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United States: Constitution Does Not Require Government Neutrality in Erecting Permanent Monuments in Parks

(Mar. 9, 2009) The United States Supreme Court recently ruled that the First Amendment to the U.S. Constitution does not require municipalities to be neutral with respect to messages conveyed by privately donated permanent monuments erected in public parks.

Pioneer Park, a public park in Pleasant Grove City, Utah, has 11 permanent, privately donated displays, including one of the Ten Commandments. Summum, a religious organization founded in 1975, requested permission to erect a monument setting forth the religion's Seven Aphorisms. The city rejected the request, maintaining that it limited park monuments to those either directly related to the city's history or donated by groups with longstanding community ties. Summum filed suit, claiming that the city had violated the First Amendment's Free Speech Clause by accepting the Ten Commandments monument but rejecting Summum's monument. The district court denied Summum's preliminary injunction request, but the U.S. Court of Appeals for the Tenth Circuit reversed, ruling that the park was a public forum for which content-based restrictions on speech are subject to strict scrutiny under the First Amendment, and ordering the city to erect the monument.

The Supreme Court reversed the Tenth Circuit, holding that the placement of a permanent monument in a public park is a form of government speech, and is therefore generally not subject to the Free Speech Clause. The Court found that in erecting permanent monuments, municipalities engage in their own expressive conduct, reasoning that permanent monuments typically portray what the government decision-makers view as appropriate for the location based on esthetics, history, and local culture. The Court said that First Amendment doctrine in which content-based government restrictions on speech are subject to strict scrutiny applies where government-owned property can accommodate a large number of public speakers without defeating the essential function of the property. The Court noted that this is not the case with permanent monuments in public parks, since parks can only accommodate a limited number of monuments. (Pleasant Grove City v. Summum, No. 07-665 (Feb. 25, 2009), available at