Paul E. McGreal[*]
Imagine that you are mayor of a small town that has a picturesque public park, removed from the town center, where your residents come to escape the hustle and bustle of everyday life. To make the space inviting, you have built a gazebo, a picnic area, and a playground for the local children. You have also allowed a local veterans group to erect a permanent monument honoring those from the town who died in war. Then, a local group asks permission to hold a political rally in the park. You deny the request, explaining that the park is for peaceful recreation and not for noisy demonstrations.
By denying the political rally, you have violated the First Amendment. The First Amendment severely limits the government’s power to place content-based restrictions on speech in traditional public forums, which the Court defines as public parks, streets, and other “places which by long tradition or by government fiat have been devoted to assembly and debate.” Further, government may not ban speech activities in such forums. Thus, your town must allow at least some assembly and debate in the park.
Next, a local religious group asks permission to place a permanent monument in the park. They explain that the monument will display the central tenets of their faith, which they consider their equivalent of the Ten Commandments. You deny this request and explain that the only permanent structures allowed are those that serve the park’s recreational purpose. The religious group points out, however, that you have already allowed placement of a veterans monument. You respond that a war memorial is a more appropriate message for a public park than a religious monument. The religious group catches your slip here. They explain that the park is a traditional public forum, and that you are excluding their speech (the monument) from that forum (the park) based on its content (a religious monument rather than a war memorial). As a result, they claim, your decision to exclude the religious monument violates the First Amendment. Incredulous, you object that a permanent monument must be different than more temporary speech, such as a rally or movable display. After all, if the city had to accept every monument offered by a private group, the park would soon look like a graveyard peppered with headstones. The religious group persists. Are they right?
This November, the Supreme Court will hear arguments on this question in City of Pleasant Grove v. Summum. The precise issue is whether placement of a permanent monument is part of the public’s right to use a traditional public forum. This question falls in a gap in current public forum doctrine, and the lower courts have reached conflicting results in applying that doctrine. On the one hand, the Tenth Circuit held in City of Pleasant Grove that permanent monuments are within the public’s right to use a traditional public forum. This ruling bars the government from regulating private monuments based on their content, effectively leaving a choice between allowing all or no such monuments. On the other hand, other courts have held that the public’s right to use a traditional public forum does not include placement of permanent structures. These courts typically announce the rule as a matter of judicial fiat, offering little, if any, reasoning. Their logic is internally inconsistent and, if applied generally, would lead to unacceptable consequences.
Both of the lower court approaches ultimately prove unsatisfactory because the decisions lack a principled basis to distinguish temporary speech from permanent monuments. This is not surprising given that the Supreme Court’s existing public forum doctrine provides no basis for doing so. The lower courts, then, have been trapped in the current doctrinal box.