Talk about judges making up law out of whole cloth--that, pretty much, is what the U. S. Supreme Court has just done. In Pleasant Grove City v. Summum, the Court, by a unanimous vote, concluded that a somewhat offbeat religious group has no right to place a monument touting what it calls the Seven Aphorisms on public land that already features a monument to the Ten Commandments.
A unanimous verdict suggests that Summum was on shaky legal grounds to begin with. But the decision of Samuel Alito, endorsed by the other conservative judges, relied on reasoning that drew strong objection from some of the Court's more liberal members. It's not complicated, Alito argued. 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 act constitutes discrimination in favor of one religion and against another is tantamount to denying the government its right to say whatever it wants.
Alito's reasoning twists the meaning of words so out of shape that only a deconstructionist could admire it. Great liberals such as John Stuart Mill believed that freedom of speech was given to people because it helped them to grow, to see the world in new ways. Corporations do not grow in that sense. Nor do governments. Only individual human beings possess consciousness, morality, sociability, and other attributes that enable them to develop their faculties. Free speech is good in itself, but it also serves a purpose. We need it not just to express ourselves but to know what it is we want to express.
Governments are not human beings. They have interests not ideas. Collective rather than individual in nature, they do not think; they act. Like human beings, governments have memories and histories but they are institutional rather than idiosyncratic in nature. It may sound somewhat odd to have to remind conservatives of this--since when it comes to economics, conservatives want maximum freedom for individuals but minimal discretion for governments--but they operate bureaucratically rather than out of a sense of individual autonomy.
Governments also have a lot more power at their disposal than people. If we say that governments have freedom of speech, we concede to them the authority to suppress the speech rights of individuals. A city in Texas "thinks" that the U.S. is a Christian country. Determined to express itself, it makes its opinion clear by banning secular or non-Christian groups from publishing or saying that it is not. The city's freedom of speech is thereby protected. And the First Amendment's prohibition of a religious establishment is ripped to shreds.
There is, however, a silver lining for liberals in this decision. Because the economy is in such bad shape, made so much worse by the conservative idea that the power of government to regulate the economy should always be crippled to the maximum extent possible, the next time a law is passed upholding the government's ability to regulate pollution or to protect occupational health and safety, liberals on the court can use this decision to say that it is all a matter of the government's right to free speech. After all, if the government wants to nationalize the banks, shouldn't it have the right not only to say so but to actually do it?