Justices Rule Sect Cannot Force Placing of Monument – Justice Alito: “First Amendment regulates private speech, not government speech.”

 

 


 
 

 February 25, 2009

 

WASHINGTON — The Supreme Court ruled unanimously on Wednesday, in one of the most closely watched free speech decisions in years, that a tiny religious sect could not force a Utah city to let it erect a monument to its faith in a public park.

 

In a 9-0 decision announced by Justice Samuel Alito, the Supreme Court concluded: “In sum, we hold that the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech. As a result, the City’s decision is not subject to the Free Speech Clause, and the Court of Appeals erred in holding otherwise. We therefore reverse.”
Skip to next paragraph The fact that there is already a Ten Commandments monument in the park in Pleasant Grove City does not mean that city officials must also allow the religious group called Summum to place a monument there to the Seven Aphorisms of its faith, the justices ruled.

 

We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court.

 

The case has been of keen interest to local and state officials across the country for several reasons. Not least is that officials have been concerned about what kinds of markers and monuments, if any, they might be forced to allow in public areas if Summum prevailed.

 

And while the case of Pleasant Grove City v. Summum, No. 07-665, involves religion, the real issue was free speech, not the separation of church and state, both of which are addressed in the First Amendment to the Constitution.

 

The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable.

 

But Justice Samuel A. Alito Jr., writing for the court, said the arguments embraced by Summum were not really the right way to look at the case. The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.

“The Free Speech Clause restricts government regulation of private speech,” Justice Alito noted, referring to a clause in the First Amendment. “It does not regulate government speech.”

 

While a government entity is quite limited in its ability to regulate or restrict private speech in traditional public forums, like parks, the government entity “is entitled to say what it wishes,” Justice Alito wrote, citing earlier Supreme Court rulings. If the people do not like what their government officials say or stand for, they can vote them out of office, he wrote.

 

Not that government, through its officials, can say whatever it wants whenever it wants, Justice Alito observed. For one thing, government expressions must not violate the First Amendment’s ban on endorsement of a particular religion. Moreover, what government officials say may be limited “by law, regulation, or practice.”

 

“And of course, a government entity is ultimately ‘accountable to the electorate and the political process for its advocacy,’ ” Justice Alito wrote, quoting from an earlier Supreme Court decision.

 

Justice Stephen G. Breyer emphasized in a concurring opinion that, while the Summum members have been thwarted in their bid to have a monument erected, “the city has not closed off its parks to speech; no one claims that the city prevents Summum’s members from engaging in speech in a form more transient that a permanent monument.” In other words, Summum members, like other citizens, can presumably hand out leaflets or stand on soapboxes and hold forth on the issues of the day.

 

In its ruling on Wednesday, the high court overturned a decision by the United States Court of Appeals for the 10th Circuit, which had sided with Summum and told the city to allow the group’s monument to be erected at once.

 

The Summum group was founded in 1975, and contains elements of Egyptian faiths and Gnostic Christianity. The word Summum derives from Latin, and refers to the sum of all creation.

 

The issues raised by the Summum lawsuit have been of interest to legal scholars as well as government officials. “No prior decision of this court has addressed the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments for installation in a public park,” Justice Alito noted.


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