Summum, the Vocality of Public Places, and the Public Forum

I. INTRODUCTION Pleasant Grove City v. Summum1 unanimously held that a city's decision to exclude a private religious monument offered by adherents of the Summum religion from a municipal park was a form of government speech exempt from Free Speech Clause scrutiny. According to the Court, the Ten Commandments statue already located on park grounds had been adopted by die city as its own speech, thus negating any claim of content discrimination.2 With regard to the acceptance and placement of permanent monuments, die Court held that public forum principles were simply "out of place."3 If Summum were merely a holding regarding the placement of permanent monuments in public parks, it would be rather unremarkable. However, notwithstanding the Court's denial that public forum principles were at all implicated,4 the decision raises important questions about the viability of the public forum concept and about the balance of power and rights in public places.5 Summum is the first decision to hold that public forum principles are "out of place" in a traditional public forum6 - a place which has, according to the Court, "time out of mind . . . been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."7 It is also the first to treat a public park as a channel of governmental as opposed to private speech. In addition, Summum is arguably the first Supreme Court case to take the vocality of public places - the manner in which they convey meaning - seriously. Indeed Justice Alito's opinion reads, in part, like a graduate term paper on the communicative sociology of public monuments and places. In that discussion, the Court indicates, again for the first time, that parks and other public places may convey governmental image or "identity" claims.8 Insofar as the result is concerned, the decision in Summum is facially unassailable. Just imagine the chaos that would ensue if governments were required to accept either all privately donated monuments or none at all. I do not intend to challenge the result. Rather, I want to focus on some of the broader implications of the decision's reasoning with regard to the concept of the public forum. Summum suggests that government speakers occupy something of a preferred position even in traditional public forums. This preferred position may permit governments to demote and commandeer portions of or perhaps entire public places like parks, plazas, and streets.9 It may also allow officials to regulate or prohibit private speech that is inconsistent with a governmental message conveyed in a public place. Because it is ostensibly speaking, the government need not comply with Free Speech Clause limits on subject matter and viewpoint discrimination.10 Summum may allow these results whether or not the governmental entity can identify the message it seeks to convey to the public.11 This symposium contribution examines the additional layer of complexity Summum adds to the government speech doctrine. It pays particular attention to the decision's potential implications with respect to the balance of power and rights in traditional public forums such as parks, plazas, and streets. I argue that Summum's rationale is based upon a false equivalence between public and private ownership, ignores the traditional functions of public forums, and turns the fundamental premise of the public forum concept - that public places like parks are held in trust by governments for the benefit of the people - on its head. Part II discusses the Court's treatment of the public forum doctrine and principles of private versus public ownership, and its observations regarding the manner in which governments communicate in and through public places. Part III claims that the logic and rationale of Summum undermine some of the fundamental premises of the public forum concept. Based on public ownership principles, the decision conceptualizes traditional public forums, such as parks, as channels of governmental expression. …