Pleasant Grove City v. Summum
555 U.S. 460 (2009)

Annotate this Case

SYLLABUS
OCTOBER TERM, 2008
PLEASANT GROVE CITY V. SUMMUM


SUPREME COURT OF THE UNITED STATES

PLEASANT GROVE CITY, UTAH, et al. v. SUMMUM

certiorari to the united states court of appeals for the tenth circuit

No. 07–665. Argued November 12, 2008—Decided February 25, 2009

Pioneer Park (Park), a public park in petitioner Pleasant Grove City (City), has at least 11 permanent, privately donated displays, including a Ten Commandments monument. In rejecting the request of respondent Summum, a religious organization, to erect a monument containing the Seven Aphorisms of Summum, the City explained that it limited Park monuments to those either directly related to the City’s history or donated by groups with longstanding community ties. After the City put that policy and other criteria into writing, respondent renewed its request, but did not describe the monument’s historical significance or respondent’s connection to the community. The City rejected the request, and respondent filed suit, claiming that the City and petitioner officials had violated the First Amendment’s Free Speech Clause by accepting the Ten Commandments monument but rejecting respondent’s proposed monument. The District Court denied respondent’s preliminary injunction request, but the Tenth Circuit reversed. Noting that it had previously found the Ten Commandments monument to be private rather than government speech and that public parks have traditionally been regarded as public forums, the court held that, because the exclusion of the monument was unlikely to survive strict scrutiny, the City was required to erect it immediately.

Held: The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. Pp. 4–18.

   (a) Because that Clause restricts government regulation of private speech but not government speech, whether petitioners were engaging in their own expressive conduct or providing a forum for private speech determines which precedents govern here. Pp. 4–7.

      (1) A government entity “is entitled to say what it wishes,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833, and to select the views that it wants to express, see, e.g., Rust v. Sullivan, 500 U. S. 173, 194. It may exercise this same freedom when it receives private assistance for the purpose of delivering a government-controlled message. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 562. This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause. In addition, public officials’ involvement in advocacy may be limited by law, regulation, or practice; and a government entity is ultimately “accountable to the electorate and the political process for its advocacy,” Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235. Pp. 4–6.

      (2) In contrast, government entities are strictly limited in their ability to regulate private speech in “traditional public fora.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800. Reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45, but content-based restrictions must satisfy strict scrutiny, i.e., they must be narrowly tailored to serve a compelling government interest, see Cornelius, supra, at 800. Restrictions based on viewpoint are also prohibited. Carey v. Brown, 447 U. S. 455, 463. Government restrictions on speech in a “designated public forum” are subject to the same strict scrutiny as restrictions in a traditional public forum. Cornelius, supra, at 800. And where government creates a forum that is limited to use by certain groups or dedicated to the discussion of certain subjects, Perry Ed. Assn., supra, at 46, n. 7, it may impose reasonable and viewpoint-neutral restrictions, see Good News Club v. Milford Central School, 533 U. S. 98, 106–107. Pp. 6–7.

   (b) Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Thus, a government-commissioned and government-financed monument placed on public land constitutes government speech. So, too, are privately financed and donated monuments that the government accepts for public display on government land. While government entities regularly accept privately funded or donated monuments, their general practice has been one of selective receptivity. Because city parks play an important role in defining the identity that a city projects to its residents and the outside world, cities take care in accepting donated monuments, selecting those that portray what the government decisionmakers view as appropriate for the place in question, based on esthetics, history, and local culture. The accepted monuments are meant to convey and have the effect of conveying a government message and thus constitute government speech. Pp. 7–10.

   (c) Here, the Park’s monuments clearly represent government speech. Although many were donated in completed form by private entities, the City has “effectively controlled” their messages by exercising “final approval authority” over their selection. Johanns, supra, at 560–561. The City has selected monuments that present the image that the City wishes to project to Park visitors; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument; and it has now expressly set out selection criteria. P. 10.

   (d) Respondent’s legitimate concern that the government speech doctrine not be used as a subterfuge for favoring certain viewpoints does not mean that a government entity should be required to embrace publicly a privately donated monument’s “message” in order to escape Free Speech Clause restrictions. A city engages in expressive conduct by accepting and displaying a privately donated monument, but it does not necessarily endorse the specific meaning that any particular donor sees in the monument. A government’s message may be altered by the subsequent addition of other monuments in the same vicinity. It may also change over time. Pp. 10–15.

   (e) “[P]ublic forum principles … are out of place in the context of this case.” United States v. American Library Assn., Inc., 539 U. S. 194, 205. The forum doctrine applies where a government property or program is capable of accommodating a large number of public speakers without defeating the essential function of the land or program, but public parks can accommodate only a limited number of permanent monuments. If governments must maintain viewpoint neutrality in selecting donated monuments, they must either prepare for cluttered parks or face pressure to remove longstanding and cherished monuments. Were public parks considered traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations. And if forum analysis would lead almost inexorably to closing of the forum, forum analysis is out of place. Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, distinguished. Pp. 15–18.

483 F. 3d 1044, reversed.

   Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Breyer, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment.

Primary Holding
Placing a monument in a public park is government speech, so it is not controlled by the First Amendment.
Facts
Pioneer Park in Pleasant Grove City contained a monument to the Ten Commandments among its 11 permanent, privately donated displays. Summum asked the City to build a monument containing the Seven Aphorisms of Summum, which were central to its religion, in the same park. It would be comparable in appearance to the Ten Commandments monument. When the city refused to construct this monument, Summum sued it for violating the First Amendment because it had permitted a Ten Commandments monument but not the Seven Aphorisms monument. The lower courts ruled that a public park is a public forum under First Amendment doctrines, so the City was required to accept the Seven Aphorisms monument.

Opinions

Majority

  • Samuel A. Alito, Jr. (Author)
  • John G. Roberts, Jr.
  • John Paul Stevens
  • Antonin Scalia
  • Anthony M. Kennedy
  • Clarence Thomas
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

The First Amendment does not place restrictions on government speech, and the government may use its free speech rights when it receives private assistance for the purpose of disseminating a message that is controlled by the government. However, the government may not exercise its free speech rights in a way that violates the Establishment Clause or other laws or regulations. The political process is used to hold government actors accountable for their speech.

Private speech in a public forum may be subject to very few restrictions, which are mostly limited to time, place, and manner rules. Any content-based restrictions on this speech must meet the strict scrutiny standard of review, so they must be narrowly tailored to a compelling government interest. Permanent monuments on public property are more properly classified as government speech, though, since this is their traditional function. Even if a monument is privately financed and donated, it becomes government speech if it becomes a public display, just as if it had been commissioned and financed by the government. This is because governments have a selective process in determining which of these privately donated monuments will be displayed, and city parks play a critical role in defining a city's identity.

These monuments were government speech because the City maintained final approval authority over them and owned most of the monuments in the Park. Future proposed monuments were subject to selection criteria specifically defined by the City. While defining a certain type of expression as government speech should not allow the government to favor certain viewpoints over others, the government is not required by the First Amendment to publicly endorse any message conveyed by a privately donated monument. Only a finite number of monuments may be displayed in any given park, and it is difficult for governments to preserve viewpoint neutrality by incorporating all possible viewpoints unless parks are either crowded with monuments, or older monuments are removed.

Broadly applying First Amendment principles in this context would require cities to accept or refuse all privately donated monuments, which would not be a practice result. As a result, the traditional forum analysis should not be applied in this situation because it likely would lead to the government closing the forum.

Concurrence

  • John Paul Stevens (Author)
  • Ruth Bader Ginsburg

The majority properly limits the scope of the government speech doctrine, which has questionable origins and should be applied only to the extent that it does not conflict with other constitutional doctrines. The case could have reached the same outcome by treating the acceptance of a monument as an implicit government endorsement of its message.

Concurrence

  • David H. Souter (Author)

The government speech doctrine should apply only when a reasonable and fully informed observer would identify the speech as government speech rather than private speech that the government permits in a public forum. Not all public monuments are necessarily government speech. A similar standard should be used to the Establishment Clause analysis that determines whether the government is endorsing religion. Clearly, some monuments on public land convey religious messages that do not conform with the government's views. Using the observer test in this instance leads to the same result that the majority reached, however.

Concurrence

  • Antonin Scalia (Author)
  • Clarence Thomas

Concurrence

  • Stephen G. Breyer (Author)

Case Commentary

Some of the opinions in this decision suggested that the organization could have brought a claim against the placement of the Ten Commandments monument based on the same constitutional argument. But requiring a city to affirmatively build a monument cannot be required under the First Amendment.

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