WASHINGTON — Pleasant Grove City, Utah, said yes to placement of a Ten Commandments monument on its public park land in 1971. In 2003 it said no to a similar monument proposed by Summum, a lesser-known religious sect that embraces Seven Aphorisms instead of Ten Commandments.
That set of facts — a city favoring one religious belief over another — would seem to raise an establishment-of-religion issue under the establishment clause of the First Amendment that the Supreme Court would have to resolve when it hears the case of Pleasant Grove City v. Summum on Nov. 12.
But neither the official “questions presented” in the case nor the city’s brief mentions the establishment clause at all. And the main Supreme Court precedent the two sides cite seems to be Johanns v. Livestock Marketing Association, a 2005 decision that has nothing to do with religion. That ruling upheld the beef industry’s marketing program with its slogan, “Beef: It’s What’s for Dinner.”
So how did the establishment clause become irrelevant in a case that seems to implicate the clause fairly directly? One reason appears to be that under precedent of the 10th U.S. Circuit Court of Appeals, which governs Utah, Ten Commandments displays had been deemed to be either secular in nature or private religious speech, both of which would take them out of the purview of the establishment clause. Summum might have lost at the starting gate if it had invoked the establishment clause in challenging the city’s differential treatment.
In addition, as the case wended its way through the courts, the city tried to reframe its approval of a Ten Commandments memorial as an example of government speech. That categorization allows the speaking government entity to pick and choose the messages it conveys or refuses to convey, largely without First Amendment constraints.
The 10th Circuit did not agree with Pleasant Grove City. It ruled that the Ten Commandments display in the city park was private speech in a traditional public forum, making city restrictions on Summum subject to strict First Amendment freedom-of-speech scrutiny. Under that high standard, the appeals panel found the city had engaged in content-based discrimination that would be incompatible with the First Amendment.
The city sought review by the full 10th Circuit. Its motion was denied, but Judge Michael McConnell, one of the most influential appeals judge in the nation on First Amendment issues, dissented.
McConnell viewed the city’s actions as government speech, in part because the monuments the city has approved are under the city’s control. Under the panel’s erroneous public-forum analysis, McConnell said, “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.”
McConnell’s dissent from the denial of full-court review helped signal to the Supreme Court that Pleasant Grove City’s appeal was worth a look, as a government-speech, rather than an establishment-clause, case. That is how it now comes to the Supreme Court for argument this week.
The case’s emphasis on government-speech doctrine explains why the Johanns decision has come into prominence. In that case, certain beef producers objected to a congressionally mandated marketing program funded through a fee imposed on cattle sales. The beef producers claimed they were being compelled to fund a message with which they disagreed, violating their free-speech rights. But by a 6-3 vote, the high court ruled that the beef-marketing program was in fact government speech, in spite of its funding source, and therefore did not violate the First Amendment.
But as some of the briefs filed in the Summum case suggest, categorizing the city’s actions as government speech does not eliminate First Amendment scrutiny completely. If it is the government speaking, it still could be argued that the government may not speak in ways that violate the establishment clause. The establishment clause may yet re-enter the case.
Following are excerpts from briefs on both sides of the case:
Supporting Pleasant Grove City
Brief of Pleasant Grove City: “The decision below threatens to wreak havoc upon governments at every level in their ability to control the permanent physical occupation of government land. Given the ubiquity of governmental bodies displaying donated monuments on public property … — from the Statue of Liberty on down — a host of federal, state, and local government bodies would be, under the Tenth Circuit’s logic, sitting targets for demands they cede piece after piece of government land to forced occupation, by any group, with whatever monuments that group wishes to have installed, be it Summum’s Seven Aphorisms, PETA’s suffering circus elephant, or Rev. Fred Phelps’s denunciations of homosexual persons.”
Brief of Commonwealth of Virginia, 13 other states, and Puerto Rico: “If government can spend money to purchase newspaper and radio advertisements saying ‘immunize your child,’ government can accept a donation of a privately financed billboard that says, ‘immunize your child.’ Moreover, having advocated the message of childhood immunization, government can refuse the donation of a billboard that says, ‘immunization is a government conspiracy.’”
Brief of the Becket Fund for Religious Liberty: “Just as a short-term unattended display may be either government speech or private speech, so too a longterm, virtually permanent inscription on public property may be either government speech or private speech. The monument in the present case is surely government speech. The city, after all, is free to do with it as it pleases; it can alter the inscription, move the monument, or take it down altogether, at any time for any reason. It is important to distinguish this type of long-term government speech from the sorts of long-term private speech that occur in religious messages or symbols placed, for example, on headstones in government cemeteries or on bricks or tiles commonly sold by, and placed in walls or tiles commonly sold by, and placed in walls or walkways of, public schools and libraries for fundraising purposes. These latter sorts of inscriptions are intended to remain in place indefinitely, if not permanently. Nevertheless, they remain private speech and the government should not be permitted to selectively censor them no matter how long they remain in its power and physical control.”
Brief of the United States: “Statues and commemorative objects displayed in public places, parklands, and battlefields across the country help tell the story of the Nation’s history and heritage, and may convey important government messages. The constitutional rule adopted by the court of appeals would seriously erode the discretion that the government has always enjoyed to shape those messages as it sees fit by determining which monuments or objects to display, and thus potentially transform the content, character, and solemnity of such displays. For example, 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 Pioneer Park commemorating the September 11 attacks entitles it to erect a memorial to the terrorists who carried them out. There is no historical precedent for such a counter-intuitive regime, it finds no support in this Court’s cases, and our Constitution does not compel it.”
Brief of Alliance Defense Fund and Family Research Council: “What would prevent a local chapter of the Skinheads from gaining access for display of their Nazi flag next to the VFW memorial? Could not the local strip club erect in the public park a nearly-obscene statue celebrating sexually oriented businesses? Why not a monument to Al-Qaeda next to the Declaration of Independence replica at city hall? The right way to prevent such madness is for this Court to reverse the Tenth Circuit and affirm its own logical doctrine regarding the government’s accountability for, and responsible control and designation of, public fora.”
Brief of Summum: “The most basic of First Amendment rules is that in a traditional public forum like a public park, a city may not discriminate among speakers based on the content of their speech or the identity of the speaker. Certainly, the City could not use its ‘historical relevance’ or donor-related criteria to allow the Eagles access to a park ‘speakers’ corner’ to proclaim their understanding of the commandments handed down to Moses, while prohibiting Summum from speaking about its own version of those Commandments … . Application of these well-established First Amendment principles will not lead to the parade of horribles posited by the City because most monuments do constitute government speech, exempt from content- and viewpoint-neutrality obligations. The government is typically involved in commissioning and designing the displays, effectively controlling their content; and even when it is not, it still retains the option of adopting that content after the fact. Thus, the government remains free to express its views in the form of an unattended display without allowing room for competing views. All that is required is that the government take responsibility for its own message.”
Brief for American Jewish Congress: “Because existing law recognizes only two categories of speech in public fora — purely private and purely governmental speech — the parties litigated and the court below decided this case on that biaxial model. That model, however, does not adequately reflect the spectrum of ways in which private and government speech interact. In some cases — and in this one — government and private speakers speak simultaneously, expressing a common idea toward a common end. Each speaker seeks not only to speak, but to enjoy the benefit of speaking together with its partner. Such hybrid speech deserves to be treated as a separate category for purposes of determining an entitlement to access to public places … . In hybrid cases, while there is sufficient governmental action to subject its speech to constitutional limits, notably the Establishment Clause, the governmental aspects of the case do not overwhelm and obscure the concurrent private speech aspects.”
Brief of the Rutherford Institute: “Rather than yield to puerile, nonsensical shibboleths such as “the Statue of Liberty does not require a Statue of Tyranny” or facile fear-mongering about “cluttered junkyards of monuments” in the public square, this Court should instead respond with caution and careful deliberation. In resolving the difficult issues presented in this case, it is important that precious First Amendment freedoms in public places be protected. To determine what constitutes “government speech” and when — if indeed ever — so-called “government speech” may be restrained by the First Amendment, this Court should establish exacting standards when government grants access to favored private speech, but denies it to others. Before granting the blanket exemption that Pleasant Grove City seeks from First Amendment viewpoint discrimination proscriptions, it is important to require the City to demonstrate that it did in fact adopt the private messages displayed on the park monuments as its own and to justify that the basis for denying access to other conflicting messages was not viewpoint related.”
For neither party
Brief for the American Jewish Committee, Americans United for Separation of Church and State, the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty, and People for the American Way Foundation: “The panel below erred in holding that the items on display in Pioneer Park are private speech. The permanent monuments in the park are quintessential government speech, having been crafted or adopted by the City. And when government is the speaker, it is free to choose its message, subject to constitutional limitations on official action but not to free-speech scrutiny. The Tenth Circuit also erred by inviting the parties to litigate under the Free Speech Clause a case for which the Establishment Clause defines the scope of the rights in question. Under the latter Clause, the relevant constitutional strictures are clear: Whatever else the Establishment Clause might mandate, it straightforwardly forbids official discrimination against minority faiths like Summum … . While the record from the preliminary-injunction proceedings is understandably thin with respect to the object of Pleasant Grove’s professed display policy … there is more than a whiff of religious animus here. If Summum can prove at trial that Pleasant Grove had a discriminatory object in denying its request to display the Aphorisms in Pioneer Park, it should be entitled to some form of relief.”