Nahmod Law

Pleasant Grove City v. Summum: Justice Souter’s Last Government Speech Opinion

In Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), the Court, in an opinion by Justice Alito, held that a city’s rejection of a privately donated monument offered by the Summum sect for permanent display in a public park did not violate the First Amendment despite the city’s acceptance decades earlier of a privately donated Ten Commandments monument in the same public park. The city’s rejection of the Summum monument was not impermissible viewpoint discrimination because its previous acceptance of the Ten Commandments monument was government speech.

The Government Speech Function of Monuments

The Court looked to tradition and history to determine that the Ten Commandments monument was indeed 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.” 129 S. Ct. at 1132-33.

Then, contending that a reasonable observer would know that a monument on government land was necessarily representative of the government’s message, the Court analogized public property owners to other property owners:

“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.”

Government Speech Need Not Communicate a Particular Message

Finally, the Court observed that a monument could be government speech even if it did not communicate a particular message. It said:

“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. Or, to take another example, what is ‘the message’ of the ‘large bronze statue displaying the word “peace” in many world languages’ that is displayed in Fayetteville, Arkansas?”

129 S.Ct. at 1135 (citations omitted).

Justice Souter’s Concurrence

In what would be his last Supreme Court opinion dealing with government speech, Justice Souter concurred in the judgment in Summum. He agreed with the Court that government need not formally declare that particular expression was its own. But he was reluctant to maintain, as the Court apparently did, that monuments were categorically government speech. In his view, there were situations, such as sectarian identifications in Arlington Cemetery, where government acceptance and maintenance of monuments on public space would not constitute government speech. In addition, because the government speech doctrine was “recently minted” the Court should move slowly in this area.

Furthermore, the government speech doctrine could interact in unexpected ways with the Establishment Clause. Justice Souter considered a hypothetical situation in which government erected a religiously themed monument and, to avoid violating the Establishment Clause, quickly surrounded it with other monuments. Though this would dilute the religious character of the initial monument, it would at the same time create so many messages that it was less obvious that government was speaking. In this situation, applying government speech doctrine could potentially allow a government to discriminate among religious groups by favoring some over others, thereby evading the Establishment Clause:

“[T]he government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause’s stricture against discriminating among religious groups or sects. Under this view of the relationship between the two doctrines, it would be easy for a government to favor some private religious speakers over others by the choice of monuments to accept.” 129 S. Ct. at 1142.

Consequently, rather than adopting a rule that monuments accepted by government always constitute government speech, Justice Souter yet again suggested applying the reasonable observer test on a case-by-case basis when making the determination that it was the government speaking and communicating a particular message. Under this test, the question was “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.” In Summum, according to Justice Souter, the Ten Commandments monument passed this test and thereby constituted government speech: it was “an expression of a government’s position on the moral and religious issues raised by the subject of the monument.”

Next: Last Post on Government Speech and Justice Souter

The next (and last) post on government speech and Justice Souter will contain some concluding observations.