Free Speech

Monumental Terror


In a case the U.S. Supreme Court will hear tomorrow, followers of Summum, a 33-year-old sect that (per The New York Times) "contains elements of Egyptian faiths and Gnostic Christianity," are fighting for the right to erect a monument listing their Seven Aphorisms alongside a Fraternal Order of the Eagles monument displaying the Ten Commandments in a city park. Last year a panel of the U.S. Court of Appeals for the 10th Circuit ruled that Pleasant Grove City, Utah, violated Summum members' First Amendment right to freedom of speech by rejecting the monument they proposed to donate. The government "may not take sides in a theological debate," the church argues. Critics of the decision, including the Bush administration and various cities and states, say it would require governments that accept any donated displays on public property to approve virtually every other proposal, no matter how hideous, offensive, or idiotic. "Accepting a Statue of Liberty," the city says, should not "compel a government to accept a Statue of Tyranny." Tenth Circuit Judge Michael McConnell, who unsuccessfully urged the full court to rehear the case, has more in the same vein:

This means that Central Park in New York, which contains the privately donated Alice in Wonderland statue, must now allow other persons to erect Summum's "Seven Aphorisms," or whatever else they choose (short of offending a policy that narrowly serves a "compelling" governmental interest).  Every park in the country that has accepted a VFW memorial is now a public forum for the erection of permanent fixed monuments; they must either remove the war memorials or brace themselves for an influx of clutter. 

Significantly, the religious nature of the donated monuments is not relevant to the free speech question (though it would be to an Establishment Clause challenge). These cases happen to involve Ten Commandments monuments, but it could work the other way. A city that accepted the donation of a statue honoring a local hero could be forced, under the panel's rulings, to allow a local religious society to erect a Ten Commandments monument—or for that matter, a cross, a nativity scene, a statue of Zeus, or a Confederate flag.

The Summum church says governments that want to avoid such problems can decline to accept donated monuments (thereby creating a "public forum" where viewpoint discrimination is constitutionally suspect) or explicitly adopt the donors' message as their own (thereby transforming private speech into government speech). It does not mention park privatization as a third option. 

In the June issue of reason, Jesse Walker noted how a similar controversy in Crossville, Tennessee, led to just the sort of monument proliferation McConnell fears.