, that it was just as if I were playing a role in the theatre of someone who believed these things in order to help other people enjoy the experience or even be transported spiritually. And at times I can step back and fuzz out my eyes and experience the music myself as a vague sense of something more universal like “joy,” “dread,” or “hope.”

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