New Filing: Petitioner’s Brief in Pleasant Grove v. Summum

The following post is by Steven Wu, an associate at Akin Gump. Steven worked on the brief discussed in this entry.

On Monday, the city of Pleasant Grove, Utah, filed this opening brief with the Supreme Court in the case of Pleasant Grove City v. Summum, No. 07-665. The issue in the case is whether the city violated a private group’s free speech rights when it refused to display the group’s proposed monument in a public park that already contained other privately donated but government owned monuments. (Disclosure: Akin Gump is co-counsel for the City.)

A longer description of the background to the case may be found here. To summarize: Summum is a church founded in 1975 by Claude “Corky” Nowell, a.k.a. Summum Bonum Amon Ra. Among other beliefs, Summum holds that the Old Testament’s Ten Commandments are an incomplete expression of nature’s laws. A full expression, Summum believes, should also include the Seven Aphorisms of Summum.

In 2003, Summum sent a letter to the mayor of Pleasant Grove City — a small town that was one of the earliest Mormon settlements in Utah — seeking permission to erect a monument containing the Seven Aphorisms alongside an existing monument of the Ten Commandments in the city’s Pioneer Park. The Ten Commandments monument had been donated to the city by the Fraternal Order of Eagles several decades ago. In addition to the Ten Commandments monument, Pioneer Park contains a number of other buildings, monuments, plaques, and memorials that portray and commemorate the city’s Mormon pioneer and civic heritage.

City officials denied the request, and Summum filed a suit alleging a violation of the Free Speech Clause of the First Amendment and seeking an injunction ordering the city to display its monument. The district court denied the preliminary injunction, but the U.S. Court of Appeals for the Tenth Circuit eventually agreed with Summum, holding that Pleasant Grove’s display of monuments was a regulation of private speech, that Pioneer Park was a traditional public forum, that Pleasant Grove’s denial of Summum’s request was subject to strict scrutiny, and that the city’s decision not to allow Summum to erect its monument did not properly advance a compelling governmental interest.

Rehearing en banc was denied by an equally divided 6-6 vote. In a dissent from the denial of rehearing en banc, Judge McConnell argued that the Pioneer Park “monuments constitute government speech”; Pleasant Grove had not, “by word or deed, invite[d] private citizens to erect monuments of their own choosing in these parks.” Judge Lucero also dissented, albeit on different grounds. He agreed with the panel that the Pioneer Park monuments were not private speech, but argued that a public park simply could not be a traditional public forum “insofar as the placement of monuments is concerned.” Both judges lamented the harmful practical consequences of the panel’s decision: as Judge McConnell noted, “Every park in the country that has accepted a VFW memorial is now a public forum for the erection of permanent fixed monuments; they must either remove the war memorials or brace themselves for an influx of clutter.” (The various opinions from the Tenth Circuit may be found here.)

Pleasant Grove’s opening brief challenges the Tenth Circuit panel’s ruling on both government-speech and public-forum grounds. The brief argues, first, that Pleasant Grove’s decisions about the monuments to be displayed in Pioneer Park — including its decision not to put up the Summum monument — represent government speech. Governments at all levels routinely engage in a wide variety of speech expressing particular viewpoints, from Smokey the Bear reminding children that “Only You Can Prevent Wildfires,” to Nancy Reagan’s “Just Say No” campaign. And one well-established tradition of government speech is the selection and display of monuments on public land, like those on the National Mall. Monuments frequently serve as statements of respect for history, as commemorations of important individuals or entities in the community, as celebrations of culture, or as tributes to the defining significance of events or organizations.

The brief further argues that the mere fact that a monument was privately planned, created, and donated does not divest it of its governmental character, so long as a government made the ultimate editorial judgment to display it as consistent with the government’s message. Private parties have been instrumental in proposing or funding a large number of the United States’ most iconic monuments, such as the Vietnam Veterans’ Memorial. And, outside of the monument context, courts have recognized that government speech remains government speech even when private parties are heavily involved — the most prominent example being the government’s “Beef: It’s What’s for Dinner” campaign.

Pleasant Grove argues that its selection of privately donated monuments for display in Pioneer Park fits within this long tradition of government speech. As the speaker, the city argues, it is under no obligation to modify its message to accommodate Summum’s speech; instead, Pleasant Grove “is entitled to say what it wishes” through its monuments and can “take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.”

In addition to its government-speech argument, Pleasant Grove also argues that Pioneer Park is not a forum for private parties to display permanent, unattended monuments. As an initial matter, Pleasant Grove contends that the relevant “forum” is not Pioneer Park at all, but rather the city’s own policy about whether and when to display monuments — a policy to which no private party, including Summum, has been given access. Because Pleasant Grove is solely responsible for that policy, there is no “public” forum whatsoever in this case.

Even ignoring that point, however, Pleasant Grove argues that the Tenth Circuit erred by focusing on Pioneer Park’s status as a traditional public forum — public places that “by long tradition or by government fiat, have been devoted to assembly and debate.” Although public parks are traditional public forums for transient speech such as leafletting, carrying signs, and oral utterances, there is no similar historic tradition of allowing private parties to deposit unapproved, unattended monuments in public parks.

Nor is Pioneer Park a public forum that the government has expressly designated for private speakers to speak through monuments. Pleasant Grove points out that its monument policy does not allow any private party carte blanche to erect a monument; instead, the city retains the ultimate discretion to decide whether and when to accept a monument for display on public property.

Pleasant Grove ends its brief by pointing out the “practical nightmare that would follow from embracing the decision below.” “[D]onated monuments are ubiquitous on governmental property,” and such monuments frequently display a one-sided message from the government. If private parties can insist on adding their own monuments, then public spaces will quickly become cluttered with physical structures — or completely silent, as governments close off their spaces to all monuments.

Summum’s brief is due on August 15, and the case will be argued this fall, though no argument date has been set.