International Municipal Lawyers Association - Local Government Blog

Government Speech or Public Forum? | November 12, 2008

Today the US Supreme Court will hear arguments in the case of Pleasant Grove City  v. Summum.  The issue before the court involves whether a city may accept the donation of a monument and place it in a public park without creating a “public forum” that then requires it to place monuments in the park that express differing viewpoints.  In other words, will acceptance and placement of a donated monument become government speech or does the monument retain its character as private speech?

IMLA is proud to be the only national organization representing governments to have filed an amicus brief in this case.  We hope you read it.  Our pro bono author, Mary Jean Dolan wove a masterful argument together to present what we believe is persuasive advocacy in favor of government speech.  In terms of governmental briefs, however, IMLA is not alone.  There are several. Two deserve particular attention, as they illustrate the potential damaging effect the Tenth Circuit’s decision will have on governments if adopted by the Court.  The City of New York in a wonderfully written argument presents a history of its regulation of its parks and their design that includes a discussion of how it decides when and where it will accept and place monuments.  The Solicitor General, describes the extent and breadth of the National Park system and how it would be affected should the Court adopt the erroneous reasoning of the Tenth Circuit.

Although a monument to the Ten Commandments provided the genesis for this case, the case is not about religion, its establishment or its expression; it is about whether a governmental entity that puts signs on its lampposts celebrating city events thereby creates a public forum that now requires it to use its lampposts for others’ messages.  It is about whether a city that decides to honor an important historical event or figure by accepting monuments and placing them in public places has thereby turned those public places into public forums that require it to accept other monuments and place them regardless of viewpoint.   This country accepted and placed one of its greatest icons through a private donation – the Statue of Liberty.  Must we match tributes to “liberty” with statues of tyrants?

While this case is not about religion, you would not know it by looking at the list of amici and the authors of some of the amicus briefs.  Take a look at some of the arguments.  How should the court decide this case?  From IMLA’s perspective the court ought to recognize that when the government speaks, it does not create a public forum requiring it to express other points of view.  Similarly, the simple act of accepting a monument for placement and display does not necessarily create a public forum, but constitutes government speech.  This does not mean that government speech cannot run afoul of the Constitution.  Indeed, the Constitution acts to limit government speech if it were to go so far as to advocate a religious viewpoint – but that is not a question posed in this case.  For an interesting read on the development of the religion clauses in the First Amendment take a look at Founding Faith by Steven Waldman.

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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