Why Donated Monuments are Government Speech: The Hard Case of Pleasant Grove City v. Summum
52 Pages Posted: 3 Sep 2008 Last revised: 23 Feb 2010
This Article expands upon an amicus brief I wrote for the International Municipal Lawyers’ Association (IMLA) on behalf of Petitioner in Pleasant Grove City v. Summum. In Summum, the Court held that donated monuments displayed in public parks are “government speech,” not private speech, and so the First Amendment did not apply to the City’s monument selection decisions. The IMLA brief, which was cited and relied on by the Court, provided an extensive look at municipal monument practices around the country. This Article provides a more complete description of the IMLA survey’s methodology, and a deeper analysis of how local governments interact with the private sector to create and respond to monuments’ perceived messages.
This Article also builds on an earlier 2004 article, in which I argued that new public-private expressive partnerships sometimes require an expanded doctrine of government speech. In line with the analysis used by the Court in Summum, I asserted that in some contexts, the doctrine should encompass not only specific statutory policies, but also broad, thematic government “identity” messages. As shown in both articles, limited public forum analysis frequently is insufficient to support valuable projects, especially as viewpoint and content became indistinguishable. Earlier, I proposed limiting principles based on written program criteria; here, I explain why this theory also should apply in the donated monument context, which typically is more ad hoc than programmatic. This Article originally was posted on SSRN in August 2008, in part to supplement the amicus brief by acknowledging the important limits on government’s use of the new doctrine; it now is updated with the final published version.
Keywords: government speech, public forum, Establishment Clause, Free Speech Clause, Pleasant Grove, Summum, Ten Commandments, Van Orden, endorsement test, monument, religious speech
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