Your Facebook Friends Are Not Legal Authority

The other day I took a little dig at Roger Dean (or his lawyers, actually) for including in his lawsuit against James Cameron an assertion that his claims were “backed up by ‘numerous comments on the internet.’” Sadly, I only had to wait another day for an even sillier version of the appeal-to-the-Internet legal argument to appear, and in a much more local dispute, to boot.

Wyoming County is nestled within the southern West Virginia coal fields, having been carved from neighboring Logan County in the middle of the 19th century. Last week, a group of local religious folks built a Ten Commandments monument on the courthouse lawn, uninvited and without permission (or warning, apparently). What’s going to happen to it now is, of course, a source of controversy.

The county prosecutor, who doubles as the county attorney,* sees nothing problematic about the display. In reaching that decision, he consulted the ultimate authority:

Cochrane asked his Facebook friends for feedback and about 280 people of 300 responded in favor of the monument.

Thankfully, we’re not to the point where legal questions – much less ones of Constitutional magnitude – are resolved by Facebook plebiscite.

Cochrane’s advice to the county commission is to do nothing, right now, and let the monument stay. To his credit, he’s on record as supporting the placement of other monuments, including, perhaps, one like American Atheists recently put up in Florida to complement another Ten Commandments monument. That’s because, presumably, Cochrane has some familiarity with the concept of a public forum.

The Supreme Court has recognized that what speech a government is required to allow in a particular area is largely determined by how open to the public that area is. Traditional public forums – think sidewalks and such – are nearly wide open and are subject only to content-neutral time, place, and manner restrictions. Other areas can become public forums based on governmental action.

The Fourth Circuit dealt with a good example of the public forum issue recently. It arose in a case from Lexington, Virginia in which the Sons of Confederate Veterans wanted to put up Confederate flags on some city light poles in honor of Lee-Jackson Day (a state holiday in the Old Dominion). The city agreed, but after protests from the citizenry it instituted a new policy for such displays that limited flags hung from the city poles to those of the United States, Virginia, and the city of Lexington.

The SCV sued, arguing that the city’s decision violated their First Amendment rights. The court disagreed and upheld the dismissal of the lawsuit. The court noted that prior to the revision in city policy they light poles had been a limited public forum, open to all groups and used by, among others, the city’s two universities. However, by adopting the new policy and limiting the displays to government flags, it closed the public forum. Notably, the court shot down the SCV argument that an improper motive for closing the public forum was a First Amendment violation in and of itself.

So, the citizens of Wyoming County likely have two options – leave the Ten Commandments monument up as part of a public forum that welcomes others or take it down and close the forum to religious speech altogether to avoid running into Establishment Clause problems. For, when he says this:

Cochrane said the issue is whether the monument promotes Christianity over other religions, and he doesn't think it does. 

* * * 

‘I researched different religions as far as whether the Ten Commandments is discriminatory or not,’ Cochrane said. ‘Basically a type of Ten Commandments is cut across a lot of religions.’ 

* * * 

The monument promotes laws that are based on some of the commandments and not any religion, he said. Also many people recognize the Ten Commandments as a universal code of conduct.

Cochrane is utterly wrong. Yes, the Ten Commandments includes some broad, general, moral principles to which most people would agree (don’t kill, lie, etc.), though those are hardly unique to Judaism, Christianity, or Islam. However, several of the Ten Commandments are explicitly about the proper worship and adoration of the Abrahamic God:

• I am the Lord thy God 

• Thou shalt have no other gods before me

• Thou shalt not make unto thee any graven image 

• Thou shalt not take the name of the Lord thy God in vain

Anyone who thinks those apply to “a lot of religions” is in the same headspace as the waitress at Bob’s Country Bunker, who explained that they have “both kinds” of music there – “country and western!” Those are religious directives, explicitly at odds with not only the directives of other religions with billions of believers around the world but with those of us who have no religion at all.

It’s perfectly OK to believe them yourself, to put them up in your house or on your lawn. But if you want the allure of state backing, by putting them up next to the courthouse, you’ve got to invite others to play, too.

* In most of the smaller West Virginia counties, the prosecutor does this kind of double duty, advising the county commission on civil legal matters.