766
Opinion of Scalia, J.
ion of O'Connor, J.).2 Petitioners assert, in effect, that that distinction disappears when the private speech is conducted too close to the symbols of government. But that, of course, must be merely a subpart of a more general principle: that the distinction disappears whenever private speech can be mistaken for government speech. That proposition cannot be accepted, at least where, as here, the government has not fostered or encouraged the mistake.
Of course, giving sectarian religious speech preferential access to a forum close to the seat of government (or anywhere else for that matter) would violate the Establishment Clause (as well as the Free Speech Clause, since it would involve content discrimination). And one can conceive of a case in which a governmental entity manipulates its administration of a public forum close to the seat of government (or within a government building) in such a manner that only certain religious groups take advantage of it, creating an impression of endorsement that is in fact accurate. But those situations, which involve governmental favoritism, do not exist here. Capitol Square is a genuinely public forum, is known to be a public forum, and has been widely used as a public forum for many, many years. Private religious speech cannot be subject to veto by those who see favoritism where there is none.
The contrary view, most strongly espoused by Justice Stevens, post, at 806-807, but endorsed by Justice Souter and Justice O'Connor as well, exiles private religious speech to a realm of less-protected expression heretofore
2 This statement in Justice O'Connor's Mergens opinion is followed by the observation: "We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis." 496 U. S., at 250. Justice O'Connor today says this observation means that, even when we recognize private speech to be at issue, we must apply the endorsement test. Post, at 774-775. But that would cause the second sentence to contradict the first, saying in effect that the "difference between government speech . . . and private speech" is not "crucial."
Page: Index Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: October 4, 2007