Barry, as you note, the Summum group did not bring an Establishment Clause challenge in this case. In this First Amendment case, we believe the Supreme Court is faced with 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.
If the 10th Circuit decision is permitted to stand, the fact is that cities could be forced to either 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.
Under the 10th Circuit’s logic, federal, state, and local government bodies would be 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 Summum’s Seven Aphorisms, PETA’s suffering circus elephant, or Fred Phelps’s denunciation of homosexuals.
It’s our position that cities like Pleasant Grove are engaging in government speech which gives the government authority to control its message. In this case, just because the city years ago decided to accept and display a donated monument of the Ten Commandments from the Fraternal Order of Eagles (as thousands of communities did nationwide) does not compel the city to accept and display any other monument.
In our briefs submitted in this case, we have made it clear that in our view the 10th Circuit made several crucial errors in constitutional analysis. We argue that the First Amendment does not require that a government park be turned into a cluttered junkyard of monuments contributed by all comers.
The appeals court confused the distinction between government speech and private speech. Our brief contends that “a city’s 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,” our briefs contend. “For example, while The Great Gatsby is admittedly not 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.”
Further, accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny.
As we argue in our reply brief, the basic question is whether a city gets to decide which permanent, unattended monuments, if any, to install on city property. In our view, the answer must be ‘Yes.’
Barry, I had hoped you would have filed an amicus brief supporting our position. Many other organizations and groups did. Fifteen friend-of- the-court briefs have been filed supporting our position, including briefs from the United States government, fourteen states, nine cities (including New York City), veterans groups (including the American Legion and the VFW), and various religious liberty groups (including both Christian and Jewish organizations).
As with any oral argument before the high court, I am expecting a vibrant and engaging exchange with the Justices tomorrow. I am hopeful that a majority of the high court will uphold this important distinction between government speech and private speech. And that means overturning the 10th Circuit.
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