WorldNetDaily.com - 'Statue of Tyranny' Case Advances; Attorneys Argue 10th Circuit Ruling Also Would Permit 'Hitler Memorial'

June 18, 2008
by WorldNetDaily

Could some wealthy private party force the U.S. to allow a "Statue of Tyranny" in New York harbor alongside the famed Statue of Liberty? Yes, unless the U.S. Supreme Court reverses a confused free speech decision from a split 10th U.S. Circuit Court of Appeals in Denver, according to a law firm advocating for constitutional rights.

"The court of appeals' approach would make the government's display of the Statue of Liberty the speech of France, not the United States, entitling others to erect counter-monuments," said a brief filed with the high court by the American Center for Law and Justice, which represents the city of Pleasant Grove, Utah, in the dispute.

"Likewise, the Vietnam, Korean, World War II, and upcoming Martin Luther King, Jr., monuments in the nation's capital would likely be deemed private speech, not government speech, entitling Summum and everyone else with a monument to occupy their own corner of the National Mall," the brief said.

The case arose from a demand by the group Summum to have its "Seven Aphorisms" monument erected near a Ten Commandments monument on display, among other monuments and memorials, in Pioneer Park in Pleasant Grove, Utah. When the city declined, Summum sued. The ACLJ came to the defense of the city, and a federal district court in Utah refused to order the city to erect Summum's monument. Then a three-judge panel at 10th Circuit U.S. Court of Appeals in Denver said Summum could insist upon erecting its own "Seven Aphorisms" monument because the city already displayed a monument of the Ten Commandments which was donated decades ago by the Fraternal Order of Eagles.

The ACLJ yesterday filed its opening brief on behalf of the city's rights in the case that could impact local, state and federal government decisions across the continent. The case essentially will decide, the ACLJ said, if cities will be faced with the choice of dismantling all monuments, memorials and other displays, "including long-standing patriotic and historical displays," or let "all comers install privately owned monuments or displays, regardless of content."

"The Supreme Court is faced with what we believe is an easy choice: 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," said Jay Sekulow, chief counsel of the ACLJ, who will present oral arguments to the high court on behalf of Pleasant Grove.

"We're hopeful the high court will correct a troubling decision that ultimately would force local governments to remove long-standing and well established patriotic, religious and historical displays," he said.

The ACLJ's brief says the First Amendment does not require that a government park be turned into a "cluttered junkyard of monuments contributed by all comers," but the 10th Circuit ruling made several crucial errors and failed to recognize that.

"First, the court below fundamentally misapprehended the distinction between government speech and private speech in this case," the brief said. "Second, the court below misidentified the relevant 'forum.' Third, the court erroneously held that city parks are traditional public fora for private, unattended, permanent monuments. Fourth, the lower court erred by holding that a city's acceptance of donated monuments creates a designated public forum for private speech through such monuments," the brief said.

The concept of allowing anything as a monument is "scary," Frank Manion, of the ACLJ, told WND earlier. "The Minutemen in Massachusetts? We need a Redcoat. A George Washington statue? Why not George the 3rd. A Holocaust memorial? How about a Hitler memorial?"

The brief describes Summum as a "corporate sole and a church" founded in 1975 with headquarters in Salt Lake City. The "organization" lauds the principles of "psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender," and promotes mummification of both people and pets.

The ACLJ said the Ten Commandments monuments are the real targets of the legal actions, because in many circumstances, cities or other governments likely would order such monuments removed, rather than order acceptance of others.

The ACLJ, which has worked on the case with the Thomas More Law Center, contends that the Constitution "does not empower private parties to force permanent displays into a park, crowding out the available physical space and trumping the government's own vision" for the parks.

"In the [related] Duchesne case, even an attorney for Summum admitted to the federal district court that its position could lead to bizarre results. Summum's attorneys told the court that if a city park is required to display monuments contributed by all comers, the city park may well end up looking like a cemetery with many, many monuments," the ACLJ said.

Under Summum's theology, adherents believe the first set of stone tablets Moses received on Mt. Sinai contained its seven aphorisms, "made by a divine being."

"The first set of stone tablets was not inscribed with the Ten Commandments. Rather, they contained aphorisms of a Higher Law that held very profound and deep meanings," the organization's website says.

The group believes Moses "had been initiated into an understanding of the inner, esoteric source" of those aphorisms, but when he "observed the immature behavior and attitude of the Israelites" he realized they could not understand them too.

"So Moses destroyed the stone tables and revealed the aphorisms to a select few."

The ACLJ warned earlier: "In 1886, the United States government accepted from the people of France a donation of a 151-foot tall colossal statue called 'Liberty Enlightening the World.' Since that time, the government has displayed this Statue of Liberty in a traditional public forum in New York Harbor.

"For years, demonstrators with messages to deliver have assembled, handed out literature and otherwise expressed themselves at the site subject to certain regulations of the time, place and manner of their expression. But it probably never occurred to any such demonstrators that they enjoyed a constitutional right to insist that the government allow them to erect their own 151-foot tall statue or monument setting forth an alternative message to that conveyed by Lady Liberty," the law firm warned.

"Under the flawed private speech jurisprudence of the panel in this case there exists no principled basis upon which the government could turn down for permanent display on Liberty Island a donation of a 'Statue of Tyranny,' or, perhaps, a new copper colossus bearing the message 'Pay No Attention to the Lady With the Torch the Golden Door is Now Closed,'" the legal briefs argued.

The brief notes "while 'The Great Gatsby' is admittedly not a government speech, the selection of that book for placement on a public library's shelves is government speech. F. Scott Fitzgerald (were he still alive) could neither insist on the book's inclusion nor object to its removal from the shelves to make way for the latest Harry Potter book."

Unless overturned, the 10th Circuit ruling "threatens to wreak havoc upon governments at every level in their ability to control the permanent physical occupation of government land."