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Supreme Court Unanimous in Speech, Antitrust Rulings
Legal Times
February 26, 2009
The Supreme Court issued two unanimous rulings on Wednesday, solidifying recent trends in both First Amendment and antitrust law.
In Pleasant Grove City v. Summum (pdf), the Court ruled that placement of a memorial on public land is a form of government speech, not the kind of private speech in a public forum that invites First Amendment scrutiny. As a result, the Court found that a city that once allowed placement of a Ten Commandments memorial on public park land can say no to a similar monument proposed by another religious group -- in this case a memorial displaying the "Seven Aphorisms" of Summum, a small religious sect.
The antitrust decision, Pacific Bell Telephone Co. v. Linkline Communications (pdf), weakened the so-called "price squeeze" doctrine in antitrust law, continuing in a line of recent cases that have made it harder for plaintiff companies to succeed in antitrust suits against competitors.
The Summum case drew wide attention as a test of the Court's latest thinking on various First Amendment doctrines and how they affect government acceptance of religious symbols or displays on public property. In the case of the Summum monument, the Court resolved the issue by jettisoning most of the doctrines and grabbing onto a relatively new one.
In recent years, the Court has developed the "government speech" theory under which expression can escape most First Amendment scrutiny if the government is the speaker. In other words, government is allowed to choose what it says and does not say, whereas it has less leeway to show preference for one private speaker over another.
"While government speech is not restricted by the free speech clause," wrote Justice Samuel Alito Jr. for the Court, "the government does not have a free hand to regulate private speech on government property."
When Summum followers challenged the Utah city's refusal of its monument in 2005, the U.S. Court of Appeals for the 10th Circuit treated it as a kind of private speech taking place in a public forum, a combination of factors that went against the city. The appeals court ruled that the city could not refuse the Summum request without compelling justification.
But Alito said a different model was needed, because while speakers or protesters in a park come and go, "monuments, however, endure." Public parks cannot accommodate every organization that wants to place a memorial, he said.
By calling it government speech, Alito was able to skip over the knotty problems of public forum doctrine and private speech. "The ruling has a sort of housekeeping function," by helping categorize similar cases in the future, says Patricia Millett, partner at Akin, Gump, Strauss, Hauer & Feld, co-counsel for Pleasant Grove City.
But Alito and concurring justices said the decision does not solve every problem posed by religious monuments in parks. "Government speech must comport with the Establishment Clause," Alito warned, an acknowledgment that in some circumstances, a government speaker who shows preference for one religion over another might be challenged.
Ayesha Khan, legal director for Americans United for Separation of Church and State, said Alito's ruling "by no means closes the door" to Establishment Clause challenges, but she does not think it will trigger many such suits.
In the Court's 2005 Ten Commandments rulings and others, Khan said, the Court already set the parameters for when religious preferences by government are permitted or barred.
In a concurring opinion, Justice David Souter warned cities to "avoid the appearance of flat-out establishment of religion" in the wake of the decision, by allowing more than one kind of religious display in parks. "There will be safety in numbers," Souter said.
Alito, whose opinions are usually straightforward and unembellished, was more fanciful in his Summum decision, detouring into the history of public monuments and even dropping a footnote with the full lyrics of a John Lennon song to illustrate a point about the memorial to Lennon located in New York City's Central Park.
Wednesday's antitrust decision tackled the "price squeeze" theory. Under this theory, a vertically integrated company should not be able to charge high wholesale prices to competitors for parts and then charge low retail prices for the finished product, thereby squeezing competitors' profits.
The claim arose when Pacific Bell, required by the Federal Communications Commission to sell wholesale DSL service to independent firms, was accused of then selling its own DSL services to customers at a price that was too low for the independent firms to match.
But Chief Justice John Roberts Jr., writing for the Court, said such a claim is not permitted when the defendant, PacBell in this case, was not required under antitrust law to deal with the independent firms at wholesale.
Barry Pupkin, head of the antitrust practice at Squire, Sanders & Dempsey, said the ruling was "evolutionary law, not groundbreaking law." The price squeeze theory was already undercut by the Court's 2004 Trinko decision, said Pupkin, who was not involved in the PacBell case.
