Argument preview: Pleasant Grove City v. Summum

By Lyle Denniston
on Nov 11, 2008 at 12:26 pm

At 10 a.m. Wednesday, the Supreme Court will hear argument on the constitutional status of monuments placed in public parks by private groups or individiuals, in the case of Pleasant Grove City, et al., v. Summum (07-665).  The Utah city will be represented by Jay Alan Sekulow of the American Center for Law and Justice, dividing time with Deputy U.S. Solicitor General Daryl Joseffer for the United States as amicus.  Pamela Harris of O’Melveny & Myers will represent the religious group, Summum.  The following material was prepared, in significant part, by Troy D. Cahill and Steven C. Wu of Akin Gump. Links to the documents filed in the case can be found on ScotusWiki at this link.

NOTE TO READERS: The background and petition stage mateials here were published previously in 2007 as a copyrighted work of ALM Properties Inc.  Updated factual information has been added.  (Disclosure: Akin Gump is co-counsel for the City.)

Background

In September 2003, the mayor of Pleasant Grove City, Utah, received an unusual letter from Summum “Corky” Ra, the leader of a little-known religious organization based in Salt Lake City. As he had done in other towns in Utah, Ra sought permission to erect a monument to the “Seven Aphorisms of Summum” in a city park, alongside a depiction of the Ten Commandments that had been donated to the city more than three decades prior.

After city officials denied his request, Ra filed a suit alleging a violation of the free speech clause of the First Amendment. The U.S. Court of Appeals for the 10th Circuit eventually agreed, finding the park to be a traditional public forum and the Ten Commandments monument to constitute the private speech of the original donor.

The case could impact whether municipalities around the country will continue to display donated monuments on public property. 

Founded in Salt Lake City in 1975, the Summum faith believes Moses originally descended from Mount Sinai, not with the Ten Commandments, but with a set of seven principles – or aphorisms – that he revealed to only a select few. Over the last decade, leaders of the faith have sought to erect monuments of the aphorisms in numerous Utah towns alongside displays of the Ten Commandments donated by private organizations.

Pleasant Grove denied the Summum’s request, citing a city requirement that permanent displays in the park either be directly related to city history or be donated by a group with longstanding community ties. (The Ten Commandments monument was donated by the Fraternal Order of Eagles.)

In the suit, the Summum contended the city violated its free speech rights by excluding its monument while allowing the Ten Commandments monument to be displayed in the park. After the district court denied the Summum’s request for a preliminary injunction, the 10th Circuit reversed with instructions to grant a preliminary injunction allowing the Summum to erect its monument in Pioneer Park.

The Circuit panel reached its decision after concluding the case implicated private speech in a public forum, not government speech. With regard to the type of forum implicated, the panel held that “the nature of the forum in this case is public” because a “city park” is “a traditional public forum.” Therefore, the panel reasoned, “the city’s restrictions on speech are subject to strict scrutiny” – a standard of review that the city’s denial of the Summum’s request would likely fail.

The city petitioned for rehearing en banc, urging the 10th Circuit to overrule circuit precedent holding that a monument donated to a city remains the private speech of the donor. The city contended that, because it owned and controlled the monuments erected in its park, the display of such monuments constitutes government speech that created no forum for private speech and, therefore, the city was free to make content-based or viewpoint-based choices.

The 10th Circuit denied en banc rehearing by an equally divided 6-6 vote. Writing separately, Judge Michael McConnell (in an opinion joined by Judge Neil Gorsuch) and Judge Carlos Lucero dissented from the denial of rehearing en banc. Then-Chief Judge Deanell Reece Tacha, author of the original panel decision, took the “unprecedented step” of filing a separate opinion in response to the dissents and specifically rejected the contention that this was a “government speech” case.

 Petition for Certiorari

In its petition, Pleasant Grove argues that the 10th Circuit’s ruling creates two circuit splits on important free speech issues. First, according to the petition, the 10th Circuit made an “analytical misstep” and created a conflict with the decisions of other circuits when it held that a donated monument which is owned, controlled, and displayed by a municipality is not government speech, but instead remains the private speech of the original donor.

Second, the 10th Circuit held that the placement of donated monuments in a government-owned park creates a public forum for monuments, while, according to the petition, other circuits hold that the government retains authority to select which structures, if any, to display. Pleasant Grove also emphasizes the practical impact of the 10th Circuit’s decision by contending that the ruling “creates a right of ‘equal access’ for the erection of permanent monuments.”

Summum urged the court to deny certiorari. Depicting the case as “narrow and fact-specific,” the group contended that the 10th Circuit’s ruling does not announce a broad new rule and does not conflict with any decision from other circuits.

Instead, the Summum argues, the decision turns on the fact that the city historically has treated permanent displays on public property as private speech. Also limiting the scope of the decision, according to the Summum, is the fact that the decision only applies to privately donated and unsolicited displays and reaches only public parks and other public spaces that historically have been treated as public fora.

According to the Summum, these factors, in conjunction with the fact that the decision below arises from a denial of a preliminary injunction as opposed to a final judgment, make this case a poor candidate for Supreme Court review.

Merits Briefs

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 on Washington’s Mall. 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 merits brief relies heavily on the long-standing doctrine that public parks, like streets and sidewalks, are public forums and that government may not discriminate among those who would speak in such settings, based on the content of their message.  If the Utah city were to open a section of its city park to allow the Eagles organization “to proclaim their understanding of the commandments handed down to Moses,” it certainly could not “prohibit Summum from speaking about its own version of those commandments,” the brief asserts.

The religious group argues that the case can be decided based on what it describes as the city’s concession “that the criteria it purportedly used to deny Summum equal access to its park are content- and speaker-based.”  But the city claim of a policy of approving monuments related to town history is only an after-the-fact assertion to cover its “singular bias against Summum and its message,” the brief states. “The City has never denied a single other request to donate a display; only Summum has been barred from the park,” it says.

Even assuming that the Ten Commandments does relate to the community’s history by sending a message of religious freedom, the brief contends that there is no reason to question that the Summum monument fosters the same idea. The City, it adds, “transgressed the most fundamental First Amendment boundaries, taking sides in a theological debate by granting preferential access to a traditional public forum.”

It is not open to the city, Summum contends, to claim that the forum in question is not the park itself, but the monuments in the park.  That claim is barred by the Supreme Court’s 1995 decision in Capital Square Review Board v. Pinette, holding unconstitutional a content-based exclusion of an unattended display from a city square — there, a cross sponsored by the Ku Klux Klan in Columbus, Ohio.  That ruling treated the square as the forum, not the displays allowed there.  The Court, Summum suggests, made clear is that a city may not do what Pleasant Grove did: “Award selective access to a particular mode of communicationo on the basis of content or viewpoint.”

Challenging the City’s assertion that the Ten Commandment monument put up by the Eagles has become “government speech,” Summum contends that the City cannot claim it controlled the message conveyed.  It was the Eagles’ message at the outset, and the City has taken no formal action that would show that the Commandments are the local government’s own view.

Having not itself uttered the Commandments message “at the front end,” and having not adopted it “at the back,” Summum says, Pleasant Grove has not put forth “the defining characeristic of government speech.” Ownership of a message-bearing monument is not sufficient.

The City, the brief goes on, “cannot save its discrimination against Summum’s proposed speech by invoking cases in which the government ‘speaks’ by exercising editorial discretion in selecting and compiling private speech it wishes to present to the public.”  The government, under the First Amendment, may not edit private speech for content in a public forum, it says.

Finally, the Summum brief seeks to discount the slippery slope argument, contending that most monuments do, in fact, constitute government speech because officials typically control content of sponsored displays, or adopting that content after the fact.  “All that is required is that the government take responsibility for its own message,” Summum concludes.

Amicus Briefs

The case has attracted a wide array of amici, with those briefs quite heavily weighted in favor of Pleasant Grove’s local government.  Among those on that side of the case are states, cities, veterans’ groups, religious organizations, and conservative legal advocacy groups — but, perhaps most significantly, the federal government.  Two amici briefs directly support Summum, while four others side with neither the City nor with Summum.

The United States, giving a poignant emphasis to the City’s side — and the federal government’s side — of the argument, points out that the Statue of Liberty is a private object placed in a national park.  Joining in the case to defend its interest in controlling the messages that are uttered by permanent displays on federal property, it notes that the National Park Service “manages 391 park units, which span more than 84 million acres,” containing thousands of privately designed or funded “commemorative objects.” Much of the public sculpture in Washington, D.C., it points out, is in that category.

Emphasizing the “government speech” argument, the federal brief says that the selection of such objects bespeaks essential control — whether or not officials direct the original design of such objects, whether or not they were donated by private groups or individuals, or whether or not officials have explicitly adopted or disavowed the messages on those objects.  The government has “countless displays” in its museums, libraries, cemeteries, battlefields and parks, all of which it came by through private donations, the brief says. 

But, the Solicitor General’s filing goes on, even if; the Court were to conclude that some of the items displayed in government-run places like Pleasant Grove’s Pioneer Park speak the views of their private donors, public spaces usually are open for private utterances for limited duration only.  “There is (to say the least) no longstandng tradition of private parties erecting permanent monuments in public parks on their own accord,” the Solicitor declares.

The federal brief offers the Court a formulation that can be paraphrased this way: a city park, however public it might be in other respects, is not a public forum when it comes to “the permanent display of privately donated objects,” so the government is constitutionally free to choose the objects that get displayed based on reasonable, nondiscriminatory criteria.  That formulation, it contends, is satisfied in the Pleasant Grove situation.

Analysis

This case is outwardly simple — and partly because there is no church-state separation question at stake, even though the underlying contest here is between a city’s acceptance of a Ten Commandments monument and its rejection of a monument with an alternative religious message. The only part of the First Amendment put into play, by all sides in the case, is the Free Speech Clause, not the Establishment Clause nor the Free Exercise Clause.  Thus, the deep divisions in the present Court over Ten Commandments dispolays may not necessarily reappear in deciding this case.

Some of the questions that are open to the Court do appear to be simple, at least superficially: Is a city park a public forum, or not? What makes it so?  Whose message is on a monument donated by a private source? Is the choice of a display in a public space itself a message?  If such selection amounts to a message, does that make it government speech?

But lurking in those questions are multiple layers of complication.  Public forum doctrine, for example, now embraces an array of distinctions in how public spaces are used for expressive activity.  Merely calling a space public does not necessarily open it to all utterances. Similarly, how to define “government speech” is increasingly difficult.  What does the government have to do to make an utterance, in a public space, its own?

Running as an undercurrent in the case is another potential complication: how will the slippery slope argument play?  Will the Justices’ vision be fogged by a cloud of potential horribles? The Solicitor General’s brief well illustrates this argument: “Under the decision below, a city’s display of a privately donated monument to Abraham Lincoln could entitle an individual to insist that the city permit the erection of a monument to Jefferson Davis, or a group could insist that the presence of the memorial in [Pleasant Grove’s] Pioneer Park commemorating the September 11 attacks entitles it to erect a memorial to the terrorists who carried them out.”

The Court is expected to decide the case before recessing next summer.