In Pleasant Grove City v. Summum, the near unanimity of the court on what could be viewed as a complex doctrinal question of “mixed” public-private expression can be explained by two points. The first is the complete impracticality of Summum’s position, and the second is its continued, unhampered right to speak in that park location.
First, the 10th U.S. Circuit Court of Appeals panel had held that, because a city park is a “public forum,” the city’s rejection of the “Seven Aphorisms” monument was subject to strict scrutiny, and so it ordered immediate installation. The Supreme Court, relying on amicus briefs by the American Legion and the International Municipal Lawyers Association (IMLA), recognized that thousands of monuments across the country, as well as many national treasures, were donated or privately financed. Applying the content-neutral rules required by forum analysis would create unwieldy clutter or force removal of long-standing symbols. Justice Samuel A. Alito Jr. concluded, “where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place.”
