'Summum', the Vocality of Public Places, and the Public Forum
Brigham Young University Law Review, 2011
30 Pages Posted: 12 Oct 2010 Last revised: 10 Jan 2011
Date Written: October 4, 2010
This contribution to a symposium on the emerging complexities of government speech focuses on Pleasant Grove City v. Summum. Summum is a remarkable decision in several respects. It represents many firsts in terms of the Supreme Court's public speech jurisprudence: First to hold that the public forum doctrine is out of place in a public park (a traditional public forum); first to treat a public park as a channel of governmental speech; and first to expressly engage the communicative aspects (the vocality) of public place. Because the Court dispatched the public forum doctrine so quickly, one might think the decision has nothing much to say about the concept or status of the public forum. To the contrary, this piece contends that a close reading of Summum shows that the decision’s analysis and rationale may have a substantial effect on private speech rights in public places. The government speaker is not like any other speaker in a park or other public place. Its voice is louder, and its right to remain is stronger, than that of any private speaker. Most importantly, of course, government speakers have the power to exclude other voices. This piece argues that the Court’s conception of public places as channels of governmental speech, its heavy reliance on the analogy of private property ownership, and its suggestion that public places such as parks themselves convey governmental identity claims threaten to undermine fundamental tenets of the public forum concept and to limit private speech in public places.
Keywords: public forum, free speech, Summum, public park, First Amendment, property, public place
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