Since the Court agreed that certain Ten Commandment statues were permissable in municipal parks, it was only a matter of time for that First Amendment issue to be tested. Oddly enough, the Court choose to testfire a rather new legal theory: government speech doctrine.
In Pleasant Grove City, Utah et al. v. Summum, a small municipality has a park with eleven privately-donated monuments, including a 10-Commandments monument. A religious group, which isn’t even based in that city, wanted to donate its own monument with the “Seven Aphorisms of Summum.”
To the uninitiated, this Summum group believes Moses first got seven aphorisms from God but they were not understood; Moses went back to the Mount and returned with the more-easily understood Ten Commandments.
The City declined the offer, claiming the proposed monument did not relate to the history of Pleasant Grove nor was it donated by a group with longstanding ties to the community. Can the City do that, effectively choosing one religious speech over another?
Quick First Amendment primer: If the government engages in its own expressive conduct, there is no Free Speech application; that clause restricts government regulation but does not regulate the government’s own speech. The government, however, is restricted by the Establishment Clause and is accountable to the voters.
The Court noted that permanent monuments on public property typically represents government speech, regardless whether the monument is state sponsored or privately donated. Historically, government has exercised selectivity in picking and choosing its “monumental” speech.
This is the basis for the government speech doctrine, which protects government when it selectively picks and chooses it monuments. It was acknowledged that parks likely can only accomodate a limited number of permanent monuments. The message need not be singular and, instead, could change over time or even be ironic. It is intrinsic that the government NOT be viewpoint neutral else it would have to brace itself for an influx of clutter from multiple, meaningless monuments. Again, the government must still abide by the Establishment Clause and the ire of the voters.
While the majority opinion spins its wheels for is 11 pages, it is Justice Scalia and Thomas who cut to the nub of the case. The City was a bit fearful of associating itself too much with the Ten Commandments, lest it trigger an Establishment Clause challenge. Summum, sensing that, exploited that hesistation and argued that its proposed monument was not “government speech” since Pleasant Grove had not embraced the messgage of the competing monument. Thus, Summum claimed that the City could not take advantage of the government speech doctrine since the City had distanced itself somewhat from the Ten Commandments monument. Scalia and Thomas offered in dicta to avoid the issue coming back before the court that there would not be an Establishment Clause violation under these facts.
The Court is clearly uneasy with the (new) government speech doctrine, hence one majority opinion with FOUR concurrences. In fact, the Justices stopped short of saying that the doctrine was outcome oriented. It may take years but it will be interested to see this doctrine tested by more complicated fact patterns.
QUESTION: on the sidewalk along U.S. One, outside of the Lake Worth City Hall, is a short brick wall with the names of local houses of worship. Is that protected government speech or an Establishment Clause violation?