Not all public monuments are necessarily government speech. The government speech doctrine should apply only when a reasonable and fully informed observer would identify the speech as government speech rather than private speech that the government permits in a public forum. The case could have reached the same outcome by treating the acceptance of a monument as an implicit government endorsement of its message. The majority properly limits the scope of the government speech doctrine, which has questionable origins and should be applied only to the extent that it does not conflict with other constitutional doctrines. As a result, the traditional forum analysis should not be applied in this situation because it likely would lead to the government closing the forum. Only a finite number of monuments may be displayed in any given park, and it is difficult for governments to preserve viewpoint neutrality by incorporating all possible viewpoints unless parks are either crowded with monuments, or older monuments are removed.īroadly applying First Amendment principles in this context would require cities to accept or refuse all privately donated monuments, which would not be a practice result. While defining a certain type of expression as government speech should not allow the government to favor certain viewpoints over others, the government is not required by the First Amendment to publicly endorse any message conveyed by a privately donated monument. Future proposed monuments were subject to selection criteria specifically defined by the City. These monuments were government speech because the City maintained final approval authority over them and owned most of the monuments in the Park. This is because governments have a selective process in determining which of these privately donated monuments will be displayed, and city parks play a critical role in defining a city's identity. Even if a monument is privately financed and donated, it becomes government speech if it becomes a public display, just as if it had been commissioned and financed by the government. Permanent monuments on public property are more properly classified as government speech, though, since this is their traditional function.
Any content-based restrictions on this speech must meet the strict scrutiny standard of review, so they must be narrowly tailored to a compelling government interest. Private speech in a public forum may be subject to very few restrictions, which are mostly limited to time, place, and manner rules. The political process is used to hold government actors accountable for their speech.
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However, the government may not exercise its free speech rights in a way that violates the Establishment Clause or other laws or regulations. The First Amendment does not place restrictions on government speech, and the government may use its free speech rights when it receives private assistance for the purpose of disseminating a message that is controlled by the government. The lower courts ruled that a public park is a public forum under First Amendment doctrines, so the City was required to accept the Seven Aphorisms monument. When the city refused to construct this monument, Summum sued it for violating the First Amendment because it had permitted a Ten Commandments monument but not the Seven Aphorisms monument. It would be comparable in appearance to the Ten Commandments monument.
Summum asked the City to build a monument containing the Seven Aphorisms of Summum, which were central to its religion, in the same park. Pioneer Park in Pleasant Grove City contained a monument to the Ten Commandments among its 11 permanent, privately donated displays.
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