JUST ANOTHER BRICK IN THE WALL: THE ESTABLISHMENT CLAUSE AS A HECKLER'S VETO

"When rights are incorporated against the States through the Fourteenth Amendment they should advance, not constrain, individual liberty."1I. IntroductionAlthough the First Amendment explicitly protects individuals against only laws made by "Congress,"2 the Supreme Court has long held that, under the Due Process Clause of the Fourteenth Amendment, the states are forbidden from "depriving" persons of the fundamental individual liberties protected by the First Amendment.3 Thus, under the so-called doctrine of incorporation, a particular provision of the First Amendment (as well as of the rest of the Bill of Rights) "is made applicable to the states [only] if the Justices are of the opinion that it was meant to protect a 'fundamental' aspect of liberty."4However, sometimes the Court applies the Establishment Clause of the First Amendment against the states in ways that seem to restrict rather than protect liberty. Remarkably, sometimes the Court even interprets the Establishment Clause as requiring it to act as a judicial censor issuing heckler's vetoes which grant one group of citizens the power to deprive another group of citizens an opportunity to view and enjoy a state- sponsored display or memorial in a public park or building. The purpose of this article is to search for liberty under the incorporated First Amendment, and to seek to discern when liberty is advanced and when it is restricted by Supreme Court decisions concerning passive displays and monuments erected by state governments as part of a pluralistic public culture.II. Passive Displays and Liberty: A Hypothetical CaseSuppose that a local public high school has put up a "Gay Pride-Stop Homophobia" poster in the hallway to celebrate gay pride month. When several conservative Christian students at the school are offended by the display, their parents complain to the school board, and the school board orders the principal to take the gay pride poster down immediately because its message offends the Christian students and their parents and makes them feel like unwelcome outsiders in the public school.Here is the question I ask my students when we discuss this problem in class: is the school board's decision, ordering the principal to take down the poster, one that is advancing liberty or one that is restricting liberty? What would the ACLU and other organizations advocating for the freedom of speech argue in such a case?What about the liberty of the offended students and their parents-isn't it a good thing for the school board to protect them from having to view the offensive poster? What about their liberty not to look at the poster? Doesn't the poster amount to an endorsement by the government of gay pride and a disapproval of the religious beliefs of the Christian students and their families?What about the courts? Suppose the Christian families sued in federal court seeking to enjoin the school from displaying the gay pride poster under the Free Exercise Clause, because the school's endorsement of the poster harmed the religious sensibilities of the Christian families? Should the courts enjoin the school from displaying the poster in order to protect the free exercise right of the Christian students not to have their religious beliefs offended by the school's endorsement of gay pride and disapproval of homophobia?How should the issues raised above be decided under the incorporated Free Speech Clause? Where does liberty reside in this problem?A. Freedom of Speech and Censorship of Governmental Displays: Flerdn of Pico, Barnette and CohenIn the above hypothetical, I believe that organizations supporting freedom of speech, such as, perhaps, the ACLU, would argue that the school board's decision censoring the gay pride poster violates the freedom of speech of the students who wish to be a willing audience for the display, and does not violate any First Amendment right of the Christian students and their families who could easily avert their eyes to avoid seeing the display that offends them. …