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Today in the Community: October 18, 2011

Today in the Community we are discussing suits in U.S. courts against corporations and political organizations for alleged human rights abuses abroad.  On Monday, the Court granted certiorari in Kiobel v. Royal Dutch Petroleum and Mohamad v. Rajoub, in which lower courts had held that an oil company (in Kiobel) and the Palestinian Authority and the Palestine Liberation Organization (in Mohamad) could not be sued under the Alien Tort Statute and the Torture Victim Protection Act, respectively.  The courts held that both statutes allow suits only against individuals, not against corporations or political organizations.

The cases have important implications for international human rights, businesses, and foreign policy.  They also raise interesting questions of the role of international law and foreign policy in the Court’s decision making.

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Five comments we enjoyed from yesterday are below.

Eric Rassbach

Only the government can violate the Establishment Clause. That means that in deciding any Establishment Clause challenge, courts must first determine what state action, if any, is complained of. In display cases, that means that courts first have to identify where the government is speaking and where private parties are speaking. Thus in a challenge to a religious painting in a government-owned museum, the government speaks as a curator, not an author, and the painter’s religious message, however devout, cannot be attributed to the government.

As we argued in our amicus brief in support of certiorari,, the problem with the Utah crosses case is that there isn’t any government speech going on — the crosses were designed, erected, maintained, and owned by a private association, the Utah Highway Patrol Association. The only government connection is the land that the crosses stand on; one of the crosses the Tenth Circuit ordered torn down lacks even that connection, since it stands on private land. In the absence of evidence that the government manipulated the rules of the speech forum to favor (or disfavor) religion, the mere fact that a display stands on government land is not enough to create an Establishment Clause violation. Indeed, the Tenth Circuit’s holding that it did here shows just how easy it is to twist Establishment Clause precedent into a justification for hostility towards religion.

It is also worth noting that even if the Court does not take this case, there are others waiting in the wings, including the ACLU challenge to the Mt. Soledad cross near San Diego,, and the American Atheists challenge to the inclusion of the “Ground Zero Cross” in the 9/11 Memorial museum, Given these cases and others, it seems likely that the Court will soon have to grapple with the many unsolved problems of Establishment Clause jurisprudence.

Richard Garnett

As I see it, the Establishment Clause would be best understood as not having much (if anything) to say about the line between appropriate (or, at least, acceptable) and inappropriate instances of public “ceremonial deism,” holiday displays, acknowledgements of religion, etc. The concerns embodied in Justice O’Connor’s “endorsement test” are important ones — we *shouldn’t* make some members of our political community feel like outsiders, and we *shouldn’t* think that membership in our political community depends on whether or not one shares the majority’s religious tradition or views. Still, the test cannot be applied well by judges. Better to leave these matters to politics, and to citizens’ conscientious judgments about what civic friendship demands.

Brian Lusignan

In light of the Court’s decision in Summum, I have been waiting for a case considering the impact of the government speech doctrine on the interpretation of the Establishment Clause. Alito’s majority decision in Summum emphasizes that public displays such as the Ten Commandments communicate a variety of messages. On the other hand, when the government says, “I am the Lord thy God . . . Thou shalt have no other gods before me,” it appears to be endorsing Judeo-Christian religion, even if that is only part of its message.

I wonder if the Summum case, itself, might eventually present this issue to the Supreme Court. As Scalia noted in his Summum concurrence, the case was litigated “in the shadow of the First Amendment’s Establishment Clause.” On remand, the District Court of Utah allowed Summum to add an Establishment Clause to its complaint against the City of Pleasant Grove, but dismissed the complaint on the grounds that “Summum’s claim under the Establishment Clause is disposed of by Van Orden either expressly or by necessary implication, and also by the Supreme Court’s unanimous opinion in the instant case” (2010 WL 2330336). However, it is not at all clear to me that Van Orden addressed the interaction between government speech and the Establishment Clause. I do not know whether this decision has been appealed to the Tenth Circuit.

Ultimately, I do not think that the Court will determine that a city’s inclusion of a Ten Commandment’s monument in a public park with a variety of other monuments (as in Van Orden and Summum) violates the Establishment Clause, even if it is government speech (indeed, Scalia and Thomas said as much in Summum). However, I will be interested to see if the government speech doctrine forces the Court to be more intellectually honest in its approach to the Establishment Clause. Having recognized that the government speaks through its public displays, the Court must address the extent to which the government may communicate religious messages in other aspects of public life.

Tun-Jen Chiang  –

One thing that does not seem to have arisen in this discussion is the impact on trademark law. Congress (and many states) has enacted trademark law to prohibit the dilution of famous trademarks: I cannot label my company as “Harvard Pizza” even if I do no other damage to the trademark holder except the dilution itself. It seems to me extremely incongruous to say that the First Amendment protects the right of someone to falsely label themselves as a “Medal of Honor recipient” but would not protect my ability to sell pizza under the name “Harvard Pizza.”

If the Ninth Circuit is correct, then it seems to me that a great chunk of federal and state trademark law is in trouble — and that makes me think that the Ninth Circuit cannot be correct.

Matt Matson

Dave LeRoy’s first three points are: 1. The Act does not address what he considers to be an important problem, 2. The law might not be “necessary” where embarrassment and “fact checking” can deter, and 3. Other laws might cover the same wrongful conduct. I don’t see how these contentions are relevant to determining whether the Act is prohibited by the Constitution.

He also suggests there is a problem with punishing conduct where the wrongful act did not result in economic gain or loss. However, this thought is inchoate. I don’t understand why evidence of specific economic gain or harm is relevant to determining whether a specific speech act is subject to a criminal penalty. Moreover, given a military honor has some economic value to a recipient, permitting others to falsely claim they have received the honor naturally causes (a truthful claim to receiving) the honor to lose value.


Recommended Citation: Kevin Russell, Today in the Community: October 18, 2011, SCOTUSblog (Oct. 18, 2011, 9:55 AM),