555 U.S. 460 (2009)
Pioneer Park is a 2.5 acre public park located in the Historic District of Pleasant Grove City, Utah.1 The park currently contains 15 permanent displays, at least 11 of which were donated by private groups or individuals.2 These include an historic granary, a wishing well, the City’s first fire station, a September 11 monument, and a Ten Commandments monument donated by the Fraternal Order of Eagles in 1971.3
Respondent Summum is a religious organization founded in 1975 and headquartered in Salt Lake City, Utah.4 On two separate occasions in 2003, Summum’s president wrote a letter to the City’s mayor requesting permission to erect a stone monument containing the Seven Aphorisms of Summum.5 The monument was to be similar in size and nature to the Ten Commandments monument. The City denied the requests.6 It explained that its practice was to limit monuments in the Park to those that either directly relate to the history of Pleasant Grove or were donated by groups with longstanding ties to the Pleasant Grove community.7
The following year the City passed a resolution putting this policy into writing.8 The resolution also mentioned other criteria such as safety and esthetics.9 In May 2005 Summum’s president again wrote to the mayor asking to erect a monument.10 The letter did not describe the monument, its historical significance, or Summum’s connection to the community.11 The city council rejected this request.12
In 2005 Summum filed this action against the City and local officials.13 It asserted that they had violated the Free Speech Clause by accepting the Ten Commandments monument but rejecting the proposed Seven Aphorisms monument.14 Summum sought a preliminary injunction directing the City to permit it to erect its monument in Pioneer Park.15 After the District Court denied Summum’s preliminary injunction request, a panel of the Tenth Circuit reversed.16
The Tenth Circuit denied the City’s petition for rehearing en banc by an equally divided vote.17 The Supreme Court granted certiorari and now reviews the case.18
Whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected?19
The Free Speech Clause restricts government regulation of private speech but does not regulate government speech.20 A government entity has the right to speak for itself.21 It may select the views that it wants to express.22 Permanent monuments displayed on public property typically represent government speech because governments have long used monuments to speak to the public.23 When a government accepts and displays a privately donated monument on its land, observers reasonably interpret the monument as conveying a message on the government's behalf.24
Yes. Pioneer Park contains fifteen permanent displays, at least eleven of which were donated by private groups.25 One such display is the Ten Commandments monument given by the Fraternal Order of Eagles in 1971.26 Summum is a religious organization founded in 1975.27 It requested permission in 2003 and again in 2005 to erect a similar monument displaying the Seven Aphorisms.28 However, it provided no description of historical significance or community ties.29 The City rejected the requests under its written policy.30 That policy limited monuments to those directly related to the City's history or donated by groups with longstanding community ties.31 The City exercised final approval authority by taking ownership of accepted monuments.32 It also set selection criteria based on esthetics, history, and local culture.33 Because the City effectively controlled the messages conveyed by the monuments it chose to display, the placement of permanent monuments constitutes government speech exempt from Free Speech Clause scrutiny.34
The forum doctrine does not apply.35 Public parks can accommodate only a limited number of permanent monuments.36 This differs from transitory speech such as speeches or demonstrations that many speakers can share over time.37 If governments were required to maintain viewpoint neutrality when selecting donated monuments, they would face pressure either to clutter parks or to remove longstanding displays.38 This would lead most parks to refuse all donations.39
The City's decision to accept the Ten Commandments monument while rejecting Summum's proposed monument is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.40
Related opinions on this issue
Joined by Ginsburg, J.
This case involves a property owner's rejection of an offer to place a permanent display on its land.41 While joining the Court's opinion, the reasons justifying the city's refusal would have been equally valid if its acceptance of the monument had merely been deemed an implicit endorsement of the donor's message.42 Unlike other decisions relying on the government speech doctrine, this decision excuses no retaliation for or coercion of private speech.43
Government speakers remain bound by the Constitution's other proscriptions, including those supplied by the Establishment and Equal Protection Clauses.44 Together with the checks imposed by democratic processes, these constitutional safeguards ensure that the effect of the decision will be limited.45
Joined by Thomas, J.
As framed by the parties, the case presents a question under the Free Speech Clause, but it has been litigated in the shadow of the Establishment Clause.46 The city ought not fear that today's victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire.47 A virtually identical Ten Commandments monument donated by the same organization was upheld in Van Orden v. Perry against Establishment Clause challenge.48
That monument conveyed a permissible secular message, as evidenced by its location in a park with multiple monuments and historical markers and by the length of time for which it had gone unchallenged.49 The city can safely exhale and its residents can enjoy the park without fear of complicity in an establishment of religion.50
I agree with the Court on the understanding that the government speech doctrine is a rule of thumb, not a rigid category.51 Courts must apply categories such as government speech, public forums, limited public forums, and nonpublic forums with an eye towards their purposes lest free speech doctrine turn into a jurisprudence of labels.52 The City's action does not disproportionately restrict Summum's freedom of expression.53
The City has not closed off its parks to speech in a form more transient than a permanent monument.54 Rather, the City has simply reserved some space in the park for projects designed to further other than free-speech goals, such as recreational, historical, educational, aesthetic, and other civic interests.55 Analyzed either way, the City's action is lawful.56
I agree that the Ten Commandments monument is government speech and that the city need not satisfy the particular formality urged by Summum.57 I have qualms, however, about accepting the position that public monuments are government speech categorically.58 The interaction between the government speech doctrine and Establishment Clause principles has not begun to be worked out.59
The best approach is to ask whether a reasonable and fully informed observer would understand the expression to be government speech.60 This is distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land.61 Application of this observer test provides the reason the monument here qualifies as government expression.62 This approach would serve coherence within Establishment Clause law.63