555 U.S. 460 (2009), 07-665, Pleasant Grove City, Utah v. Summum

Docket Nº:07-665
Citation:555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853, 77 U.S.L.W. 4136
Party Name:PLEASANT GROVE CITY, UTAH, et al., Petitioners, v. SUMMUM
Case Date:February 25, 2009
Court:United States Supreme Court
 
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Page 460

555 U.S. 460 (2009)

129 S.Ct. 1125, 172 L.Ed.2d 853, 77 U.S.L.W. 4136

PLEASANT GROVE CITY, UTAH, et al., Petitioners,

v.

SUMMUM

No. 07-665

United States Supreme Court

February 25, 2009

Argued November 12, 2008

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

[129 S.Ct. 1126] Syllabus [*]

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, [129 S.Ct. 1127] 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. 1130-1138.

(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. 1130 -1132.(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, 115 S.Ct. 2510, 132 L.Ed.2d 700, and to select the views that it wants to express, see, e.g., Rust v. Sullivan, 500 U.S. 173, 194, 111 S.Ct. 1759, 114 L.Ed.2d 233. 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, 125 S.Ct. 2055, 161 L.Ed.2d 896. This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment

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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. South-worth, 529 U.S. 217, 235, 120 S.Ct. 1346, 146 L.Ed.2d 193. Pp. 1130 -1132.

(2)In contrast, government entities are strictly limited in their ability to regulate private speech in "traditional public for a." Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 87 L.Ed.2d 567. Reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794, 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, 105 S.Ct. 3439. Restrictions based on viewpoint are also prohibited. Carey v. Brown, 447 U.S. 455, 463, 100 S.Ct. 2286, 65 L.Ed.2d 263. 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, 105 S.Ct. 3439. 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, 103 S.Ct. 948, it may impose reasonable and viewpoint-neutral restrictions, see Good News Club v. Milford Central School, [129 S.Ct. 1128] 533 U.S. 98, 106-107, 121 S.Ct. 2093, 150 L.Ed.2d 151. Pp. 1132-1133.

(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. 1133-1134.

(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, 125 S.Ct. 2055. 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

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monuments in the Park, including the Ten Com­mandments monument; and it has now expressly set out selection criteria. P. 1134

(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. 1134-1136.

(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, 123 S.Ct. 2297, 156 L.Ed.2d 221. 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, 115 S.Ct. 2440, 132 L.Ed.2d 650, distinguished. Pp. 1136-1138.

483 F.3d 1044, reversed.

Page 463

Jay A. Sekulow, for Petitioners.

Daryl Joseffer, for United States as amicus curiae, by special leave of the Court, supporting the Petitioners.

Pamela Harris, for Respondent.

Thomas P. Monaghan, Francis J. Manion, Edward L. White III, Geoffrey R. Surtees, John P. Tuskey, Laura B. Hernandez, Erik M. Zimmerman, Virginia Beach, VA, Patricia A. Millett, Akin Clump Strauss Hauer & Feld, LLP, Washington, DC, Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Walter M. Weber, Carly, F. Gammill, Washington, DC, Vincent P. McCarthy, Ann-Louise Lohr McCarthy, Shannon D. Woodruff, Kristina J. Wenberg, Litchfield, GT, for Petitioners.

Brian M. Barnard, Salt Lake City, Utah, Walter Dellinger, Pamela Harris, Irving L. Gornstein, Shannon Pazur, Kathryn E. Tarbert, O'melveny & Myers LLP, Washington, D.C., Martin S. Lederman, Washington, D.C., for Respondent.

Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, [129 S.Ct. 1129]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.

OPINION

Alito, Justice

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This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the monument because a public park is a traditional public forum. We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the...

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