February 2009 – Washington, D.C.

On February 25, 2009, the Supreme Court issued a decision in Pleasant Grove City v. Summum. Petitioner Pleasant Grove City, Utah, has a public park within the city limits which has eleven privately donated monuments that are permanent fixtures, including a Ten Commandments monument. The respondent requested permission to erect a monument containing the Seven Aphorisms of Summum. The City denied permission, stating monuments must relate directly to the City’s history, or be donated by groups with longstanding community ties. The respondent was unable to meet this criteria and brought suit claiming the City had violated the First Amendment’s Free Speech Clause. The district court denied the respondent’s request for a preliminary injunction, but was reversed by the Tenth Circuit Court of Appeals. The Tenth Circuit said it has already decided that the Ten Commandments were private, rather than government speech, and parks have been recognized as public forums. The court said that the City’s denial of permission to erect the monument was not likely to survive strict scrutiny and instructed the City to erect the monument. The Supreme Court reversed the Tenth Circuit, holding that the placement of a permanent monument in a public park was government speech and was, therefore, not subject to strict scrutiny. While government regulation of private speech is prohibited under the Free Speech Clause, a government entity is entitled to choose the views it wants to express and may use private assistance in delivering government messages provided the views and expression do not violate the Establishment Clause. The Court held that, in this case, the City has effectively controlled their messages by exercising final approval authority over their selection. 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.