The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Friday's decision by Judge Janet C. Hall (D. Conn.) in American Italian Women for Greater New Haven v. City of New Haven:
[T]he Columbus statue is government speech and, as such, AIW has no cognizable free speech interest in it. Indeed, the Supreme Court has directly foreclosed such a claim. In Pleasant Grove City, Utah v. Summum (2009), the Court "held that the messages of permanent monuments in a public park constituted government speech, even when the monuments were privately funded and donated." Where a city is "communicat[ing] governmental messages," as is the case here, it is "free to choose the [monument it displays] without the constraints of the First Amendment's Free Speech Clause." This is in contrast to when a city opens up a space "for citizens to express their own views," thereby creating a public forum and subjecting that forum to First Amendment constraints.
Here, the City has reserved the statue for its own expression and has not opened up Wooster Square for citizens to display statues of their own choosing there. Thus, the decision to display (or remove) the statue is government speech not subject to "the constraints of the First Amendment's Free Speech clause."
Clearly correct, I think. The government can choose which statues to put up and which not to put up, and does so all the time; it can likewise choose which ones to take down.