Government’s Monumental Speech
posted by Helen Norton
Yesterday a unanimous Supreme Court ruled that a city did not violate the First Amendment’s free speech clause when it rejected a religious organization’s request to erect a monument commemorating the “Seven Aphorisms of Summum” (a series of statements that Summum adherents believe that God gave to Moses) in a city park that already featured a number of monuments, including a Ten Commandments monument donated to the city by the Fraternal Order of the Eagles.
Among the issues presented by this case was whether the city can claim its choice of monuments as its own expression – i.e., as government speech. In past cases, the Court has made clear that government’s own speech is “exempt from First Amendment scrutiny,” leaving the government generally free to adopt and deliver whatever message it chooses when it speaks on its own behalf. Those unhappy with their government’s expressive choices can appropriately seek redress through political accountability measures — like lobbying the government to change its position or voting for new government decisionmakers — rather than through First Amendment litigation.
Writing for eight members of the Court, Justice Alito concluded that “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. . . . Government decisionmakers 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 meant to convey and have the effect of conveying a government message, and they thus constitute government speech.”
But this still leaves the question of how courts should, as a general matter, decide whether contested speech is actually the government’s. For this reason Justice Souter separately concurred to express his “qualms” about “accepting the position that public monuments are government speech categorically” and urged the Court to “go slow” in defining the bounds of government speech. Cautioning against a per se approach to government speech disputes, he suggested that courts should instead ask “whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech . . . .”
In an article in last year’s Boston University Law Review, I proposed a test that seeks to address the concerns of Justice Souter (and others) about an uncabined and undertheorized approach to goverment speech. I urge that a public entity seeking to claim the government speech defense should establish that the contested expression is governmental in origin both formally (i.e., that the government claimed the speech as its own when it authorized the communication) and functionally (i.e., that onlookers understand the speech to be the government’s at the time of its delivery). This approach identifies two points at which government must expose its expressive choices to the public — when it decides to express a certain idea and when it actually communicates that idea — and thus seeks to maximize prospects that members of the public will have the information necessary to hold their government accountable for its expressive choices if they so desire.
Under this framework, I agree that the city’s choice of monuments should be considered its own speech. Like other speakers, government may use its own property for its own expressive purposes and, indeed, such choices provide valuable information to the public about its government’s values. The city can — and, in my opinion, did — claim the speech as its own when it transparently took ownership of certain monuments and selected them for permanent display in its own park (the respondent urged that the city be required to enact an official resolution publicly adopting “the message” to be conveyed by its monuments; while I agree that this is especially transparent, I do not agree that this is the only means by which the city may claim speech as its own in a way that facilitates political accountability). And absent express indications to the contrary, onlookers generally understand a message to spring from the owner of the property on which it appears. For this reason, a city’s choice to honor Robert E. Lee but not Ulysses Grant in a city park remains transparently governmental expression, as does a mayor’s decision to display only art advocating racial equality for its observance of Dr. King’s birthday.
Note, however, that constitutional constraints other than the free speech clause may still limit governmental speech. For this reason, even if a government’s choice of monuments is government speech exempt from free speech clause scrutiny, that government may run afoul of the establishment clause if it uses its speech to celebrate majority but not minority religions. (The Summum plaintiffs, however, did not allege a federal establishment clause violation in their complaint.)