By Ben Figa
The display of a permanent monument in a public park is government speech and not subject to the First Amendment. The Supreme Court reached this decision recently in Pleasant Grove City v. Summum, No. 07-665, slip op. (Feb. 25, 2009), which reversed the Tenth Circuit’s prior ruling.
Pleasant Grove City, Utah (“the City”) operated a public park with several privately donated displays, including a Ten Commandments monument. The Summum church—which believes in an alternate version of the biblical story of Moses on Mt. Sinai—asked for permission to erect in the park a stone monument engraved with the “Seven Aphorisms of Summum.” The City denied the request and explained that monuments were limited to those that either directly related to the City’s history or were donated by groups with longstanding ties to the community.
Summum argued that the City’s denial of its statute violated the Free Speech Clause of the First Amendment. Initially, the fight focused on how to classify the placement of permanent monuments in a public park. The district court analyzed the placement of monuments in a park as a nonpublic forum, but a Tenth Circuit panel held that the correct classification was a traditional public forum. Summum v. Pleasant Grove City, 483 F.3d 1044 (10th Cir. 2007). The entire Tenth Circuit reviewed the decision, but in an equally divided 6-6 vote, the court did not grant a rehearing en banc. Judge Lucero and Judge McConnell filed dissenting opinions.
In an unanimous decision, The Supreme Court reiterated that the First Amendment applies to private speech—not government speech—and thus forum analysis was inappropriate. Although there are some legal and political restraints on government speech (e.g. the Establishment Clause, the ballot box), the government is entitled to “speak for itself.” Pleasant Grove City engaged in government speech when it selected the Ten Commandments monument for display but rejected the Summum monument. The City had “‘effectively controlled’ the messages sent by the monuments through exercising ‘final approval authority’ over their selection.” It made no difference that the monuments were privately donated. According to the Court, “[j]ust as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land.”
The majority opinion gave only passing mention to the Establishment Clause because another recent case had addressed the issue. See Van Orden v. Perry, 545 U.S. 677, 690 (2005) (upholding the constitutionality of other Summum monuments because they “have an undeniable historical meaning” in addition to “religious significance”). Justice Scalia wrote a concurring opinion that emphasized, “[t]he City ought not fear that today’s decision propelled it from the Free Speech Clause frying pan into the Establishment Clause fire.” Justice Souter also addressed the Establishment Clause issue in Summum: “The interaction between the ‘government speech doctrine’ and Establishment Clause principles has not, however, begun to be worked out. The case shows that it may not be easy to work out.” The Court left unresolved the limits on government speech with religious content, and thus, it seems to be an issue for another day. "Pleasant Grove City v. Summum" posted on PrawfsBlawg.com.