Pleasant Grove City v. Summum , 129 S. Ct. 1125 ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PLEASANT GROVE CITY, UTAH, ET AL. v. SUMMUM
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 07–665. Argued November 12, 2008—Decided February 25, 2009
Pioneer Park (Park), a public park in petitioner Pleasant Grove City
(City), has at least 11 permanent, privately donated displays, includ
ing a Ten Commandments monument. In rejecting the request of re
spondent Summum, a religious organization, to erect a monument
containing the Seven Aphorisms of Summum, the City explained that
it limited Park monuments to those either directly related to the
City’s history or donated by groups with longstanding community
ties. After the City put that policy and other criteria into writing, re
spondent renewed its request, but did not describe the monument’s
historical significance or respondent’s connection to the community.
The City rejected the request, and respondent filed suit, claiming
that the City and petitioner officials had violated the First Amend
ment’s Free Speech Clause by accepting the Ten Commandments
monument but rejecting respondent’s proposed monument. The Dis
trict Court denied respondent’s preliminary injunction request, but
the Tenth Circuit reversed. Noting that it had previously found the
Ten Commandments monument to be private rather than govern
ment speech and that public parks have traditionally been regarded
as public forums, the court held that, because the exclusion of the
monument was unlikely to survive strict scrutiny, the City was re
quired to erect it immediately.
Held: The placement of a permanent monument in a public park is a
form of government speech and is therefore not subject to scrutiny
under the Free Speech Clause. Pp. 4–18.
(a) Because that Clause restricts government regulation of private
speech but not government speech, whether petitioners were engag
ing in their own expressive conduct or providing a forum for private
speech determines which precedents govern here. Pp. 4–7.
2 PLEASANT GROVE CITY v. SUMMUM
Syllabus
(1) A government entity “is entitled to say what it wishes,”
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833,
and to select the views that it wants to express, see, e.g., Rust v. Sul
livan, 500 U. S. 173, 194. It may exercise this same freedom when it
receives private assistance for the purpose of delivering a govern
ment-controlled message. See Johanns v. Livestock Marketing Assn.,
544 U. S. 550, 562. This does not mean that there are no restraints
on government speech. For example, government speech must com
port with the Establishment Clause. In addition, public officials’ in
volvement in advocacy may be limited by law, regulation, or practice;
and a government entity is ultimately “accountable to the electorate
and the political process for its advocacy,” Board of Regents of Univ.
of Wis. System v. Southworth, 529 U. S. 217, 235. Pp. 4–6.
(2) In contrast, government entities are strictly limited in their
ability to regulate private speech in “traditional public fora.” Corne
lius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800.
Reasonable time, place, and manner restrictions are allowed, see
Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45, but
content-based restrictions must satisfy strict scrutiny, i.e., they must
be narrowly tailored to serve a compelling government interest, see
Cornelius, supra, at 800. Restrictions based on viewpoint are also
prohibited. Carey v. Brown, 447 U. S. 455, 463. Government restric
tions on speech in a “designated public forum” are subject to the same
strict scrutiny as restrictions in a traditional public forum. Corne
lius, supra, at 800. And where government creates a forum that is
limited to use by certain groups or dedicated to the discussion of cer
tain subjects, Perry Ed. Assn., supra, at 46, n. 7, it may impose rea
sonable and viewpoint-neutral restrictions, see Good News Club v.
Milford Central School, 533 U. S. 98, 106–107. Pp. 6–7.
(b) Permanent monuments displayed on public property typically
represent government speech. Governments have long used monu
ments to speak to the public. Thus, a government-commissioned and
government-financed monument placed on public land constitutes
government speech. So, too, are privately financed and donated
monuments that the government accepts for public display on gov
ernment land. While government entities regularly accept privately
funded or donated monuments, their general practice has been one of
selective receptivity. Because city parks play an important role in de
fining the identity that a city projects to its residents and the outside
world, cities take care in accepting donated monuments, selecting
those that portray what the government decisionmakers view as ap
propriate for the place in question, based on esthetics, history, and
local culture. The accepted monuments are meant to convey and
have the effect of conveying a government message and thus consti
Cite as: 555 U. S. ____ (2009) 3
Syllabus
tute government speech. Pp. 7–10.
(c) Here, the Park’s monuments clearly represent government
speech. Although many were donated in completed form by private
entities, the City has “effectively controlled” their messages by exer
cising “final approval authority” over their selection. Johanns, supra,
at 560–561. The City has selected monuments that present the im
age that the City wishes to project to Park visitors; it has taken own
ership of most of the monuments in the Park, including the Ten Com
mandments monument; and it has now expressly set out selection
criteria. P. 10.
(d) Respondent’s legitimate concern that the government speech
doctrine not be used as a subterfuge for favoring certain viewpoints
does not mean that a government entity should be required to em
brace publicly a privately donated monument’s “message” in order to
escape Free Speech Clause restrictions. A city engages in expressive
conduct by accepting and displaying a privately donated monument,
but it does not necessarily endorse the specific meaning that any par
ticular donor sees in the monument. A government’s message may be
altered by the subsequent addition of other monuments in the same
vicinity. It may also change over time. Pp. 10–15.
(e) “[P]ublic forum principles . . . are out of place in the context of
this case.” United States v. American Library Assn., Inc., 539 U. S.
194, 205. The forum doctrine applies where a government property
or program is capable of accommodating a large number of public
speakers without defeating the essential function of the land or pro
gram, but public parks can accommodate only a limited number of
permanent monuments. If governments must maintain viewpoint
neutrality in selecting donated monuments, they must either prepare
for cluttered parks or face pressure to remove longstanding and cher
ished monuments. Were public parks considered traditional public
forums for the purpose of erecting privately donated monuments,
most parks would have little choice but to refuse all such donations.
And if forum analysis would lead almost inexorably to closing of the
forum, forum analysis is out of place. Capitol Square Review and
Advisory Bd. v. Pinette, 515 U. S. 753, distinguished. Pp. 15–18.
483 F. 3d 1044, reversed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and STEVENS, SCALIA, KENNEDY, THOMAS, GINSBURG, and BREYER, JJ.,
joined. STEVENS, J., filed a concurring opinion, in which GINSBURG, J.,
joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J.,
joined. BREYER, J., filed a concurring opinion. SOUTER, J., filed an opin
ion concurring in the judgment.
Cite as: 555 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–665
_________________
PLEASANT GROVE CITY, UTAH, ET AL., PETITIONERS
v. SUMMUM
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[February 25, 2009]
JUSTICE ALITO delivered the opinion of the Court.
This case presents the question 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 do
nated monuments were previously erected. The Court of
Appeals held that the municipality was required to accept
the monument because a public park is a traditional pub
lic forum. We conclude, however, that although a park is a
traditional public forum for speeches and other transitory
expressive acts, the display of a permanent monument in
a public park is not a form of expression to which forum
analysis applies. Instead, the placement of a permanent
monument in a public park is best viewed as a form of
government speech and is therefore not subject to scrutiny
under the Free Speech Clause.
I
A
Pioneer Park (or Park) is a 2.5 acre public park located
in the Historic District of Pleasant Grove City (or City) in
Utah. The Park currently contains 15 permanent dis
2 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
plays, at least 11 of which were donated by private groups
or individuals. These include an historic granary, a wish
ing well, the City’s first fire station, a September 11
monument, and a Ten Commandments monument do
nated by the Fraternal Order of Eagles in 1971.
Respondent Summum is a religious organization
founded in 1975 and headquartered in Salt Lake City,
Utah. On two separate occasions in 2003, Summum’s
president wrote a letter to the City’s mayor requesting
permission to erect a “stone monument,” which would
contain “the Seven Aphorisms of SUMMUM”1 and be
similar in size and nature to the Ten Commandments
monument. App. 57, 59. The City denied the requests
and explained that its practice was to limit monuments in
the Park to those that “either (1) directly relate to the
history of Pleasant Grove, or (2) were donated by groups
with longstanding ties to the Pleasant Grove community.”
Id., at 61. The following year, the City passed a resolution
——————
1 Respondent’s
brief describes the church and the Seven Aphorisms as
follows:
“The Summum church incorporates elements of Gnostic Christianity,
teaching that spiritual knowledge is experiential and that through
devotion comes revelation, which ‘modifies human perceptions, and
transfigures the individual.’ See The Teachings of Summum are the
Teachings of Gnostic Christianity, http://www.summum.us/philosophy/
gnosticism.shtml (visited Aug. 15, 2008).
“Central to Summum religious belief and practice are the Seven
Principles of Creation (the “Seven Aphorisms”). According to Summum
doctrine, the Seven Aphorisms were inscribed on the original tablets
handed down by God to Moses on Mount Sinai. . . . Because Moses
believed that the Israelites were not ready to receive the Aphorisms, he
shared them only with a select group of people. In the Summum
Exodus account, Moses then destroyed the original tablets, traveled
back to Mount Sinai, and returned with a second set of tablets con
taining the Ten Commandments. See The Aphorisms of Summum
and the Ten Commandments, http://www.summum.us/philosophy/
tencommandments.shtml (visited Aug. 15, 2008).” Brief for Respondent
1–2.
Cite as: 555 U. S. ____ (2009) 3
Opinion of the Court
putting this policy into writing. The resolution also men
tioned other criteria, such as safety and esthetics.
In May 2005, respondent’s president again wrote to the
mayor asking to erect a monument, but the letter did not
describe the monument, its historical significance, or
Summum’s connection to the community. The city council
rejected this request.
B
In 2005, respondent filed this action against the City
and various local officials (petitioners), asserting, among
other claims, that petitioners had violated the Free Speech
Clause of the First Amendment by accepting the Ten
Commandments monument but rejecting the proposed
Seven Aphorisms monument. Respondent sought a pre
liminary injunction directing the City to permit Summum
to erect its monument in Pioneer Park. After the District
Court denied Summum’s preliminary injunction request,
No. 2:05CV00638, 2006 WL 3421838 (D Utah, Nov. 22,
2006), respondent appealed, pressing solely its free speech
claim.
A panel of the Tenth Circuit reversed. 483 F. 3d 1044(2007). The panel noted that it had previously found the
Ten Commandments monument to be private rather than
government speech. See Summum v. Ogden, 297 F. 3d
995 (2002). Noting that public parks have traditionally
been regarded as public forums, the panel held that the
City could not reject the Seven Aphorisms monument
unless it had a compelling justification that could not be
served by more narrowly tailored means. See 483 F. 3d, at
1054. The panel then concluded that the exclusion of
respondent’s monument was unlikely to survive this strict
scrutiny, and the panel therefore held that the City was
required to erect Summum’s monument immediately.
The Tenth Circuit denied the City’s petition for rehear
ing en banc by an equally divided vote. 499 F. 3d 11704 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
(2007). Judge Lucero dissented, arguing that the Park
was not a traditional public forum for the purpose of dis
playing monuments. Id., at 1171. Judge McConnell also
dissented, contending that the monuments in the Park
constitute government speech. Id., at 1174.
We granted certiorari, 552 U. S. ___ (2008), and now
reverse.
II
No prior decision of this Court has addressed the appli
cation of the Free Speech Clause to a government entity’s
acceptance of privately donated, permanent monuments
for installation in a public park, and the parties disagree
sharply about the line of precedents that governs this
situation. Petitioners contend that the pertinent cases are
those concerning government speech. Respondent, on the
other hand, agrees with the Court of Appeals panel that
the applicable cases are those that analyze private speech
in a public forum. The parties’ fundamental disagreement
thus centers on the nature of petitioners’ conduct when
they permitted privately donated monuments to be erected
in Pioneer Park. Were petitioners engaging in their own
expressive conduct? Or were they providing a forum for
private speech?
A
If petitioners were engaging in their own expressive
conduct, then the Free Speech Clause has no application.
The Free Speech Clause restricts government regulation
of private speech; it does not regulate government speech.
See Johanns v. Livestock Marketing Assn., 544 U. S. 550,
553 (2005) (“[T]he Government’s own speech . . . is exempt
from First Amendment scrutiny”); Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412 U. S.
94, 139, n. 7 (1973) (Stewart, J., concurring) (“Government
is not restrained by the First Amendment from controlling
Cite as: 555 U. S. ____ (2009) 5
Opinion of the Court
its own expression”). A government entity has the right to
“speak for itself.” Board of Regents of Univ. of Wis. System
v. Southworth, 529 U. S. 217, 229 (2000). “[I]t is entitled
to say what it wishes,” Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U. S. 819, 833 (1995), and to select the
views that it wants to express. See Rust v. Sullivan, 500
U. S. 173, 194 (1991); National Endowment for Arts v.
Finley, 524 U. S. 569, 598 (1998) (SCALIA, J., concurring in
judgment) (“It is the very business of government to favor
and disfavor points of view”).
Indeed, it is not easy to imagine how government could
function if it lacked this freedom. “If every citizen were to
have a right to insist that no one paid by public funds
express a view with which he disagreed, debate over is
sues of great concern to the public would be limited to
those in the private sector, and the process of government
as we know it radically transformed.” Keller v. State Bar
of Cal., 496 U. S. 1, 12–13 (1990). See also Johanns, 544
U. S., at 574 (SOUTER, J., dissenting) (“To govern, govern
ment has to say something, and a First Amendment heck
ler’s veto of any forced contribution to raising the govern
ment’s voice in the ‘marketplace of ideas’ would be out of
the question” (footnote omitted)).
A government entity may exercise this same freedom to
express its views when it receives assistance from private
sources for the purpose of delivering a government
controlled message. See id., at 562 (opinion of the Court)
(where the government controls the message, “it is not
precluded from relying on the government-speech doctrine
merely because it solicits assistance from nongovernmen
tal sources”); Rosenberger, supra, at 833 (a government
entity may “regulate the content of what is or is not ex
pressed . . . when it enlists private entities to convey its
own message”).
This does not mean that there are no restraints on
government speech. For example, government speech
6 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
must comport with the Establishment Clause. The in
volvement of public officials in advocacy may be limited by
law, regulation, or practice. And of course, a government
entity is ultimately “accountable to the electorate and the
political process for its advocacy.” Southworth, 529 U. S.,
at 235. “If the citizenry objects, newly elected officials
later could espouse some different or contrary position.”
Ibid.B
While government speech is not restricted by the Free
Speech Clause, the government does not have a free hand
to regulate private speech on government property. This
Court long ago recognized that members of the public
retain strong free speech rights when they venture into
public streets and parks, “which ‘have immemorially been
held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communi
cating thoughts between citizens, and discussing public
questions.’ ” Perry Ed. Assn. v. Perry Local Educators’
Assn., 460 U. S. 37, 45 (1983) (quoting Hague v. Committee
for Industrial Organization, 307 U. S. 496, 515 (1939)
(opinion of Roberts, J.)). In order to preserve this freedom,
government entities are strictly limited in their ability to
regulate private speech in such “traditional public fora.”
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473
U. S. 788, 800 (1985). Reasonable time, place, and man
ner restrictions are allowed, see Perry Ed. Assn., supra, at
45, but any restriction based on the content of the speech
must satisfy strict scrutiny, that is, the restriction must be
narrowly tailored to serve a compelling government inter
est, see Cornelius, supra, at 800, and restrictions based on
viewpoint are prohibited, see Carey v. Brown, 447 U. S.
455, 463 (1980).
With the concept of the traditional public forum as a
starting point, this Court has recognized that members of
Cite as: 555 U. S. ____ (2009) 7
Opinion of the Court
the public have free speech rights on other types of gov
ernment property and in certain other government pro
grams that share essential attributes of a traditional
public forum. We have held that a government entity may
create “a designated public forum” if government property
that has not traditionally been regarded as a public forum
is intentionally opened up for that purpose. See Cornelius,
473 U. S., at 802. Government restrictions on speech in a
designated public forum are subject to the same strict
scrutiny as restrictions in a traditional public forum. Id.,
at 800.
The Court has also held that a government entity may
create a forum that is limited to use by certain groups or
dedicated solely to the discussion of certain subjects.
Perry Ed. Assn., supra, at 46, n. 7. In such a forum, a
government entity may impose restrictions on speech that
are reasonable and viewpoint-neutral. See Good News
Club v. Milford Central School, 533 U. S. 98, 106–107
(2001).
III
There may be situations in which it is difficult to tell
whether a government entity is speaking on its own behalf
or is providing a forum for private speech, but this case
does not present such a situation. Permanent monuments
displayed on public property typically represent govern
ment speech.
Governments have long used monuments to speak to the
public. Since ancient times, kings, emperors, and other
rulers have erected statues of themselves to remind their
subjects of their authority and power. Triumphal arches,
columns, and other monuments have been built to com
memorate military victories and sacrifices and other
events of civic importance. A monument, by definition, is
a structure that is designed as a means of expression.
When a government entity arranges for the construction of
8 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
a monument, it does so because it wishes to convey some
thought or instill some feeling in those who see the struc
ture. Neither the Court of Appeals nor respondent dis
putes the obvious proposition that a monument that is
commissioned and financed by a government body for
placement on public land constitutes government speech.
Just as government-commissioned and government
financed monuments speak for the government, so do
privately financed and donated monuments that the gov
ernment accepts and displays to the public on government
land. It certainly is not common for property owners to
open up their property for the installation of permanent
monuments that convey a message with which they do not
wish to be associated. And because property owners typi
cally do not permit the construction of such monuments on
their land, persons who observe donated monuments
routinely—and reasonably—interpret them as conveying
some message on the property owner’s behalf. In this
context, there is little chance that observers will fail to
appreciate the identity of the speaker. This is true
whether the monument is located on private property or
on public property, such as national, state, or city park
land.
We think it is fair to say that throughout our Nation’s
history, the general government practice with respect to
donated monuments has been one of selective receptivity.
A great many of the monuments that adorn the Nation’s
public parks were financed with private funds or donated
by private parties. Sites managed by the National Park
Service contain thousands of privately designed or funded
commemorative objects, including the Statue of Liberty,
the Marine Corps War Memorial (the Iwo Jima monu
ment), and the Vietnam Veterans Memorial. States and
cities likewise have received thousands of donated monu
ments. See, e.g., App. to Brief for International Municipal
Lawyers Association as Amicus Curiae 15a–29a (hereinaf
Cite as: 555 U. S. ____ (2009) 9
Opinion of the Court
ter IMLA Brief) (listing examples); Brief for American
Legion et al. as Amici Curiae 7, and n. 2 (same). By ac
cepting monuments that are privately funded or donated,
government entities save tax dollars and are able to ac
quire monuments that they could not have afforded to
fund on their own.
But while government entities regularly accept pri
vately funded or donated monuments, they have exercised
selectivity. An example discussed by the city of New York
as amicus curiae is illustrative. In the wake of the contro
versy generated in 1876 when the city turned down a
donated monument to honor Daniel Webster, the city
adopted rules governing the acceptance of artwork for
permanent placement in city parks, requiring, among
other things, that “any proposed gift of art had to be
viewed either in its finished condition or as a model before
acceptance.” Brief for City of New York as Amicus Curiae
4–5 (hereinafter NYC Brief). Across the country, “munici
palities generally exercise editorial control over donated
monuments through prior submission requirements,
design input, requested modifications, written criteria,
and legislative approvals of specific content proposals.”
IMLA Brief 21.
Public parks are often closely identified in the public
mind with the government unit that owns the land. City
parks—ranging from those in small towns, like Pioneer
Park in Pleasant Grove City, to those in major metropo
lises, like Central Park in New York City—commonly play
an important role in defining the identity that a city pro
jects to its own residents and to the outside world. Accord
ingly, cities and other jurisdictions take some care in
accepting donated monuments. Government decisionmak
ers select the monuments that portray what they view as
appropriate for the place in question, taking into account
such content-based factors as esthetics, history, and local
culture. The monuments that are accepted, therefore, are
10 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
meant to convey and have the effect of conveying a gov
ernment message, and they thus constitute government
speech.
IV
A
In this case, it is clear that the monuments in Pleasant
Grove’s Pioneer Park represent government speech. Al
though many of the monuments were not designed or built
by the City and were donated in completed form by private
entities, the City decided to accept those donations and to
display them in the Park. Respondent does not claim that
the City ever opened up the Park for the placement of
whatever permanent monuments might be offered by
private donors. Rather, the City has “effectively con
trolled” the messages sent by the monuments in the Park
by exercising “final approval authority” over their selec
tion. Johanns, 544 U. S., at 560–561. The City has se
lected those monuments that it wants to display for the
purpose of presenting the image of the City that it wishes
to project to all who frequent the Park; it has taken own
ership of most of the monuments in the Park, including
the Ten Commandments monument that is the focus of
respondent’s concern; and the City has now expressly set
forth the criteria it will use in making future selections.
B
Respondent voices the legitimate concern that the gov
ernment speech doctrine not be used as a subterfuge for
favoring certain private speakers over others based on
viewpoint. Respondent’s suggested solution is to require a
government entity accepting a privately donated monu
ment to go through a formal process of adopting a resolu
tion publicly embracing “the message” that the monument
conveys. See Brief for Respondent 33–34, 57.
We see no reason for imposing a requirement of this
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sort. The parks of this country contain thousands of do
nated monuments that government entities have used for
their own expressive purposes, usually without producing
the sort of formal documentation that respondent now
says is required to escape Free Speech Clause restrictions.
Requiring all of these jurisdictions to go back and proclaim
formally that they adopt all of these monuments as their
own expressive vehicles would be a pointless exercise that
the Constitution does not mandate.
In this case, for example, although respondent argues
that Pleasant Grove City has not adequately “controll[ed]
the message,” id., at 31, of the Ten Commandments monu
ment, the City took ownership of that monument and put
it on permanent display in a park that it owns and man
ages and that is linked to the City’s identity. All rights
previously possessed by the monument’s donor have been
relinquished. The City’s actions provided a more dramatic
form of adoption than the sort of formal endorsement that
respondent would demand, unmistakably signifying to all
Park visitors that the City intends the monument to speak
on its behalf. And the City has made no effort to abridge
the traditional free speech rights—the right to speak,
distribute leaflets, etc.—that may be exercised by respon
dent and others in Pioneer Park.
What respondent demands, however, is that the City
“adopt” or “embrace” “the message” that it associates with
the monument. Id., at 33–34, 57. Respondent seems to
think that a monument can convey only one “message”—
which is, presumably, the message intended by the do
nor—and that, if a government entity that accepts a
monument for placement on its property does not formally
embrace that message, then the government has not en
gaged in expressive conduct.
This argument fundamentally misunderstands the way
monuments convey meaning. The meaning conveyed by a
monument is generally not a simple one like “ ‘Beef. It’s
12 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
What’s for Dinner.’ ” Johanns, supra, at 554. Even when
a monument features the written word, the monument
may be intended to be interpreted, and may in fact be
interpreted by different observers, in a variety of ways.
Monuments called to our attention by the briefing in this
case illustrate this phenomenon.
What, for example, is “the message” of the Greco-Roman
mosaic of the word “Imagine” that was donated to New
York City’s Central Park in memory of John Lennon? See
NYC Brief 18; App. to id., at A5. Some observers may
“imagine” the musical contributions that John Lennon
would have made if he had not been killed. Others may
think of the lyrics of the Lennon song that obviously in
spired the mosaic and may “imagine” a world without
religion, countries, possessions, greed, or hunger.2
——————
2 The lyrics are as follows:
“Imagine there’s no heaven
It’s easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today...
“Imagine there’s no countries
It isn’t hard to do
Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace...
“You may say I’m a dreamer
But I’m not the only one
I hope someday you’ll join us
And the world will be as one
“Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world...
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Opinion of the Court
Or, to take another example, what is “the message” of
the “large bronze statue displaying the word ‘peace’ in
many world languages” that is displayed in Fayetteville,
Arkansas?3
These text-based monuments are almost certain to
evoke different thoughts and sentiments in the minds of
different observers, and the effect of monuments that do
not contain text is likely to be even more variable. Con
sider, for example, the statue of Pancho Villa that was
given to the city of Tucson, Arizona, in 1981 by the Gov
ernment of Mexico with, according to a Tucson publica
tion, “a wry sense of irony.”4 Does this statue commemo
rate a “revolutionary leader who advocated for agrarian
reform and the poor” or “a violent bandit”? IMLA Brief 13.
Contrary to respondent’s apparent belief, it frequently is
not possible to identify a single “message” that is conveyed
by an object or structure, and consequently, the thoughts
or sentiments expressed by a government entity that
accepts and displays such an object may be quite different
from those of either its creator or its donor.5 By accepting
——————
“You may say I’m a dreamer
But I’m not the only one
I hope someday you’ll join us
And the world will live as one.” J. Lennon, Imagine, on Imagine (Apple
Records 1971).
3 See IMLA Brief 6–7.
4 The Presidio Trail: A Historical Walking Tour of Downtown
Tucson, online at http://www.visittucson.org/includes/media/docs/
DowntownTour.pdf.
5 Museum collections illustrate this phenomenon. Museums display
works of art that express many different sentiments, and the signifi
cance of a donated work of art to its creator or donor may differ mark
edly from a museum’s reasons for accepting and displaying the work.
For example, a painting of a religious scene may have been commis
sioned and painted to express religious thoughts and feelings. Even if
the painting is donated to the museum by a patron who shares those
thoughts and feelings, it does not follow that the museum, by display
ing the painting, intends to convey or is perceived as conveying the
14 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
a privately donated monument and placing it on city
property, a city engages in expressive conduct, but the
intended and perceived significance of that conduct may
not coincide with the thinking of the monument’s donor or
creator. Indeed, when a privately donated memorial is
funded by many small donations, the donors themselves
may differ in their interpretation of the monument’s sig
nificance.6 By accepting such a monument, a government
entity does not necessarily endorse the specific meaning
that any particular donor sees in the monument.
The message that a government entity conveys by allow
ing a monument to remain on its property may also be
altered by the subsequent addition of other monuments in
the same vicinity. For example, following controversy over
the original design of the Vietnam Veterans Memorial, a
compromise was reached that called for the nearby addi
tion of a flagstaff and bronze Three Soldiers statue, which
many believed changed the overall effect of the memorial.
See, e.g., J. Mayo, War Memorials as Political Landscape:
The American Experience and Beyond 202–203, 205
(1988); K. Hass, Carried to the Wall: American Memory
and the Vietnam Veterans Memorial 15–18 (1998).
The “message” conveyed by a monument may change
over time. A study of war memorials found that “people
reinterpret” the meaning of these memorials as “historical
interpretations” and “the society around them changes.”
Mayo, supra, at 8–9.
A striking example of how the interpretation of a monu
ment can evolve is provided by one of the most famous and
——————
same “message.”
6 For example, the Vietnam Veterans Memorial Fund is a private
organization that obtained funding from over 650,000 donors for the
construction of the memorial itself. These donors expressed a wide
range of personal sentiments in contributing money for the memorial.
See, e.g., J. Scruggs & J. Swerdlow, To Heal a Nation: The Vietnam
Veterans Memorial 23–28, 159 (1985).
Cite as: 555 U. S. ____ (2009) 15
Opinion of the Court
beloved public monuments in the United States, the
Statue of Liberty. The statue was given to this country by
the Third French Republic to express republican solidarity
and friendship between the two countries. See J. Res. 6,
44th Cong., 2d Sess. (1877), 19 Stat. 410 (accepting the
statue as an “expressive and felicitous memorial of the
sympathy of the citizens of our sister Republic”). At the
inaugural ceremony, President Cleveland saw the statue
as an emblem of international friendship and the wide
spread influence of American ideals. See Inauguration of
the Statue of Liberty Enlightening the World 30 (1887).
Only later did the statue come to be viewed as a beacon
welcoming immigrants to a land of freedom. See Public
Papers of the Presidents, Ronald Reagan, Vol. 2, July 3,
1986, pp. 918–919 (1989), Remarks at the Opening Cere
monies of the Statue of Liberty Centennial Celebration in
New York, New York; J. Higham, The Transformation of
the Statue of Liberty, in Send These To Me 74–80 (rev. ed.
1984).
C
Respondent and the Court of Appeals analogize the
installation of permanent monuments in a public park to
the delivery of speeches and the holding of marches and
demonstrations, and they thus invoke the rule that a
public park is a traditional public forum for these activi
ties. But “public forum principles . . . are out of place in
the context of this case.” United States v. American Li
brary Assn., Inc., 539 U. S. 194, 205 (2003). The forum
doctrine has been applied in situations in which govern
ment-owned property or a government program was capa
ble of accommodating a large number of public speakers
without defeating the essential function of the land or the
program. For example, a park can accommodate many
speakers and, over time, many parades and demonstra
tions. The Combined Federal Campaign permits hundreds
16 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
of groups to solicit donations from federal employees. See
Cornelius, 473 U. S., at 804–805. A public university’s
student activity fund can provide money for many campus
activities. See Rosenberger, 515 U. S., at 825. A public
university’s buildings may offer meeting space for hun
dreds of student groups. See Widmar v. Vincent, 454 U. S.
263, 274–275 (1981). A school system’s internal mail
facilities can support the transmission of many messages
to and from teachers and school administrators. See Perry
Ed. Assn., 460 U. S., at 39, 46–47. See also Arkansas Ed.
Television Comm’n v. Forbes, 523 U. S. 666, 680–681
(1998) (noting that allowing any candidate to participate
in a televised political debate would be burdensome on
“logistical grounds” and “would result in less speech, not
more”).
By contrast, public parks can accommodate only a lim
ited number of permanent monuments. Public parks have
been used, “ ‘time out of mind, . . . for purposes of assem
bly, communicating thoughts between citizens, and dis
cussing public questions,’ ” Perry Ed. Assn., supra, at 45
(quoting Hague, 307 U. S., at 515), but “one would be hard
pressed to find a ‘long tradition’ of allowing people to
permanently occupy public space with any manner of
monuments.” 499 F. 3d, at 1173 (Lucero, J., dissenting
from denial of rehearing en banc).
Speakers, no matter how long-winded, eventually come
to the end of their remarks; persons distributing leaflets
and carrying signs at some point tire and go home; monu
ments, however, endure. They monopolize the use of the
land on which they stand and interfere permanently with
other uses of public space. A public park, over the years,
can provide a soapbox for a very large number of orators—
often, for all who want to speak—but it is hard to imagine
how a public park could be opened up for the installation
of permanent monuments by every person or group wish
ing to engage in that form of expression.
Cite as: 555 U. S. ____ (2009) 17
Opinion of the Court
Respondent contends that this issue “can be dealt with
through content-neutral time, place and manner restric
tions, including the option of a ban on all unattended
displays.” Brief for Respondent 14. On this view, when
France presented the Statue of Liberty to the United
States in 1884, this country had the option of either (a)
declining France’s offer or (b) accepting the gift, but pro
viding a comparable location in the harbor of New York for
other statues of a similar size and nature (e.g., a Statue of
Autocracy, if one had been offered by, say, the German
Empire or Imperial Russia).
While respondent and some of its amici deride the fears
expressed about the consequences of the Court of Appeals
holding in this case, those concerns are well founded. If
government entities must maintain viewpoint neutrality
in their selection of donated monuments, they must either
“brace themselves for an influx of clutter” or face the
pressure to remove longstanding and cherished monu
ments. See 499 F. 3d, at 1175 (McConnell, J., dissenting
from denial of rehearing en banc). Every jurisdiction that
has accepted a donated war memorial may be asked to
provide equal treatment for a donated monument ques
tioning the cause for which the veterans fought. New
York City, having accepted a donated statue of one heroic
dog (Balto, the sled dog who brought medicine to Nome,
Alaska, during a diphtheria epidemic)7 may be pressed to
accept monuments for other dogs who are claimed to be
equally worthy of commemoration. The obvious truth of
the matter is that if public parks were considered to be
traditional public forums for the purpose of erecting pri
vately donated monuments, most parks would have little
choice but to refuse all such donations. And where the
application of forum analysis would lead almost inexorably
——————
7 See NYC Brief 2; App. to Brief for American Catholic Lawyers Asso
ciation as Amicus Curiae 1a–10.
18 PLEASANT GROVE CITY v. SUMMUM
Opinion of the Court
to closing of the forum, it is obvious that forum analysis is
out of place.
Respondent compares the present case to Capitol
Square Review and Advisory Bd. v. Pinette, 515 U. S. 753(1995), but that case involved a very different situation—a
request by a private group, the Ku Klux Klan, to erect a
cross for a period of 16 days on public property that had
been opened up for similar temporary displays, including a
Christmas tree and a menorah. See id., at 758. Although
some public parks can accommodate and may be made
generally available for temporary private displays, the
same is rarely true for permanent monuments.
To be sure, there are limited circumstances in which the
forum doctrine might properly be applied to a permanent
monument—for example, if a town created a monument on
which all of its residents (or all those meeting some other
criterion) could place the name of a person to be honored
or some other private message. But as a general matter,
forum analysis simply does not apply to the installation of
permanent monuments on public property.
V
In sum, we hold that the City’s decision to accept certain
privately donated monuments while rejecting respondent’s
is best viewed as a form of government speech. As a re
sult, the City’s decision is not subject to the Free Speech
Clause, and the Court of Appeals erred in holding other
wise. We therefore reverse.
It is so ordered.
Cite as: 555 U. S. ____ (2009) 1
STEVENS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–665
_________________
PLEASANT GROVE CITY, UTAH, ET AL., PETITIONERS
v. SUMMUM
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[February 25, 2009]
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
concurring.
This case involves a property owner’s rejection of an
offer to place a permanent display on its land. While I join
the Court’s persuasive opinion, I think the reasons justify
ing the city’s refusal would have been equally valid if its
acceptance of the monument, instead of being character
ized as “government speech,” had merely been deemed an
implicit endorsement of the donor’s message. See Capitol
Square Review and Advisory Bd. v. Pinette, 515 U. S. 753,
801–802 (1995) (STEVENS, J., dissenting).
To date, our decisions relying on the recently minted
government speech doctrine to uphold government action
have been few and, in my view, of doubtful merit. See,
e.g., Garcetti v. Ceballos, 547 U. S. 410 (2006); Johanns v.
Livestock Marketing Assn., 544 U. S. 550 (2005); Rust v.
Sullivan, 500 U. S. 173 (1991). The Court’s opinion in this
case signals no expansion of that doctrine. And by joining
the Court’s opinion, I do not mean to indicate agreement
with our earlier decisions. Unlike other decisions relying
on the government speech doctrine, our decision in this
case excuses no retaliation for, or coercion of, private
speech. Cf. Garcetti, 547 U. S., at 438 (SOUTER, J., dis
senting); Rust, 500 U. S., at 212 (Blackmun, J., dissent
ing). Nor is it likely, given the near certainty that observ
2 PLEASANT GROVE CITY v. SUMMUM
STEVENS, J., concurring
ers will associate permanent displays with the govern
mental property owner, that the government will be able
to avoid political accountability for the views that it en
dorses or expresses through this means. Cf. Johanns, 544
U. S., at 571–572 (SOUTER, J., dissenting). Finally, recog
nizing permanent displays on public property as govern
ment speech will not give the government free license to
communicate offensive or partisan messages. For even if
the Free Speech Clause neither restricts nor protects
government speech, government speakers are bound by
the Constitution’s other proscriptions, including those
supplied by the Establishment and Equal Protection
Clauses. Together with the checks imposed by our democ
ratic processes, these constitutional safeguards ensure
that the effect of today’s decision will be limited.
Cite as: 555 U. S. ____ (2009) 1
SCALIA, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–665
_________________
PLEASANT GROVE CITY, UTAH, ET AL., PETITIONERS
v. SUMMUM
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[February 25, 2009]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring.
As framed and argued by the parties, this case presents
a question under the Free Speech Clause of the First
Amendment. I agree with the Court’s analysis of that
question and join its opinion in full. But it is also obvious
that from the start, the case has been litigated in the
shadow of the First Amendment’s Establishment Clause:
the city wary of associating itself too closely with the Ten
Commandments monument displayed in the park, lest
that be deemed a breach in the so-called “wall of separa
tion between church and State,” Reynolds v. United States,
98 U. S. 145, 164 (1879); respondent exploiting that hesi
tation to argue that the monument is not government
speech because the city has not sufficiently “adopted” its
message. Respondent menacingly observed that while the
city could have formally adopted the monument as its
own, that “might of course raise Establishment Clause
issues.” Brief for Respondent 34, n. 11.
The city ought not fear that today’s victory has propelled
it from the Free Speech Clause frying pan into the Estab
lishment Clause fire. Contrary to respondent’s intima
tions, there are very good reasons to be confident that
the park displays do not violate any part of the First
Amendment.
2 PLEASANT GROVE CITY v. SUMMUM
SCALIA, J., concurring
In Van Orden v. Perry, 545 U. S. 677 (2005), this Court
upheld against Establishment Clause challenge a virtually
identical Ten Commandments monument, donated by the
very same organization (the Fraternal Order of Eagles),
which was displayed on the grounds surrounding the
Texas State Capitol. Nothing in that decision suggested
that the outcome turned on a finding that the monument
was only “private” speech. To the contrary, all the Jus
tices agreed that government speech was at issue, but the
Establishment Clause argument was nonetheless rejected.
For the plurality, that was because the Ten Command
ments “have an undeniable historical meaning” in addition
to their “religious significance,” id., at 690 (opinion of
Rehnquist, C. J.). JUSTICE BREYER, concurring in the
judgment, agreed that the monument conveyed a permis
sible secular message, as evidenced by its location in a
park that contained multiple monuments and historical
markers; by the fact that it had been donated by the Ea
gles “as part of that organization’s efforts to combat juve
nile delinquency”; and by the length of time (40 years) for
which the monument had gone unchallenged. Id., at 701–
703. See also id., at 739–740 (SOUTER, J., dissenting).
Even accepting the narrowest reading of the narrowest
opinion necessary to the judgment in Van Orden, there is
little basis to distinguish the monument in this case:
Pioneer Park includes “15 permanent displays,” ante, at 1–
2; it was donated by the Eagles as part of its national
effort to combat juvenile delinquency, Brief for Respon
dent 3; and it was erected in 1971, ibid., which means it is
approaching its (momentous!) 40th anniversary.
The city can safely exhale. Its residents and visitors can
now return to enjoying Pioneer Park’s wishing well, its
historic granary—and, yes, even its Ten Commandments
monument—without fear that they are complicit in an
establishment of religion.
Cite as: 555 U. S. ____ (2009) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–665
_________________
PLEASANT GROVE CITY, UTAH, ET AL., PETITIONERS
v. SUMMUM
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[February 25, 2009]
JUSTICE BREYER, concurring.
I agree with the Court and join its opinion. I do so,
however, on the understanding that the “government
speech” doctrine is a rule of thumb, not a rigid category.
Were the City to discriminate in the selection of perma
nent monuments on grounds unrelated to the display’s
theme, say solely on political grounds, its action might
well violate the First Amendment.
In my view, courts must apply categories such as “gov
ernment speech,” “public forums,” “limited public forums,”
and “nonpublic forums” with an eye towards their pur
poses—lest we turn “free speech” doctrine into a jurispru
dence of labels. Cf. United States v. Kokinda, 497 U. S.
720, 740–743 (1990) (Brennan, J., dissenting). Conse
quently, we must sometimes look beyond an initial catego
rization. And, in doing so, it helps to ask whether a gov
ernment action burdens speech disproportionately in light
of the action’s tendency to further a legitimate government
objective. See, e.g., Ysursa v. Pocatello Ed. Assn., ante, at
1–4 (BREYER, J., concurring in part and dissenting in
part); Nixon v. Shrink Missouri Government PAC, 528 U.
S. 377, 404 (2000) (BREYER, J., concurring).
Were we to do so here, we would find—for reasons that
the Court sets forth—that the City’s action, while prevent
ing Summum from erecting its monument, does not dis
2 PLEASANT GROVE CITY v. SUMMUM
BREYER, J., concurring
proportionately restrict Summum’s freedom of expression.
The City has not closed off its parks to speech; no one
claims that the City prevents Summum’s members from
engaging in speech in a form more transient than a per
manent monument. Rather, the City has simply reserved
some space in the park for projects designed to further
other than free-speech goals. And that is perfectly proper.
After all, parks do not serve speech-related interests
alone. To the contrary, cities use park space to further a
variety of recreational, historical, educational, aesthetic,
and other civic interests. To reserve to the City the power
to pick and choose among proposed monuments according
to criteria reasonably related to one or more of these le
gitimate ends restricts Summum’s expression, but, given
the impracticality of alternatives and viewed in light of
the City’s legitimate needs, the restriction is not dispro
portionate. Analyzed either way, as “government speech”
or as a proportionate restriction on Summum’s expression,
the City’s action here is lawful.
Cite as: 555 U. S. ____ (2009) 1
SOUTER, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–665
_________________
PLEASANT GROVE CITY, UTAH, ET AL., PETITIONERS
v. SUMMUM
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[February 25, 2009]
JUSTICE SOUTER, concurring in the judgment.
I agree with the Court that the Ten Commandments
monument is government speech, that is, an expression of
a government’s position on the moral and religious issues
raised by the subject of the monument. See Board of
Regents of Univ. of Wis. System v. Southworth, 529 U. S.
217, 235 (2000) (noting government speech may “promote
[government’s] own policies or . . . advance a particular
idea”). And although the government should lose when
the character of the speech is at issue and its governmen
tal nature has not been made clear, see Johanns v. Live
stock Marketing Assn., 544 U. S. 550, 577 (2005) (SOUTER,
J., dissenting), I also agree with the Court that the city
need not satisfy the particular formality urged by Sum
mum as a condition of recognizing that the expression
here falls within the public category. I have qualms,
however, about accepting the position that public monu
ments are government speech categorically. See ante, at 8
(“Just as government-commissioned and government
financed monuments speak for the government, so do
privately financed and donated monuments that the gov
ernment accepts and displays to the public on government
land”).
Because the government speech doctrine, as JUSTICE
STEVENS notes, ante, at 1 (concurring opinion), is “recently
2 PLEASANT GROVE CITY v. SUMMUM
SOUTER, J., concurring in judgment
minted,” it would do well for us to go slow in setting its
bounds, which will affect existing doctrine in ways not yet
explored. Even though, for example, Establishment
Clause issues have been neither raised nor briefed before
us, there is no doubt that this case and its government
speech claim has been litigated by the parties with one eye
on the Establishment Clause, see ante, at 1 (SCALIA, J.,
concurring). The interaction between the “government
speech doctrine” and Establishment Clause principles has
not, however, begun to be worked out.
The case shows that it may not be easy to work out.
After today’s decision, whenever a government maintains
a monument it will presumably be understood to be engag
ing in government speech. If the monument has some
religious character, the specter of violating the Establish
ment Clause will behoove it to take care to avoid the ap
pearance of a flat-out establishment of religion, in the
sense of the government’s adoption of the tenets expressed
or symbolized. In such an instance, there will be safety in
numbers, and it will be in the interest of a careful gov
ernment to accept other monuments to stand nearby, to
dilute the appearance of adopting whatever particular
religious position the single example alone might stand
for. As mementoes and testimonials pile up, however, the
chatter may well make it less intuitively obvious that the
government is speaking in its own right simply by main
taining the monuments.
If a case like that occurred, as suspicion grew that some
of the permanent displays were not government speech at
all (or at least had an equally private character associated
with private donors), a further Establishment Clause
prohibition would surface, the bar against preferring some
religious speakers over others. See Wallace v. Jaffree, 472
U. S. 38, 113 (1985) (Rehnquist, J., dissenting) (“The
Clause was also designed to stop the Federal Government
from asserting a preference for one religious denomination
Cite as: 555 U. S. ____ (2009) 3
SOUTER, J., concurring in judgment
or sect over others”). But the government could well ar
gue, as a development of government speech doctrine, that
when it expresses its own views, it is free of the Estab
lishment Clause’s stricture against discriminating among
religious sects or groups. Under this view of the relation
ship between the two doctrines, it would be easy for a
government to favor some private religious speakers over
others by its choice of monuments to accept.
Whether that view turns out to be sound is more than I
can say at this point. It is simply unclear how the rela
tively new category of government speech will relate to the
more traditional categories of Establishment Clause
analysis, and this case is not an occasion to speculate. It
is an occasion, however, to try to keep the inevitable issues
open, and as simple as they can be. One way to do that is
to recognize that there are circumstances in which gov
ernment maintenance of monuments does not look like
government speech at all. Sectarian identifications on
markers in Arlington Cemetery come to mind. And to
recognize that is to forgo any categorical rule at this point.
To avoid relying on a per se rule to say when speech is
governmental, the best approach that occurs to me is to
ask whether a reasonable and fully informed observer
would understand the expression to be government
speech, as distinct from private speech the government
chooses to oblige by allowing the monument to be placed
on public land. This reasonable observer test for govern
mental character is of a piece with the one for spotting
forbidden governmental endorsement of religion in the
Establishment Clause cases. See, e.g., County of Alle
gheny v. American Civil Liberties Union, Greater Pitts
burgh Chapter, 492 U. S. 573, 630, 635–636 (1989)
(O’Connor, J., concurring in part and concurring in judg
ment). The adoption of it would thus serve coherence
within Establishment Clause law, and it would make
sense of our common understanding that some monu
4 PLEASANT GROVE CITY v. SUMMUM
SOUTER, J., concurring in judgment
ments on public land display religious symbolism that
clearly does not express a government’s chosen views.
Application of this observer test provides the reason I
find the monument here to be government expression.