Editor’s note: This story appeared in the January 2022 edition of The Daily Universe Magazine.
A small monument in an obscure park in Pleasant Grove, Utah, ignited a Supreme Court case on the clash between the free speech of private citizens and messages promoted by the government. The echoes are still being felt today in cases involving the maintaining or removal of Confederate monuments.
In the landmark 2009 case Pleasant Grove City v. Summum, a unanimous Court ruled a Ten Commandments monument in Pleasant Grove’s Pioneer Park as government speech instead of private speech. The decision also made it so the government could selectively choose which messages are memorialized in monuments in public parks.
Summum, a small religious sect based in Salt Lake City, brought a lawsuit against the city of Pleasant Grove for displaying the monument, and for declining a request to display a monument of Summum’s “Seven Aphorisms.”
The precedent from that case is being invoked in courtrooms across the Southeastern United States in battles over Confederate monuments.
According to a 2020 article in the Kentucky Law Journal by scholar Richard C. Schragger, the Pleasant Grove case could enable cities that want to get rid of Confederate monuments to overrule their state legislatures’ demands that the monuments stay. At the same time, cities that want to keep the monuments could oppose efforts to the contrary by claiming the monuments are government speech and their presence cannot be challenged under the First Amendment.
Schragger recorded that more than 1,000 Confederate monuments exist in the United States. Three of them sit in Charlottesville, Virginia, where a clash between groups of protesters in 2017 brought attention to ongoing issues of racial injustice. Virginia, Alabama, Tennessee and other states attempted to pass legislation so that cities in those states could not remove the monuments.
In the Pleasant Grove case, Summum claimed the Aphorisms are part of the higher law initially given to Moses on Mount Sinai before he was given the Ten Commandments. They include statements like “Nothing rests; everything moves, everything vibrates” and “Summum is mind, thought; the universe is a mental creation.” Practices of the religion, founded in 1975 by Claude “Corky” Newell, include the Egyptian-inspired practice of mummification and meditation on the aphorisms.
Summum argued that because the city of Pleasant Grove denied their request to erect their “Seven Aphorisms” monument, the city was inhibiting their free speech, and discriminating in favor of the Christian religion. The Tenth Circuit court agreed, reversing an initial decision made by a district court, saying that because public parks are public forums, the government was not allowed to accept a request to place one monument and deny a request to place another.
The Supreme Court reversed the decision again, unanimously deciding that monuments are government speech, and the government has the right to choose which messages take up limited space in public parks. The Ten Commandments Monument, donated by an organization with longstanding ties to the community and representing the historical pioneer heritage of the area, did not need to be removed and the Summum monument was not required to be accepted.
The Court argued that though activities like distributing leaflets or giving talks in a public park are protected under the free speech clause, the same protection does not extend to monuments.
“I mean, you have a Statue of Liberty; do we have to have a statue of despotism?” Chief Justice John Roberts asked during the oral arguments in favor of Summum. “Or do we have to put any president who wants to be on Mount Rushmore?”
Pamela Harris, the lawyer presenting oral argument for Summum, said Pleasant Grove should issue a statement publicly claiming that the monument was the official speech of the city, if the Ten Commandments monument was indeed government speech. Justice Samuel Alito pushed back.
“If somebody came up to you and said I'd like to put up a monument in your front yard, and you said sure go ahead, do that, aren't you accepting that, whatever the monument says, in a sense?” Similarly, the judges decided a monument in a public park was government speech. The city of Pleasant Grove won the case 9-0.
What is government speech?
Government speech, the ability of the government to not merely regulate speech but also to participate in it, is a relatively recent development in First Amendment jurisprudence. It began in 1990 with the case Rust v. Sullivan, when the Court ruled that if the government is the speaker, it can’t be found guilty of First Amendment violations such as viewpoint discrimination. Traditionally the government’s role has been to protect the speech of those who are marginalized, not to void speech by participating in the conversation itself.
The ability of government speech may not always be a negative thing: In 2003, the infamous Reverend Fred Phelps wanted to erect a statue of Matthew Shepard, the gay University of Wyoming student who was tortured and murdered, in a historic plaza in Casper, Wyoming. The epitaph would say: “Matthew Shepard entered Hell October 12, 1998…” According to the government speech doctrine, the city of Casper is free to decline Phelps’ request.
Government speech means that not everyone will have a monument in a public park — and indeed, some organizations like Summum, with little representation in a city like Pleasant Grove, may not — but it also means the statues that are memorialized will supposedly be representative of the entire city.
However, government speech is also extremely broad and at times difficult to distinguish from private speech.
In Rust, government speech involved the ability of government-funded healthcare workers to recommend abortion, but Summum said privately donated monuments on government property constituted government speech. A later case, Texas v. Walker Division of Sons of Confederate Veterans, said privately-sponsored images on government-issued license plates were government speech.
As legal scholar Helen Norton noted, government speech goes beyond the easily-recognizable State of the Union address and congressional resolutions — government speech is also Smoky Bear, warning us that “Only you can prevent wildfires.”
The Transparency Principle
BYU law professor John Fee said problems with accountability can arise when the government initially doesn’t claim a message as their own speech, but then later claims government speech when they get sued, in order to protect itself from free speech claims.
In the case of Pleasant Grove, Fee said the city may have been reluctant to claim the Ten Commandments monument as government speech because of concerns with the Establishment Clause, but chose to do so after Summum brought the lawsuit.
“You don’t want a government that’s trying to have it both ways, where they are essentially creating a forum that is available to some people, but if they get sued, their lawyers simply claim government speech,” Fee said.
Fee said if government is upfront about when it is “speaking,” citizens will know whom to hold accountable. Norton calls this the “transparency principle” and argues that if individuals know when the government is speaking, they can hold the government accountable for the messages it chooses to promote by using the political process.
“Under this transparency principle, the government is not free to claim the government speech defense to a First Amendment challenge unless it has made the contested message’s governmental source clear to the public,” Norton said.
Application to Confederate and other monuments
Claiming the government is violating the Free Speech clause by allowing some statues in public parks and not others (for example, Confederate generals rather than Civil Rights heroes) is unlikely to work, based on the ruling of Pleasant Grove. The city will likely make the government speech claim and exempt itself from free speech clause scrutiny.
This is why Fee says the transparency principle becomes important: If city and state governments are transparent about whether memorials constitute messages from government officials or private individuals, citizens can take action. They know where to apply political pressure. In cases of government speech, people can vote public servants out of office when they promote messages the citizenry finds offensive.
If the transparency principle is applied, Fee said government speech doctrine as laid down by the Supreme Court, has the potential to make government more responsible to the desires and preferences of its citizens, because city and state governments will have to own the messages they promote.
“Pay attention to what messages your own government is sending and take responsibility for those,” Fee said. “Speech is powerful, and government speech is powerful. Ultimately, it’s in the control of the people, and we are responsible for the content of whatever the government speaks.”