It's a trap.
--Admiral Ackbar
I don't think there's a person who follows the Supreme Court regularly who wasn't fascinated by the case of Pleasant Grove City v. Summum, a free speech/religion/public forum case argued before the Supreme Court of the United States back in November and decided today. I couldn't even write the story about it when it was argued, so complicated this mess is, and in my draft story upon which I spent days trying to sort this out I had set an informal over-under of 4.5 separate opinions from the nine Justices. It ended up being five today, though they all ended up with the same outcome. Let me explain.
So there's this religion called "Summum," founded by Claude "Corky" Nowell in 1975. They believe in some freaky stuff, including mummification, but what's most relevant for our purposes is that they believe that God handed to Moses at Sinai a series of Seven Aphorisms, but because the Israelites weren't ready for them yet, they got the Ten Commandments instead.
Flash forward to Pleasant Grove, Utah, in the modern day. Pioneer Park downtown has a bunch of statues and monuments, including a massive Ten Commandments donated by the Fraternal Order of Eagles. And so in 2003, Summum's founder, Corky requested permission to donate a Seven Aphorisms monument to the public park as well. The town said no. Corky sued.
There are two different ways simultaneously that one could view this matter, and the choice of frame has a strong impact upon the outcome:
- If this is a public forum case, then the government has set up a space in the park in which other groups have been free to speak through their monuments but the Summum have been unconstitutionally denied equal access on the basis of the content of their speech. To which the government says, hold on! If we allow a 9/11 Memorial on public land, do we also have to allow an al Qaida monument?
- If this is a government speech case -- i.e., we choose to present the Ten Commandments in our park, then the government may be allowed to pick and choose what it says (think Rust v. Sullivan, the abortion "gag rule" case), or just the general notion of government-as-curator with public art museums, but in that case they run the risk of the Ten Commandments monument also being declared un-kosher as an Establishment Clause violation.
Justice Alito, writing the opinion of the Court on behalf of everyone-but-Souter, adopted the second approach, concluding that while "a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies," and as government speech the message could be controlled:
The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. A government entity has the right to "speak for itself." "[I]t is entitled to say what it wishes," and to select the views that it wants to express. See Rust v. Sullivan, 500 S. 173, 194 (1991); National Endowment for Arts v. Finley, 524 U. S. 569, 598 (1998) (SCALIA, J., concurring in judgment) ("It is the very business of government to favor and disfavor points of view").
(Many cites deleted for clarity throughout.)
When it comes to privately-funded monuments in a public park, writes Justice Alito, it's easy to tell who's speaking:
There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure. Neither the Court of Appeals nor respondent disputes the obvious proposition that a monument that is commissioned and financed by a government body for placement on public land constitutes government speech.
Just as government-commissioned and government financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land. It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf. In this context, there is little chance that observers will fail to appreciate the identity of the speaker. This is true whether the monument is located on private property or on public property, such as national, state, or city park land.
We think it is fair to say that throughout our Nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity. A great many of the monuments that adorn the Nation’s public parks were financed with private funds or donated by private parties. Sites managed by the National Park Service contain thousands of privately designed or funded commemorative objects, including the Statue of Liberty, the Marine Corps War Memorial (the Iwo Jima monument), and the Vietnam Veterans Memorial. States and cities likewise have received thousands of donated monuments. By accepting monuments that are privately funded or donated, government entities save tax dollars and are able to acquire monuments that they could not have afforded to fund on their own.
And as curator and speaker, government can pick and choose which monuments to have erected. Does this mean that government is adopting the message of the monument, namely the Ten Commandments?
What [Summum] demands, however, is that the City "adopt" or "embrace" "the message" that it associates with the monument. Respondent seems to think that a monument can convey only one "message"—which is, presumably, the message intended by the donor—and that, if a government entity that accepts a monument for placement on its property does not formally embrace that message, then the government has not engaged in expressive conduct.
This argument fundamentally misunderstands the way monuments convey meaning. The meaning conveyed by a monument is generally not a simple one like "‘Beef. It’s What’s for Dinner.’" Johanns, supra, at 554. Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by the briefing in this case illustrate this phenomenon.
What, for example, is "the message" of the Greco-Roman mosaic of the word "Imagine" that was donated to New York City’s Central Park in memory of John Lennon? Some observers may "imagine" the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may "imagine" a world without religion, countries, possessions, greed, or hunger....
These text-based monuments are almost certain to evoke different thoughts and sentiments in the minds of different observers, and the effect of monuments that do not contain text is likely to be even more variable. Consider, for example, the statue of Pancho Villa that was given to the city of Tucson, Arizona, in 1981 by the Government of Mexico with, according to a Tucson publication, "a wry sense of irony." Does this statue commemorate a "revolutionary leader who advocated for agrarian reform and the poor" or "a violent bandit"?
And, finally, are the realistic consequences of forcing more even-handedness in monument selection:
If government entities must maintain viewpoint neutrality in their selection of donated monuments, they must either "brace themselves for an influx of clutter" or face the pressure to remove longstanding and cherished monuments. Every jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a donated monument questioning the cause for which the veterans fought. New York City, having accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome, Alaska, during a diphtheria epidemic) may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration. The obvious truth of the matter is that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations. And 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.
Concurrences, in order of seniority, begin with Stevens/Ginsburg, who want to draw a line between this case and other government speech cases with which they still disagree:
I think the reasons justifying the city’s refusal would have been equally valid if its acceptance of the monument, instead of being characterized as "government speech," had merely been deemed an implicit endorsement of the donor’s message. To date, our decisions relying on the recently minted government speech doctrine to uphold government action have been few and, in my view, of doubtful merit. See, e.g.,... Rust v. Sullivan, 500 U. S. 173 (1991). The Court’s opinion in this case signals no expansion of that doctrine. And by joining the Court’s opinion, I do not mean to indicate agreement with our earlier decisions. ...
[R]ecognizing permanent displays on public property as government speech will not give the government free license to communicate offensive or partisan messages. For even if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution’s other proscriptions, including those supplied by the Establishment and Equal Protection Clauses.
Justices Scalia and Thomas hit the Establishment Clause issue head-on:
I agree with the Court’s analysis of that question and join its opinion in full. But it is also obvious that from the start, the case has been litigated in the shadow of the First Amendment’s Establishment Clause: the city wary of associating itself too closely with the Ten Commandments monument displayed in the park, lest that be deemed a breach in the so-called "wall of separation between church and State." ... The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.
In Van Orden v. Perry (2005), this Court upheld against Establishment Clause challenge a virtually identical Ten Commandments monument, donated by the very same organization (the Fraternal Order of Eagles), which was displayed on the grounds surrounding the Texas State Capitol. ... For the plurality, that was because the Ten Commandments "have an undeniable historical meaning" in addition to their "religious significance," id., at 690 (opinion of Rehnquist, C. J.). JUSTICE BREYER, concurring in the judgment, agreed that the monument conveyed a permissible secular message, as evidenced by its location in a park that contained multiple monuments and historical markers; by the fact that it had been donated by the Eagles "as part of that organization’s efforts to combat juvenile delinquency"; and by the length of time (40 years) for which the monument had gone unchallenged.
The city can safely exhale. Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary—and, yes, even its Ten Commandments monument—without fear that they are complicit in an establishment of religion.
Justice Breyer:
I agree with the Court and join its opinion. I do so, however, on the understanding that the "government speech" doctrine is a rule of thumb, not a rigid category. Were the City to discriminate in the selection of permanent monuments on grounds unrelated to the display’s theme, say solely on political grounds, its action might well violate the First Amendment...
The City has not closed off its parks to speech; no one claims that the City prevents Summum’s members from engaging in speech in a form more transient than a permanent monument. Rather, the City has simply reserved some space in the park for projects designed to further other than free-speech goals. And that is perfectly proper. After all, parks do not serve speech-related interests alone. To the contrary, cities use park space to further a variety of recreational, historical, educational, aesthetic, and other civic interests. To reserve to the City the power to pick and choose among proposed monuments according to criteria reasonably related to one or more of these legitimate ends restricts Summum’s expression, but, given the impracticality of alternatives and viewed in light of the City’s legitimate needs, the restriction is not disproportionate.
Finally, Justice Souter has some qualms about where this is headed, or about applying any kind of per se rule:
After today’s decision, whenever a government maintains a monument it will presumably be understood to be engaging in government speech. If the monument has some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized. In such an instance, there will be safety in numbers, and it will be in the interest of a careful government to accept other monuments to stand nearby, to dilute the appearance of adopting whatever particular religious position the single example alone might stand for. As mementoes and testimonials pile up, however, the chatter may well make it less intuitively obvious that the government is speaking in its own right simply by maintaining the monuments.
If a case like that occurred, as suspicion grew that some of the permanent displays were not government speech at all (or at least had an equally private character associated with private donors), a further Establishment Clause prohibition would surface, the bar against preferring some religious speakers over others.
To avoid relying on a per se rule to say when speech is governmental, the best approach that occurs to me is to ask whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land. This reasonable observer test for governmental character is of a piece with the one for spotting forbidden governmental endorsement of religion in the Establishment Clause cases.
The Court's full opinion is here.
[Full disclosure: I am involved in a matter currently pending before the Supreme Court of the United States, and no, I'm not going to discuss it here. It has nothing to do with this area of the law, or with blogging or this site at all, but out of prudence I'm trying to keep diaries like this one more descriptive than argumentative. I'll leave the arguing over who has the best of this one to y'all in the comments.]
added: Via SCOTUSblog, for context:
At the oral argument, Chief Justice John G. Roberts, Jr., told a lawyer for the small Utah city defending its policy on a Ten Commandments monument in a city park: "You’re just picking your poison, aren’t you? I mean, the more you say that the monument is government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause."
... [Today's opinion] certainly did not put an end to a constitutional controversy. Three Justices suggested quite plainly that, if the city is perceived as embracing the Christian dogma that is behind the Ten Commandments, the First Amendment’s Establishment Clause may come into play. But two Justices said there simply won’t be an Establishment Clause problem down the road. And that debate surely will go on....
It does appear, though, that future cases over displays of religion in the public square are not likely to turn on free speech analyses. Wednesday’s decision seems clearly to have scuttled that as a litigating strategy against, at least, permanent monuments. So religious displays will still be judged by the Court by the sometimes meandering interpretation of what the Establishment Clause forbids, or permits.
