The following is an opinion of the U.S. Supreme Court.
Municipalities and other governmental entities are limited by the Free Speech Clause of the First Amendment of the U.S. Constitution in their ability to regulate expression by private citizens. It is important to determine whether a restriction on speech occurs in a public forum or a nonpublic forum. A public forum may be a “traditional forum,” such as streets, sidewalks and public parks, or a “designated public forum,” such as a public comment period during a public meeting. In either case, restrictions based on content of the speech are subject to strict scrutiny, and restrictions based on viewpoint are prohibited. In a nonpublic forum, restrictions are more easily imposed. (See “Public Meetings and Freedom of Speech: When Do Citizens Have a Right to Speak?” March 2009, New Hampshire Town and City; and Sutliffe v. Town of Epping, regarding access to a town website, summarized in Court Update, February 2009, New Hampshire Town and City, p. 31.) This case shows that it is also crucial to determine whether the situation involves government regulation of private speech or speech by the government itself.
Pleasant Grove City has, in an historic district, a public park in which 15 monuments are maintained, 11 of them having been donated by private organizations. In 1971, the Fraternal Order of Eagles donated a monument containing the Ten Commandments. Summum is a religious organization founded in Salt Lake City in 1975. A central belief of Summum is that shortly before Moses received the Ten Commandments on Mt. Sinai, he received tablets from God inscribed with the Seven Aphorisms. Moses shared the Seven Aphorisms with a select group but, believing the Israelites unready for the Aphorisms, he destroyed the tablets and returned to the mountain for the Ten Commandments. In 2003, Summum offered the City a stone monument containing the Seven Aphorisms. The City declined the offer, citing its policy that requires monuments to be related to local history or donated by groups with longstanding ties to the community. Summum brought suit in federal court alleging that the City had violated the Free Speech Clause of the First Amendment by accepting the Ten Commandments monument but rejecting the Seven Aphorisms monument in the public park, a “traditional forum” for speech. (A claim that the City’s decision violated the First Amendment prohibition against establishment of religion was not pursued.)
The U.S. Supreme Court unanimously rejected Summum’s claim. The Court held that the placement of a permanent monument in a public park is a form of government speech. Forum analysis was inapplicable. “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.… A government entity has the right to ‘speak for itself.’” In choosing to accept some donated monuments and not others, the government is engaging in “selective receptivity,” typically taking into account esthetics, history and local culture in deciding what message it wants to convey.
The “government speech” doctrine is a relatively recent development in Free Speech jurisprudence. Summum claimed that the City should be required to formally adopt “the message” that a monument conveys in order to avoid the subterfuge of favoring some private speakers’ viewpoints over others. The Court rejected the need for a formal statement of the message, noting that monuments often convey more than one message. The Statue of Liberty was cited as a monument that meant one thing to its creator and donor but has taken on other meanings over time. However, the Court acknowledged that “[t]here may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech.…” Two of the concurring Justices wrote opinions stressing the need for caution in defining the “government speech” doctrine because of the potential for abuse.
Municipal officials must be vigilant about Free Speech implications when they regulate the speech of citizens in public meetings and other venues such as public access cable television and town websites. They must also be careful about the ways they express their own views on policy issues to the public. The “government speech” doctrine recognizes that the government itself must speak in order to function, but, as the Supreme Court notes, delivery of the government’s “message” can be abused as a subterfuge to unfairly promote favored viewpoints on the issues of the day.