Supreme Court Grants Review of Landmark First Amendment Case - ACLJ Preparing Oral Arguments

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Today were pleased with the Supreme Courts decision to review a lower court decision that could force local governments across the country either to dismantle a host of monuments, memorials, and other displays including long-standing patriotic and historical displays or else let all comers install privately owned monuments or displays, regardless of content.  The Supreme Court today granted our Petition for Writ of Certiorari in the case of Pleasant Grove City v. Summum (No. 07-665).

Representing Pleasant Grove in this case, were delighted that the Supreme Court agreed to take this critical case its exactly what we wanted.  The Supreme Court is faced with a dramatic opportunity:  preserve sound precedent involving the well-established distinction between government speech and private speech or permit a twisted interpretation of the Constitution to create havoc in cities and localities across America.  The lower court decision - if left unchecked - would ultimately force local governments to remove long-standing and well established patriotic, religious, and historical displays.  The lower court decision misses a key distinction between government speech and private speech.  The government has to be neutral toward private speech, but it does not have to be neutral in its own speech.  The Tenth Circuit confused this rule when it said private parties have a First Amendment right to put up the monuments of their choosing in a city park, unless the city takes away all other donated monuments.  It is our hope the Supreme Court steps in to correct this flawed reasoning.

In August 2007, the U.S. Court of Appeals for the Tenth Circuit split 6-6 over a request for the full appeals court to rehear two cases involving demands that the Utah cities of Pleasant Grove City and Duchesne City erect monuments containing the Seven Aphorisms of a group called Summum.  The federal appeals court had ruled in favor of Summum in both cases, saying the group could insist upon erecting its own Seven Aphorisms monument in the city parks because the cities already displayed monuments of the Ten Commandments which were donated decades ago.

In our petition asking the high court to take the case involving Pleasant Grove, we noted that the 10th Circuit decision conflicts with decisions of other circuits, badly distorts First Amendment jurisprudence, and will impose severe practical burdens on government entities . . .

In this case, the lower court made a serious error confusing government speech with private speech.  In our petition, we state:

When private speakers have the right to use government property to speak, there is a speech forum.  But when, as here, the donor cedes and the government accepts ownership and control of something from a private party, that something is no longer private property.  It becomes government property.  And if it is a message-bearing something, any communication thenceforth is government speech, not private speech.  No forum for private speech is created.

Unlike in private speech cases, accepting a monument for permanent display as the governments own property does not require accepting other monuments in the name of content or viewpoint-neutrality.  Nor does the governments acceptance of a donated monument require that a government park be turned into a cluttered junkyard of monuments contributed by all comers.  In short, accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny.

The appeals court threatens to wreak havoc upon governments at every level and their ability to control the permanent physical occupation of government land.

We urged the high court to take the case and contend that unless the lower court decision is overturned, cities and states will be forced to face a troubling choice remove long-standing monuments or permit any group to display any monument in public places.  Our brief notes that a host of federal, state, and local government bodies are now sitting targets for demands that they grant equal access to whatever comparable monuments a given group wishes to have installed, be it Summums Seven Aphorisms, an atheist groups Monument to Freethought, or Rev. Fred Phelpss denunciation of homosexual persons.

Our Petition for Writ of Certiorari in the case of Pleasant Grove City v. Summum is posted here.

The Supreme Court granted cert in our case, Pleasant Grove City v. Summum, and apparently is holding a companion case from Utah involving Duchesne City, Utah (Duchesne City v. Summum - No. 07-690).