Justices will hear free speech dispute over religious monuments (March 31, 2008)

The Supreme Court agreed to step into another high-profile dispute involving the Ten Commandments when it accepted a case that turns on whether a private organization can donate a monument for display in a public park.

In September 2003, a little-known religious group called Summum asked the city of Pleasant Grove, Utah, to place a monument of its beliefs in a municipal park. The "Seven Aphorisms of Summum" monument was to be placed alongside a similar statue of the Ten Commandments, which was donated by the Fraternal Order of Eagles more than 30 years ago.

The city denied the request, contending that park monuments represent government speech and that it therefore could reject a monument from a potential donor. Criticizing the rejection as viewpoint discrimination, the religious group filed suit in the U.S. District Court for the District of Utah in July 2005.

The district court denied the group’s request for a preliminary injunction that would require the city to permit the display of the monument. In April 2007, however, a three-judge panel on the 10th U.S. Circuit Court of Appeals in Denver reversed, holding that the city must immediately erect and display the monument. And in August, the full court split evenly and decided not to rehear the case.

“The city’s speculative harm cannot outweigh a First Amendment injury, especially because Summum has established a substantial likelihood of success on the merits,” the panel wrote.

In asking the Supreme Court to accept the case, the city argued that the ruling goes against well-established precedent that the government has to be neutral toward private speech, but it does not have to be neutral in its own speech.

"The decision below conflicts with decisions in the Second, Third, Sixth, Seventh, Eighth, and D.C. Circuits," the brief states. "Moreover, the Tenth Circuit's ruling creates enormous practical problems."

Various groups, including the American Legion, nine states and Puerto Rico, backed the city by writing friend-of-the-court briefs, encouraging the justices to take the case.

"The Tenth Circuit’s decision ignores these fundamental principles of government speech,” the states argue in their amicus brief. "It limits the ability of government -- at all levels -- to use or decline donated property as a means of government expression."

The justices will hear oral arguments in the case during the fall.

The questions presented are:

1. Did the Tenth Circuit err by holding, in conflict with the Second, Third, Seventh,Eighth, and D.C. Circuits, that a monument donated to a municipality and thereafter owned, controlled, and displayed by the municipality is not government speech but rather remains the private speech of the monument’s donor?

2. Did the Tenth Circuit err by ruling, in conflict with the Second, Sixth, and Seventh Circuits, that a municipal park is a public forum under the First Amendment for the erection and permanent display of monuments proposed by private parties?

3. Did the Tenth Circuit err by ruling that the city must immediately erect and display Summum's "Seven Aphorisms" monument in the city’s park?