Opening Brief Filed in Supreme Court Monumental First Amendment Case

 

Yesterday in the Supreme Court of the United States we filed our opening brief, containing our written legal arguments, on behalf of a Utah city, in a case that could affect local governments across the country.  We brought to the Supreme Court an appeal from a decision that would have forced cities 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 announced on March 31, 2008, that it had granted our petition to hear the case.  Yesterdays filing represents the opening salvo in an exchange of written arguments. The case is Pleasant Grove City v. Summum (No. 07-665).  Jay Sekulow, Chief Counsel of the ACLJ, will present oral arguments to the high court on behalf of Pleasant Grove.

 

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.  Were 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.

 

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 to put up the Seven Aphorisms monument, Summum sued in federal court. We came to the defense of the city, and a federal district court in Utah refused to order the city to erect Summums monument. Summum appealed, and a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit ruled in favor of Summum, saying the group 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. We asked the full Tenth Circuit to rehear the case, but the court split 6-6, a tie vote that effectively denied the request.

 

We then took the case to the U.S. Supreme Court.

 

In our opening brief on behalf of Pleasant Grove, we said the 10th Circuit made several crucial errors in constitutional analysis. The First Amendment, we explained, does not require that a government park be turned into a cluttered junkyard of monuments contributed by all comers.

 

We focused our attention on the lower courts serious error confusing government speech with private speech: a citys selection of which items to display in a park like its selection of decorations for government buildings is government speech, and no private entity can claim a Me too! right of access for its own preferred displays.

 

That the items the government selects may have private origins does not mean that the private sources are the ones who are speaking through the selection process. For example, while The Great Gatsby is admittedly not government speech, the selection of that book for placement on a public librarys shelves is government speech. F. Scott Fitzgerald (were he still alive) could neither insist on the books inclusion . . . nor object to its removal from the shelves to make way for the latest Harry Potter book.

 

In short, the brief adds, accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny.

 

We contend that the rationale of the appeals courts decision threatens to wreak havoc upon governments at every level in their ability to control the permanent physical occupation of government land. The brief notes that a host of federal, state, and local government bodies would be, under the Tenth Circuits logic, sitting targets for demands that they cede piece after piece of government land to forced occupation, by any group, with whatever monuments that group wishes to have installed, be it Summums Seven Aphorisms, PETAs suffering circus elephant, or Rev. Fred Phelpss denunciation of homosexual persons.

 

Summums brief in response is due on August 15. The Supreme Court is expected to hear oral arguments in the case in November.   A decision would likely issue sometime in 2009.