Permanent monuments in public parks are not subject to the free speech analysis that applies to speeches and leaflets in public forums, the court ruled. Instead, Justice Samuel A. Alito Jr. wrote for eight justices, such monuments are “best viewed as a form of government speech.”
Since the government is free to say what it likes, Justice Alito said, the Summum church’s right to free speech under the First Amendment was not violated by the city’s rejection of its monument.
The decision was unanimous but fractured. In four concurring opinions, six justices set out sharply contrasting views about the decision’s scope and consequences.
Ten Commandments cases are typically litigated under the clause of the First Amendment prohibiting government establishment of religion. But the case decided Wednesday, Pleasant Grove City v. Summum, No. 07-665, was brought under a different clause of the amendment, the one protecting free speech.
The concurrences offered varying views about whether the decision foreclosed or left open a separate challenge to the Ten Commandments monument under the Establishment Clause.
In addition, several justices expressed concern that the court was moving too fast in designating some kinds of expression as government speech immunized from free-speech scrutiny.
The Summum church had sought to donate a monument setting out its Seven Aphorisms to a public park in Pleasant Grove City, Utah. The park already included 15 objects, most of them donated, including a granary, a well and the Ten Commandments monument, which was given to the city by the Fraternal Order of Eagles in 1971.
The city declined Summum’s offer, saying the existing monuments either related to the city’s history or had been donated by groups with longstanding ties to it.
The church sued, and the federal appeals court in Denver ruled that the First Amendment’s free speech protections required the city to display the Summum monument. The appeals court said that the Ten Commandments monument was private speech and that the city park was a public forum. That meant, the court said, that the city was not free to discriminate among speakers.
Justice Alito said the appeals court had gotten it backward. “Permanent monuments on public property,” he wrote, “typically represent government speech.” This is so, he said, whether or not the monuments were donated and whether or not the government expressly adopted the message conveyed by the monuments.
In a passage reminiscent of a graduate-school seminar in literary theory, Justice Alito went on to say that “monuments convey meaning” in many ways.
He used the example of the mosaic of the word “Imagine” in New York City’s Central Park, donated in memory of John Lennon, and he quoted the lyrics to that Lennon song in a long footnote.
“Some observers,” Justice Alito wrote, “may ‘imagine’ the musical contributions that John Lennon would have made if he had not been killed.” Others, he continued, “may ‘imagine’ a world without religion, countries, possessions, greed or hunger.”
The meaning of a monument may change with context, he said, giving the example of the addition of a statue of three soldiers near the Vietnam Veterans Memorial in Washington that “many believed changed the overall effect of the memorial.”
And it may change with time. The Statute of Liberty, Justice Alito said, once expressed republican solidarity between France and the United States and only later “came to be viewed as a beacon welcoming immigrants.”
These arguments seemed presented in aid of an unspoken premise: that a Ten Commandments monument can be government speech without conveying a religious message. But Justice Alito mentioned the Establishment Clause only in passing and only to say that “government speech must comport with” it.
In a concurring opinion, Justice Antonin Scalia, joined by Justice Clarence Thomas, said the decision on Wednesday should foreclose all challenges to the Ten Commandments monument. “The city ought not fear that today’s victory propelled it from the Free Speech Clause frying pan in to the Establishment Clause fire,” Justice Scalia wrote.
The monument in question, Justice Scalia continued, is virtually identical to one the court allowed to be displayed on the grounds of the Texas Capitol. “The city can safely exhale,” he wrote.
Justice David H. Souter, who joined the court’s decision but did not adopt Justice Alito’s reasoning, was not so sure. If the Ten Commandments monument is now understood to be government speech, he said, “the specter of violating the Establishment Clause will behoove” the city “to take care to avoid the appearance of a flat-out establishment of religion.”
One solution, Justice Souter said, is “safety in numbers, and it will be in the interest of a careful government to accept other monuments.”
Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, also concurred, writing to say that Justice Alito’s opinion should not be read to signal an expansion of “the recently minted government speech doctrine to uphold government action.” The decisions in this area, Justice Stevens wrote, “have been few and, in my view, of doubtful merit.”
Justice Stephen G. Breyer, in his own concurrence, also expressed concern about the court’s direction. Free speech doctrine, he said, should not be “a jurisprudence of labels,” and “the ‘government speech’ doctrine is a rule of thumb, not a rigid category.”