The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums
14 Pages Posted: 7 Sep 2008 Last revised: 16 Nov 2008
Date Written: October 27, 2008
This November, the Supreme Court will hear argument in City of Pleasant Grove v. Summum, where the question is whether the public has a right to place permanent monuments in a traditional public forum, such as a city park. Permanent monuments pose a puzzle for current public forum doctrine: How can we distinguish temporary speech (such as a rally) from permanent monuments without causing doctrinal incoherence or unintended consequences. Lower courts have bent and stretched existing public forum doctrine in their attempt to solve the puzzle, without success.
This Essay looks outside the current framework - to the real property law of easements - for a solution. The analogy to easement law, and its rule against unreasonable interference with another's property rights, provides a principled basis for distinguishing temporary speech from permanent monuments. By thinking of the public's right to use a traditional public forum as a constitutional easement, courts can finally solve the puzzle: A permanent monument would be an exclusive use of government property that unreasonably interferes with the government's ownership and the public's right to use. Such monuments, then, are not within the public's right to use a traditional public forum. This outcome leaves local governments flexibility in deciding which permanent monuments to locate in their parks, streets, and other traditional public forums.
Keywords: First Amendment, Free Speech, Public Forums, Monuments, Easements, Constitutional Law, Summum
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