Anthony J. Sebok

Pleasant Grove City v. Summum: The Supreme Court's Puzzling, Fascinating New Free Speech Decision

By MARCI A. HAMILTON


Thursday, March 5, 2009

Recently, the Supreme Court decided an interesting case that will confound Free Speech and Establishment Clause jurisprudence for years to come. Pleasant Grove City v. Summum presented the Court with a case at the intersection of three dubious doctrines: the government speech doctrine, the public forum doctrine, and the doctrine that uses the Free Speech Clause to suppress Establishment Clause values. In this column, I'll analyze and critique the Court's decision.

The Facts, the Summum Religious Group's Arguments, and the Ruling by the U.S. Court of Appeals for the Tenth Circuit

The facts of the case are straightforward: The Summum religious group offered to donate a monument to its beliefs, The Seven Aphorisms, to be placed in a public park in Pleasant Grove City, Utah. The monument was crafted to appear as weighty and as large as the Ten Commandments monument that was already in place at the park, which had been donated by the Fraternal Order of the Eagles (the same group that had also donated the Ten Commandments monument the Court earlier upheld in Van Orden v. Perry).

The Summum group freighted its entire argument on a free speech theory. In particular, there were three pegs in the doctrine on which they sought to hang their hat. First, there was the rule against viewpoint discrimination. The group argued that because the City had accepted the Ten Commandments monument, it also had to accept the Summum monument; if it did not, it was preferring one view above another. Second, the group invoked the "public forum doctrine," asserting that because public parks have been deemed public fora since time immemorial, the City could not refuse the monument. Governments must have an extremely good reason to reject any speech in a longstanding public forum, and the Summum group said there was no good reason to do so here. Finally, the group invoked Rosenberger v. University of Virginia, in which the Court had invoked the Free Speech Clause of the First Amendment to hold that a university may not refuse to fund a religious student organization (even if its primary activity is worship and proselytizing) if the university provides funds for other student groups.

The U.S. Court of Appeals for the Tenth Circuit ruled that the public park was a public forum and, therefore, the City's decision and reasons were subject to strict scrutiny – the most demanding standard of review a court can apply in a constitutional case. The City claimed its decision to reject Summum's donation of the monument was driven by two criteria: (1) the monument had to have some relationship to the history of the City; and (2) private donations would only be accepted from those with close ties to the community. The City lost because the Tenth Circuit concluded that it was unlikely the City's reasons could survive strict scrutiny.

The Supreme Court's Ruling, and the Role a Strong Set of Amicus Briefs May Well Have Played

The Supreme Court's majority opinion was written by Justice Alito for eight members of the Court; Justice Souter concurred only in the judgment and as I explain below, other Justices felt the need to write concurrences as well. The Court reversed the Tenth Circuit's ruling, and ruled instead that, for purposes of the Summum monument, the park was not a public forum; that the speech was not speech protected under the First Amendment because a permanent monument constitutes "government speech"; and that permanent memorials are in a category distinct from transient speakers for purposes of free speech analysis. The bottom line: Summum lost; Pleasant Grove's rejection of its monument has been deemed constitutionally acceptable; and the three doctrines at play are muddier than ever before.

Setting aside doctrine for a moment, it does appear that the case was carried to a large degree by the effective amicus briefs filed by the International Municipal Lawyers Association, the City of New York, and the American Legion. Justice Alito's majority opinion cites these briefs more than once, and the opinion is driven by the facts that they put on the table. These amici argued, unassailably, that governments accept privately funded monuments all the time and thus, this case had the capacity to affect thousands of communities, states, and even the federal government. The fact is that there are public monuments everywhere, and to create a constitutional right to impose one's own monument on a public space would be to create havoc at all levels of governments. Imagine Summum approaching the federal government and suggesting its monument must be placed on the Mall, right in front of the Washington Monument. Then imagine the plethora of other monuments that would then line the Mall if Summum's request were to be constitutionally required to be granted.

These amici had a compelling point that needed to be made. Nevertheless, it is hard to find the right constitutional doctrine to explain this gut-level bottom line. That is why every member of the Court agreed on the result, but there were three concurrences (by Justices Stevens, Scalia, and Breyer) and one concurrence in the judgment (by Justice Souter), with each concurrence talking about a different aspect of free speech (or Establishment Clause) doctrine.

The Justices' Analysis Regarding the Government Speech Doctrine

Before delving into the free speech doctrines at play in Summum, it is worthwhile to point out that the obvious First Amendment clause that is lurking but not central in this case was the Establishment Clause. The most persuasive argument that might have been brought was that the City was really preferring one religious group over another by accepting the Ten Commandments monument but rejecting the Summum monument. Forget viewpoint discrimination for a moment, which is where the Summum litigants placed all of their bets; government may not prefer one religion over another. Justices Scalia and Thomas found this concern negligible, telling lower courts and governments that Pleasant Grove need not worry whatsoever about an Establishment Clause challenge. Setting aside the irony and borderline inappropriateness in two Justices announcing that a future case on a separate theory is futile and already decided, they have sent a troubling signal that they are unlikely to invalidate the Ten Commandments in any setting whatsoever, even when there is an argument (unlike in Van Orden v. Perry) that they were erected in a public park in preference over another religion.

Let's start with the government speech doctrine – which recognizes the government power to speak, and to control those who speak on its behalf. In the Summum case, Justice Stevens, joined by Justice Ginsburg, cautions that the government speech doctrine is "newly minted" and expresses doubt as to whether he can support it, yet in this case, concedes that he must agree with the majority. The doctrine was primarily created by the Court's opinion in Rust v. Sullivan, where the Court upheld the federal government's prohibition on doctors discussing abortion with patients while also accepting federal medical dollars. As Rust itself shows, the doctrine is potentially dangerous to the marketplace of ideas, because it takes the First Amendment out of the picture; generally, at least before Rust, it had been thought that the First Amendment forbids the government from preferring one viewpoint over another. The Summum opinion purports to allay such fears by stating that elected officials are publicly accountable and thus, if their message is not acceptable to the public, they will be unseated. But why is that comforting? Doesn't that mean that the First Amendment has been shelved in a way that encourages majorities to suppress viewpoints with which they disagree?

Moreover, the Summum opinion's discussion of monuments in general is awfully abstract. On one hand, the Court labels "permanent monuments" as government speech but on the other hand, it moves the focus from the intent of the government, to the reception of the message by individuals. Justice Alito goes out of his way (in fact, way out of his way when he quotes the entirety of John Lennon's song "Imagine" for the purpose of discussing the Imagine monument in Central Park, New York) to make the point that viewers often look at public monuments and take away different meanings from them. It sounds as though the government is incapable of delivering a coherent message, which undercuts whatever justification there is for government speech in the first place.

Part of what is going on is that the Court must somehow respond to those who make the obvious argument that accepting the Ten Commandments and rejecting Summum is viewpoint discrimination. When the government speaks, it gets to engage in viewpoint discrimination – at least, in some contexts. It's obvious, for instance, that President Obama doesn't have to include in his speeches to the public the views of his opponents, thus voicing the very views with which he disagrees. But that isn't this case. When the government is picking and choosing between religious viewpoints, the situation is more fraught and the answer is less obvious. So how might the Court allay the reader's concerns? Point out that even if the record in this case did not show viewpoint discrimination, the free speech concern was not forever absent simply by pasting the label of "government speech" on a monument.

The Public Forum Doctrine: Why It Raised Problems for the Court

Unfortunately, the trouble with the Court's opinion doesn't stop there. There is no more maligned First Amendment doctrine than the public forum doctrine, but that doctrine is still standing, and seemed to some to be directly applicable in the Summum case. The doctrine holds that there are certain locations, like public parks, that have historically been safe havens for the freedom of speech and must remain so. However, in virtually every other location, the government can designate whether the forum is open for speech, for certain categories of speech, or closed to speech. If the doctrine seems circular, that is because it is: A place is a public forum simply because it is (and has long been) a public forum, and a non-public or a limited public forum because the government says so.

In this case, the Court had a problem if it wanted to permit the City to reject the Summum monument, because public parks are solidly within the pantheon of historic free speech locations, and there is no question that the speech here is being offered, authored, and paid for by a private entity, even if that entity is petitioning the government so that the speech can occur. The Tenth Circuit's reasoning was hardly eccentric.

The most effective way to avoid this doctrinal barrier was to say that for this purpose the park was not a public forum – or junk the public forum doctrine entirely. Given an oral argument during which more than one Justice confessed to not understanding the public forum doctrine in the first place, this might have been a good place to jettison the framework altogether rather than carving out an exception for government speech. But that is not at all what the Court did in the Summum opinion.

The Rosenberger Decision: Seemingly in Conflict with the New Summum Decision

Finally, there was yet another line of doctrine that appeared relevant to the Summum case. One of the most troubling Establishment Clause cases ever to be decided was the Court's 5-4 decision in Rosenberger v. University of Virginia, which concluded that the government must pay to support proselytizing groups whose sole activity is religious, simply because the government already has chosen to provide funds for other groups. The opinion washed away any notion that a university could limit funding to groups pursuing activities in line with its educational goals. In these difficult economic times, the opinion appears even more problematic: Universities should not have to dilute the money available to their chess teams, French clubs, or even their political activity groups, each of which contributes in distinctive ways to increased intellectual development, by funding groups that are frankly and exclusively religious.

The free speech reasoning in Rosenberger, though, is at odds with the reasoning of the Summum decision. Why does the Free Speech Clause protect funding for a religious group to engage in proselytizing, yet fail to protect a group that offers a monument to be placed in a public park, which offers views at odds or at least different form the mainstream Ten Commandments? In my view, the right constitutional answer is that the religious group should have won in neither situation. But with Rosenberger on the books, it is very hard to defend the Court's reasoning in the Summum case. Calling the government decision here "government speech" entitled to complete deference, while at the same time treating the decision in Rosenberger regarding what to fund for educational purposes as subject to no deference at all, is incoherent. And the results in these two cases do force one to wonder if we are dealing with some covert willingness by the Court to clear the way for certain, favored religious messages and not for others.

In sum, no First Amendment doctrine comes out of this decision improved, or even unscathed. To say it was the correct decision on practical grounds, which the amicus briefs proved was surely that case, does not mean that it will live on in the Supreme Court's jurisprudence without having a very troubling impact upon the way future cases may be decided.



Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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