City’s Rejecting Of Some Permanent Monuments In A City Park, While Accepting Others, Is Not A Violation Of Free Speech

In Pleasant Grove City, Utah v. Summum, (— S.Ct.—, U.S., Feb. 25, 2009), the United States Supreme Court granted certiorari to determine whether the Free Speech Clause of the First Amendment entitled a private group to insist that a city permit it to place a permanent monument in a city park in which other donated monuments, including a monument of the Ten Commandments, were previously erected.

The court ruled that while a park is normally a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. As such, the city was not required to allow the private group to place a permanent monument in the park.

Facts

Pioneer Park (“Park”) is a public park in Pleasant Grove, Utah (“City”), owned and operated by the City. Within the park are 15 permanent monuments, including 11 donated by private groups or individuals.

Summum is a religious organization based in Utah. In 2003, Summum requested that the City accept from Summum and place in the park a stone monument expressing the principles of Summum, similar to a nearby monument in the park displaying the Ten Commandments. The City declined the offer, citing a policy of only accepting monuments that either directly relate to the City’s history, or are donated by groups with longstanding ties to the City. Summum did not show how its monument met either requirement.

Summum filed suit, alleging that by rejecting its monument while accepting others, the City had violated its Free Speech rights. The district court denied Summum’s request, and Summum appealed. The Court of Appeals reversed the district court’s decision, held that a public park is a traditional public forum and ordered the City to accept the monument in the park. The City appealed to the Supreme Court.

Decision

The question, the court said, was whether the monuments in the park represented the City’s own expressions, or were rather a forum for private speech. The free speech clause restricts government regulation of private speech; it does not regulate government speech, the court said, citing Johanns v. Livestock Marketing Association., 544 U.S. 550 (2005). If, therefore, the monuments were government speech, the First Amendment would have no application to them.

In this case, the court said, it is clear that the monuments in the park were government speech. “The City has selected those monuments that it wants to display for the purpose of presenting the image of the City that it wishes to project to all who frequent the park,” the court said.

The court rejected Summum’s claim that rejecting one monument while accepting others was akin to allowing one person to speak at a public forum but disallowing others because of their points of view. To the contrary, the court said, speakers and permanent monuments are fundamentally different. Speakers eventually finish speaking and go home, while monuments permanently monopolize the use of the land on which they stand. Public forum principles are out of place in the context of permanent monuments.

“The obvious truth of the matter is 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,” the court concluded. “And where the application of forum analysis would lead almost inexorably to the closing of the forum, it is obvious that forum analysis is out of place.”

As the City’s selection of some monuments and rejection of others for its parks constitute government, rather than private, speech, the First Amendment does not apply, the court concluded. The Court of Appeals holding that the City must accept Summum’s monument was reversed.

Questions

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Mona Ebrahimi | 916.321.4500