A unanimous Supreme Court released its decision in Pleasant Grove City, Utah v. Summum, No. 07-665, yesterday. Justice Alito wrote the opinion, with five justices filing concurring opinions – Justice Stevens (joined by Justice Ginsburg), Justice Scalia (joined by Justice Thomas), Justice Breyer, and Justice Souter. The question before the Court was whether the Free Speech Clause of the First Amendment entitled a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments, including a Ten Commandments monument, were previously erected and currently displayed. In brief, the Court held that the placement of a permanent monument in a public park was a form of government speech and was, therefore, not subject to scrutiny under the Free Speech Clause. Although parks were a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park was not a form of expression to which forum analysis applied.
The facts in the case were as follows. Pioneer Park in Pleasant Grove City contained a number of buildings, artifacts, and permanent displays, including the first City Hall and fire department buildings, a 9/11 memorial, and a Ten Commandments monument from the Fraternal Order of Eagles, donated in 1971. The City’s criteria for permanent displays in the park required that monuments be directly related to the City’s history, or be donated by a group with “long-standing ties to the . . . community.” Summum, a religious group, applied to have a monument of its Seven Aphorisms displayed, and advised that its proposed monument would be similar to the Ten Commandments monument already in the park. (The Summum religion includes the belief that, when Moses received stone tablets from God on Mount Sinai, he received two separate sets of tablets – the first was inscribed with the Seven Aphorisms; the second, later, tablet contained the Ten Commandments. Moses revealed the first tablet to only the few that were sufficiently spiritually mature, and received the Ten Commandments (something of a poor second) after he destroy the Aphorisms tablet.) After the City denied Summum’s request, citing its policy, Summum sued, alleging a violation of its free speech rights. (Summum argued, but abandoned, its Establishment Clause argument before the matter reached the appellate courts.)
The Tenth Circuit held that the park monuments constituted private, not government, speech, in a traditional public forum. Pleasant Grove City’s content-based choices and policy failed strict scrutiny review, and the City was ordered to accept the monument. A divided Tenth Circuit subsequently denied the City’s petition for a rehearing and rehearing en banc. The judges who dissented on the denial of rehearing (who would be referred to in the Supreme Court decision), pointed out that parks, as traditional public forums, had to be open to speeches, demonstrations, and other forms of transitory expression. The City, in this case, had not, “by word or deed, invite[d] private citizens to erect monuments of their own choosing in these parks. It follows that any messages conveyed by the monuments they have chosen to display are ‘government speech,’ and there is no ‘public forum’ for uninhibited private expression.”
Following the grant of certiorari, IMLA filed an amicus brief in support of the City, authored by Professor Mary Jean Dolan of the John Marshall Law School. The brief included a survey of existing monuments and placement policies in U.S. municipalities. In its opinion, the Supreme Court several times cited the IMLA brief.
Beginning its analysis, the U.S. Supreme Court noted that there were no prior decisions on the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments. First, the government had a right of expression, the “right to speak for itself.” While the Free Speech Clause restricted the government’s regulation of private speech, including speech in traditional public forums, it did not apply to the government’s own speech. Permanent monuments accepted by governments and placed on public property, despite the fact of being donated by private entities, “typically represent government speech.” Such displays were a traditional form of a government’s expression, and “throughout our Nation’s history, the general government practice with respect to donated monuments [was] one of selective receptivity,” demonstrated by way of design input, prior submission requirements, requests for modifications, and legislative approval for specific content. Pleasant Grove City, like other governments, took into account content-based factors like local history and culture. Thus, in making the decision to accept a permanent monument, the municipality was choosing its message.
The Court rejected Summum’s argument that something more definite or formal (e.g., passing a resolution) was needed before a government could be said to adopt a monument as its own expressive vehicle. “We see no reason for imposing a requirement of this sort,” adding that the City in this case took ownership of most of the monuments in the park. To require more would be a “pointless exercise that the Constitution does not mandate.” This would be unworkable for other reasons: a monument, even a text-based one, could easily convey more than one message. As demonstrated by the Statue of Liberty, the message intended by monument’s creator or donor could be different than that expressed by the government accepting the monument, and could change over time.
Public form analysis was “out of place” in addressing such displays. The installation of permanent monuments was not analogous to other forms of speech on government public property. Unlike demonstrating or leafleting, parks could only accommodate a finite number of permanent displays. The application of content-neutral time, place and manner restrictions was not feasible because the “obvious truth of the matter [was] that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations.”
Justice Scalia and Justice Souter, in their concurring opinions, touched briefly on the “shadow” in this case, the Establishment Clause. Justice Scalia, referring to the Court’s earlier ruling in Van Orden v. Perry, 545 U. S. 677 (2005) (Ten Commandments monuments had an “undeniable historical meaning”) added that the city here need “not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.” Justice Souter, taking a broader look, indicated that if a monument had “some religious character, the specter of violating the Establishment Clause” would require the city “to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized.” However, it was “simply unclear how the relatively new category of government speech [would] relate to the more traditional categories of Establishment Clause analysis, and this case [was] not an occasion to speculate.”
Justices Stevens and Breyer also echoed the need for municipalities to be careful. Justice Stevens indicated the decision was not a “free license” for a government to “communicate offensive or partisan messages”; Justice Breyer likewise indicated that the “government speech” doctrine would not permit a city to “discriminate in the selection of permanent monuments on grounds unrelated to the display’s theme, say solely on political grounds.”
A copy of the opinion is available online at http://www.supremecourtus.gov/opinions/08pdf/07-665.pdf
IMLA thanks all of the participants in the survey done as part of our brief, and thanks Professor Dolan for her excellent brief.
Professor Dolan will be speaking at the upcoming IMLA Mid-Year Seminar about this case.