Richard F. Duncan (University of Nebraska at Lincoln - College of Law) has posted Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto (Texas Review of Law & Politics, Forthcoming) on SSRN. Here is the abstract:
Although the First Amendment explicitly protects individuals only against laws made by “Congress,” 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. 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.’”
Sadly, however, in the landmark decision of Everson v. Board of Education, rather than incorporating a fundamental individual liberty under the Establishment Clause, Justice Black and the Supreme Court instead incorporated an extra-constitutional metaphor with a very tainted historical pedigree. Sometimes the Court even applies the metaphorical “Wall of Separation Between Church and State” in ways that actually restrict, rather than protect, liberty.
Remarkably, in one class of cases the Court has gone so far as to interpret the Establishment Clause as requiring it to act as a judicial censor issuing heckler’s vetoes, judicial decrees which grant one group of citizens the power to deprive another group of citizens of 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 Establishment Clause 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 government as part of a pluralistic public culture.