Image: Gayle Hegland
'PLEASANT GROVE CITY V. SUMMUM'
9-0 decision makes sense
March 23, 2009
A 9-0 judgment for Pleasant Grove City, Utah, on a case involving an icon of the "Culture Wars" — a government-displayed Ten Commandments monument — what's going on here? Is it the perfect confluence of Chief Justice John G. Roberts Jr.'s goal of narrow, unanimous opinions and new President Barack Obama's vision for unifying red and blue states? At least in the certiorari granted and oral argument news cycles, most media stories focused on discrimination against a tiny religion in favor of the familiar Judeo-Christian monument, but that was never the legal issue in the case. Instead, the U.S. Supreme Court held that a government's display of a privately donated, permanent monument is "government speech," so that its decisions to accept or reject proffered donations are not covered by the free speech clause.
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."
The respondent tried to use the lurking establishment clause concerns, arguing that donated monuments could only be government speech if the government publicly adopted each monument's message through a formal process, such as by passing a resolution. The court found that to be an enormous and "pointless exercise," because a city's installation of a permanent monument in its park "unmistakably signif[ies] to all Park visitors that the City intends the monument to speak on its behalf." All nine justices agreed with that analysis — the question is: Where does that lead? Is any establishment clause challenge futile in light of Van Orden v. Perry (the 2005 decision upholding Texas' display of a similar Eagles' Ten Commandments monument that also was long-standing, outdoors and surrounded by many other monuments)?
Justice Antonin Scalia wrote a concurrence to address that question, raised frequently at the oral argument (even by Roberts): "The city ought not fear that today's victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire." Justice David Souter, the only justice concurring only in the judgment, opened by stating his agreement that "the Ten Commandments monument is government speech, that is, an expression of a government's position on the moral and religious issues raised by the subject of the monument."
For now, though, the conclusion that all who see monuments on public parks attribute them to the government landowner (which is supported by municipal practice examples in the IMLA brief) seems to satisfy the "transparency" requirement, suggested by legal scholars and missing from earlier government speech cases.
Second, this government speech decision was not divided, unlike previous decisions in Johanns v. Livestock Marketing, NEA v. Finley and Rust v. Sullivan, precisely because public parks — the disputed venue here — are open to all for traditional, transitory speech activities. The Summums, and others whose monument donations are declined, remain free to make speeches, pass out literature and hold rallies, subject only to content-neutral time/place/manner restrictions. In fact, the IMLA brief demonstrates that frequently government display of donated monuments in city parks actually increases private speech, by serving as a focal point (think anti-war protests held around war memorials).
Looking ahead
What are the limits of this expanding government speech doctrine? How will courts apply Pleasant Grove to the more litigated issues when they wrestle with the forum/government speech categories, such as specialty license plate cases and legislative chaplain controversies? Alito's opinion focuses on ownership, selectivity and attribution — to oversimplify a topic that will generate law review articles and occupy government counsel. While significant as the first high court government speech decision not involving a government-funded program, this case did not require defining the doctrine's limits, except for the nonconclusive acknowledgment that the establishment clause applies. Justice Stephen G. Breyer's often essential concurring opinion suggests asking "whether a government action burdens speech disproportionately in light of the action's tendency to further a legitimate government objective." Just the kind of test that keeps lawyers busy — and perhaps as good as it gets.
Mary Jean Dolan is an assistant professor at The John Marshall Law School in Chicago. She wrote the amicus brief for the International Municipal Lawyers Association in the Pleasant Grove case, as well as an article on the case in the current issue of Catholic University Law Review.
Most Popular Headlines
- Top ABA staffers exit amid reorganization
- Daschle departing Alston for DLA Piper
- Unanimous 7th Circuit finds mezuzah removal worth a lawsuit
- Employers unsure about medical marijuana
- Obama shakes up counsel's office
- The 2009 NLJ 250
- New approaches to law firm recruitment
- Hasan case to test military justice system
- 'He had the ability to do anything'
- No quiet time for new justice
