Oral argument: Wednesday, Nov. 12, 2008
Appealed from: United States Court of Appeals, Tenth Circuit (Aug. 24, 2007)
SUMMUM, SEVEN APHORISMS, FRATERNAL ORDER OF EAGLES, TEN COMMANDMENTS, FIRST AMENDMENT, FREE SPEECH, GOVERNMENT SPEECH, PRIVATE SPEECH, EXPRESSION, FUNDAMENTAL RIGHTS, PRELIMINARY INJUNCTION, STRICT SCRUTINY
Summum, a religious organization, seeks to place a monument containing the Seven Aphorisms of Summum among other historical and cultural artifacts and monuments displayed in Pioneer Park. It brought a civil suit in the Federal District Court of Utah, alleging that the city of Pleasant Grove had abridged its First Amendment freedom of speech rights in denying the request to display the Seven Aphorisms monument, while approving other similar expressive monuments. The District Court denied Summum’s preliminary injunction motion, but the Tenth Circuit reversed the ruling and granted the injunction, finding that any privately-donated monument retained its character as private speech. The court held that since a park is a traditional public forum, the city cannot engage in content-based restrictions of private speech without a compelling state interest and a narrowly-tailored policy to that end. The city contends that there is no First Amendment violation because the display constitutes government speech—the city owns, controls, and ultimately decides to display the monument. It fears that the Tenth Circuit ruling would chill free speech for both private parties and the government, for the ruling would require the city to display any monument at the request of a private party or, alternatively, ban all displays in public parks. But Summum argues that categorizing such displays as government speech, where the decision to display a monument is subject to the city’s selection process, would allow the city to engage in viewpoint discrimination.
1. Did the Tenth Circuit err by holding, in conflict with the Second, Third, Seventh, Eighth, and D.C. Circuits, that a monument donated to a municipality and thereafter owned, controlled, and displayed by the municipality is not government speech but rather remains the private speech of the monument’s donor?
2. Did the Tenth Circuit err by ruling, in conflict with the Second, Sixth, and Seventh Circuits, that a municipal park is a public forum under the First Amendment for the erection and permanent display of monuments proposed by private parties?
3. Did the Tenth Circuit err by ruling that the city must immediately erect and display Summum’s “Seven Aphorisms” monument in the city’s park?
1. Whether a permanent monument donated by a private organization to Pleasant Grove retains its character as private speech, or whether it becomes government speech because the city owns, controls, and decides to display it?
2. Did the Tenth Circuit err in finding that the monument’s physical presence in a park is dispositive in ruling that the relevant forum is a public forum, or should the court have ruled that access to the forum based on the city’s selection process renders it a nonpublic forum?
3. Would requiring the city to immediately erect and display Summum’s monument ultimately require the city to decide either to display monuments at the request of any private party or not to display any monuments at all?
Pioneer Park, located in Pleasant Grove, Utah, contains a number of historical artifacts, buildings, and permanent displays, such as the city’s first city hall, its first fire department, a Ten Commandments monument, and a September 11 monument. See Summum v. Pleasant Grove, 483 F.3d 1044, 1047 (10th Cir. 2007); Brief for Petitioners, Pleasant Grove et al. at 3–4. Many of these monuments were donated by private parties. See Brief for Petitioners at 4.
Summum, a religious organization based in Utah, sought to donate a monument containing the Seven Aphorisms of Summum. See Summum, 483 F.3d at 1047. In September 2003, Summum requested permission to erect a monument, “similar in size and nature to the Ten Commandments monument,” in the park. Id. The mayor rejected the request because the monument did not meet the city’s criteria, which required “all permanent displays . . . [to be] ‘directly relate[d] to the history of Pleasant Grove” or be “‘donated by groups with longstanding ties to the Pleasant Grove community.’” Id. The city subsequently codified this policy in August 2004. See id. In May 2005, Summum sent another letter requesting permission to build the monument, but the city never responded. See id.
In July 2005, Summum brought a Section 1983 civil lawsuit against the city and several of its officials in the Federal District Court of Utah. See 42 U.S.C. § 1983; Brief for Petitioners at 3, 7. Asserting a violation of its First Amendment free speech rights and similar rights under Utah’s Constitution, Summum sought declaratory relief, injunctive relief to immediately build its monument, and monetary damages. See U.S. CONST. amend. I.; Summum, 483 F.3d at 1047. Summum argued that the city impermissibly engaged in a content-based restriction, since it had granted approval for other monuments of a similar expressive nature in the past, most notably the Ten Commandments monument. See Summum, 483 F.3d at 1047. The District Court denied injunctive relief because Summum did not “establish[ ] a substantial likelihood of success on the merits.” Id. at 1049. On appeal, the Tenth Circuit reversed the District Court’s ruling because the lower court had incorrectly applied a standard of review applicable to nonpublic fora. See id. at 1049–50. It held that the District Court should have applied the standard of review for a public forum, since a city park is a “traditional public forum . . . [for people to] exchange ideas and engage in public debate . . . .” Id. at 1050.
Rather than remanding the case, the Tenth Circuit analyzed whether a preliminary injunction should be granted. See Summum, 483 F.3d at 1049. The court followed its precedent and held that the case concerned private speech rather than government speech. See id. at 1048 n.2; Brief for Petitioners at 12. In granting a preliminary injunction, the court found that (1) the city’s “historical relevance criteria” was not a sufficiently compelling state interest, and was not narrowly drawn to justify restrictions on private speech; (2) Summum’s deprivation of speech rights is presumptive irreparable harm; (3) Summum’s deprivation of speech rights far outweighs any potential harm to the city due to the preliminary injunction; and (4) a preliminary injunction granting speech rights is “not averse to the public interest.” Summum, 483 F.3d at 1050–52, 1055–56. The Tenth Circuit denied the city’s en banc petition for rehearing in a 6-6 split decision. See Summum v. Pleasant Grove, 499 F.3d 1170 (10th Cir. 2007). However,the Supreme Court granted the city’s petition for a writ of certiorari. See Pleasant Grove v. Summum, No. 07-665 (U.S. 2007).
This case offers the Supreme Court an opportunity to clarify the government speech doctrine. A precise doctrine is required, for the potential for abuse always lurks. The Rutherford Institute argues that by asserting that a certain display or message is government speech, the government may engage in viewpoint discrimination in public places by advancing certain viewpoints over those less-favored. See Brief of Amicus Curiae Rutherford Institute in Support of Respondent at 14–15. The government speech doctrine prevents individuals from challenging government speech under the First Amendment, because generally, the political process holds the government accountable for its actions and speech. See id. at 23–24. However, here, the government speech doctrine would enable the government to engage in viewpoint discrimination, and “escap[e] scrutiny under the First Amendment.” Id. at 15. It would insulate the government from public accountability by allowing it to covertly advance its message through a private speaker. See id. at 23–25. Such a practice runs counter to the purposes of a public forum, because it undermines the ability of society to use it to freely exchange ideas. See id. at 15.
The Tenth Circuit ruling could, however, create administrative problems for municipalities, which could ultimately limit First Amendment freedom of expression. As mentioned, the ruling effectively disallows viewpoint discrimination for public displays of privately-donated monuments. See Brief of Amicus Curiae United States in Support of Petitioners at 19. The Foundation for Free Expression argues that if the government “is forced to either ban all permanent monuments . . . or accept every proposed donation, the result will either be a chilling of expression or an array of clutter.” See Brief of Amicus Curiae Foundation for Free Expression in Support of Petitioners at 2. For example, a monument valorizing a war hero may theoretically be met with another monument lampooning or disparaging that war hero. See Brief for United States at 19–20. Amongst this clutter, the underlying messages of these viewpoints would be lost. See Brief of Foundation for Free Expression at 2. Alternatively, if the government chooses to refuse access to the forum altogether, it could create a chilling of expression that limits the free exchange of ideas and public discussion. See id. at 30–31. The government could also consider each monument on a case-by-case basis, risking time-consuming and costly litigation. See Brief of United States at 20. But the risk of endless litigation may have a deterrent effect on the display of monuments. See id. There is evidence that this deterrent effect has already materialized. For instance, the United States Army has delayed deciding whether to accept monuments honoring service members killed in a 1943 crash of a B-17 Flying Fortress until after the resolution of this case. See id. at 21.
Amici States contend that the Tenth Circuit ruling will undermine government speech: “although the government may still pursue other modes of communication, closing one mode of communication makes government expression more difficult.” Brief of Amicus Curiae Virginia et al. in Support of Petitioners at 7. They argue that if the Court holds that a government’s use of privately donated property to convey a government message constitutes private speech, it will restrict and undermine government speech. See id. at 6–7. Most obviously, the decision would limit the ability of government to use a park as a forum for its speech. See id. at 7–8. This would have a significant effect because, for example, “[t]he federal government alone currently displays an unknown number, but certainly well over a thousand, privately donated statues and other memorials on federal parklands.” Brief of United States at 28.
Summum counters that the Tenth Circuit ruling would not result in the drastic outcomes described above. It distinguishes government speech monuments from the Pioneer Park displays. For most government speech monuments, the government officially adopted the message as its own through a formal resolution or had a role in either commissioning or designing the monument. See Brief for Respondent, Summum at 54–56. Therefore, the government can ban monuments such as Seven Aphorisms of Summum from Pioneer Park by simply passing a resolution acknowledging the monument as government speech, which would consequently serve as an affirmative defense to these types of First Amendment lawsuits. See id. at 57. Summum concludes that the Tenth’s Circuit’s decision will not chill a government’s speech, it will simply require the government to “control and tak[e] responsibility for the message conveyed…subjecting itself to full political accountability.” See id. at 58.
Is a Monument Donated to a Municipality Considered Government Speech or Private Speech of the Donor?
Both Pleasant Grove and Summum agree that the First Amendment grants private citizens the right to free speech, and both parties acknowledge that these First Amendment constraints do not apply when the government speaks on its own behalf. See Brief for Petitioners at 20–21; Brief for Respondent at 31. The accord between the parties ends there; they both disagree over how to distinguish government speech from private speech, and whether the speech in question falls under the protection of the First Amendment.
Pleasant Grove contends that the monument erected in Pioneer Park displaying the Ten Commandments is government speech, and therefore falls outside the reach of the First Amendment. See Brief for Petitioners at 20. When the government chooses to convey a message, it can ensure the clarity of the message by excluding private third parties from changing it. See id. Pleasant Grove argues that the monument is government speech, and likens it to a plethora of well-known forms of government speech, from notable monuments to popular slogans. See id. at 22–23. Pleasant Grove also asserts that the First Amendment does not operate as an ultimatum that forces a government to choose between voicing its message and staying silent; instead it allows room for a government to pick and choose its messages. See id. at 23.
Pleasant Grove stresses that even though a private party donated the Ten Commandments monument, its display is government speech. See Brief for Petitioners at 26–28. A display on public lands is government speech, and it is ultimately up to a government to decide how to best express its message by selecting and editing those displays, including displays that originally come from private sources. See id. at 25–29. Pleasant Grove asserts that it is one of many governments throughout history to display privately commissioned government speech through a memorial or monument on public land. See id. at 24–26. It claims that while “some of these objects bear messages originally inscribed by private parties,” they are still government owned and controlled, and therefore “represent government speech.” Id. at 29. Here, Pleasant Grove owns the monument, showing it controls the message and can exert editorial discretion in its display. See id. at 28–29. Pleasant Grove asserts that the inclusion of the Ten Commandments monument and the exclusion of the Seven Aphorisms monument was not discrimination; it was nothing more than the local government exercising its right to create a historical memorial within Pioneer Park. See id. at 31.
Summum counters that the Ten Commandments monument is not government speech at all, but private speech that therefore triggers the application of the First Amendment. See Brief for Respondent at 30. While Summum does agree that government speech exists in many of the forms cited by Pleasant Grove—such as the Vietnam Veterans Memorial and the popular slogan “Only You Can Prevent Forest Fires”—it claims the Ten Commandments monument does not fit the parameters of government speech because Pleasant Grove did not formulate, control, or adopt the message as its own. See id. at 31–32. Summum points out that the Fraternal Order of the Eagles donated the monument to Park Grove City as a completed work, without any input from the city as to its creation or content. See id. at 33–35. Summum feels this makes the case at bar unlike other government speech cases, where the government worked cooperatively with private parties and community organizations to assist in the creation, commission, and implementation of the city’s preferred message. See Brief of Amicus Curiae International Municipal Lawyers Association in Support of Petitioners at 6–7.
Summum also asserts that Pleasant Grove could have shown control over the speech after the erection of the monument by officially adopting the content of the monument, or by displaying a sign that communicated that the speech on the monument was coming from the city—but instead, the city chose to do nothing. See Brief for Respondent at 33–36. Summum dismisses the claim that Pleasant Grove’s asserted editorial discretion is evidence of control over the content of the message: it argues that “[t]he very essence of the First Amendment is that the government may not ‘edit’ private speech for content in a traditional public forum,” and doing so amounts to nothing more than discrimination. Id. at 14. Summum says that any extension of this idea shows Pleasant Grove’s reasoning is flawed, because if its reasoning is correct, it would allow a government to selectively include or exclude favored private speech in all public forums simply by labeling it government speech. See id. at 37.
Is a Municipal Park Considered a Public Forum Under the First Amendment?
According to Summum, the First Amendment prohibits the government from discriminating against speech in a public forum based on its content or on its speaker. See Brief for Respondent at 11. Summum feels it is particularly egregious to discriminate against its viewpoint in a public park, the epitome of a public forum. See id. at 16–17. Even though courts struggle with the expanding scope of what a public forum is, public streets and public parks have always been included in this definition. See id. The First Amendment severely limits the government’s ability to regulate speech within traditional public forums, particularly when the regulation is sparked by the substantive content of the speech. See id. For such a restriction to be permissible, Summum says the government needs to demonstrate a compelling reason for restricting speech, and show that its actions were specifically tailored to serve that compelling need. See id. Even when the government does impose these acceptable limitations, they must prove to be content neutral. See id. at 18–19. According to Summum, Pleasant Grove’s refusal to permit the display of its monument fails to meet any of the criteria above because the only compelling interest it can provide is its desire to promote local history. See id. Summum argues that interest in local history is a façade for discrimination, as there are other monuments in the park with little or no relevance to the history of Pleasant Grove. See id. at 21–25.
Pleasant Grove contends that whether or not Pioneer Park is a public forum under the First Amendment is irrelevant, and does not disagree that Pioneer Park is a public forum. See Brief for Petitioner at 39. Instead, Pleasant Grove asserts that the city’s process for selecting the monuments is the forum at issue here, not Pioneer Park. See id. at 41–42. Pleasant Grove explains that selecting monuments is akin to all other decisions made by a “discretionary governmental selection process,” and private parties have no First Amendment right to interfere with such processes. See id. Even if the Court finds that Pioneer Park is the relevant forum, Pleasant Grove claims that the Court should find that the Park is not a “traditional public forum for the deposit of unattended objects.” Id. at 43. Pleasant Grove draws a sharp line between traditionally protected personal speech activities and Summum’s request to leave a permanent object unattended in a public park. See id. The city argues it is well within its rights to deny the display because it would intrude into the public space. See id. at 44. Pleasant Grove disputes that it created a public forum by accepting and installing monuments donated by private parties. See id. at 45. It asserts that all the city did was put a mechanism in place by which the city could field admissions to the park on its own terms. See id. at 47. Should the Court reject this analysis, Pleasant Grove says that as the owner of the park, it is entitled to preserve its property. See id. Even as a nonpublic forum, the government need only show restrictions it made were within reason and content-neutral, both of which are satisfied by the argument that the city wants to protect and promote local history. See id. at 47–49.
Should the City Immediately Erect and Display the Summum Monument?
Both parties present predictions to the Court of what will happen in the wake of its decision. Pleasant Grove foresees a “practical nightmare” where all public lands become overcrowded with monuments, all trying to express their own viewpoints. Brief for Petitioner at 50. Pleasant Grove stresses its point by saying that if the First Amendment requires a government to display all other viewpoints along with its own, then by accepting a Statue of Liberty, a government would also be compelled to accept a “Statue of Tyranny.” Id. at 2. Summum discredits this as fear-mongering, and claims that the “the Court of Appeals’ decision will not lead to a Parade of Horribles.” Brief for Respondent at 54. Summum reiterates that it does not advocate that all public parks should become a dumping ground for all monuments. See id. at 54–55. It clarifies that Pleasant Grove’s acceptance of the Ten Commandments monument qualifies as private speech and not government speech, thereby subjecting it to First Amendment considerations. See id.
Pleasant Grove City v. Summum will determine much more than whether or not a little-known religion can display its own monument in a city park. By deciding whether or not the Ten Commandments monument is government speech or private speech, the Supreme Court could impact the manner in which public monuments and memorials are accepted and displayed. If the Court agrees with the Tenth Circuit’s decision, it could cause a landslide of litigation from other private groups hoping to change the face of their public spaces. This would create a need for governments to allow no monuments, allow all monuments, or be very clear in declaring that the monuments they chose to display in public spaces contained their own speech.
Edited by: Lauren Buechner
- Dorf on Law: Seven Aphorisms
- American Constitution Society Blog: "Seven Aphorisms" Not Yet Written In Stone
- ScotusWiki: Pleasant Grove City v. Summun
- LA Times: Ten Commandments Back in Court
- FindLaw: A Small Religion Brings a Big First Amendment Question to the Supreme Court
- Christian Science Monitor: U.S. Supreme Court Takes a New 10 Commandments Case
- USA Today: Court to Consider Rules on Religious Displays
- LA Times: Supreme Court to Consider Ten Commandments vs. 'Seven Aphorisms'
- Washington Post: With the Commandments, Must City Make Room?
- Associated Press: Court Agrees to Take Free Speech Case Retrieved from http://www.scotuswiki.com/index.php?title=Pleasant_Grove_City%2C_UT_v._Summum