Case stemming from Utah County’s ‘Ten Commandments’ monument now invoked in disputes with Confederate statues

Editor’s Note: This story originally appeared in the January 2022 edition of the Daily Universe Magazine.

A Ten Commandments monument in Pleasant Grove has been embroiled in a Supreme Court case over free speech by private citizens and government-promoted messages. (Veronique Maciel)

A small monument in a dark park in Pleasant Grove, Utah has sparked a Supreme Court case over the clash between private citizens’ free speech and government-promoted messages. The echoes are still felt today in the cases of maintaining or removing Confederate monuments.

In the landmark 2009 case, Pleasant Grove City v. pinnacle, a unanimous court ruled that a Ten Commandments monument in Pleasant Grove’s Pioneer Park was a government speech instead of a private speech. The decision also allowed the government to selectively choose which messages to commemorate at monuments in public parks.

Summum, a small religious sect based in Salt Lake City, filed a lawsuit against the town of Pleasant Grove for displaying the monument and for refusing a request to display a monument of Summum’s “Seven Aphorisms.”

The precedent of this case is invoked in courtrooms across the southeastern United States in battles over Confederate monuments.

According to a 2020 article in the Kentucky Law Journal by scholar Richard C. Schragger, the Pleasant Grove case could allow cities that want to get rid of Confederate monuments to override their state legislatures’ requirements for the monuments to remain. At the same time, cities that want to keep the monuments could oppose contrary efforts by claiming that the monuments are government talk and that their presence cannot be challenged under the First Amendment.

Schragger noted that more than 1,000 Confederate monuments exist in the United States. Three of them sit in Charlottesville, Va., where a clash between groups of protesters in 2017 drew attention to lingering issues of racial injustice. Virginia, Alabama, Tennessee and other states have attempted to pass legislation so that cities in those states cannot remove monuments.

In the Pleasant Grove case, Summum claimed that the aphorisms were part of the higher law originally given to Moses on Mount Sinai before he received the Ten Commandments. They include statements such as “Nothing rests; everything moves, everything vibrates” and “Summum is spirit, thought; the universe is a mental creation. The practices of the religion, founded in 1975 by Claude “Corky” Newell, include the Egyptian-inspired practice of mummification and meditation on aphorisms.

Summum argued that because the city of Pleasant Grove had denied their request to erect their “Seven Aphorisms” monument, the city was inhibiting their free speech and discriminating in favor of the Christian religion. The Tenth Circuit court agreed, reversing an initial ruling by a district court, saying that since public parks are public forums, the government was not authorized to accept a request to place a monument and refuse an installation request from another.

The Supreme Court again overruled the ruling, unanimously ruling that monuments are the government’s speech and that the government has the right to choose which messages occupy limited space in public parks. The Ten Commandments monument, donated by an organization with longstanding ties to the community and representing the historic pioneer heritage of the area, did not need to be removed and the Summum monument did not need to be accepted. .

The Court argued that although activities such as distributing leaflets or presenting lectures in a public park are protected by the freedom of speech clause, the same protection does not extend to monuments.

“I mean, you have a Statue of Liberty; must we have a statue of despotism? Chief Justice John Roberts asked during closing arguments in favor of Summum. “Or do we put any president who wants to be on Mount Rushmore?”

Pamela Harris, the attorney presenting Summum’s case, said Pleasant Grove should issue a statement publicly affirming that the monument is the official speech of the city, if the Ten Commandments monument is indeed the speech of the government. Judge Samuel Alito pushed back.

“If someone comes up to you and says I’d like to put a monument up in your front yard, and you say of course, go ahead, do it, don’t you agree to that, whatever say the monument, in a sense?” Similarly, judges ruled that a monument in a public park was government speech. The town of Pleasant Grove won the case 9-0.

What is government discourse?

Government speech, the ability of government not only to regulate speech but also to participate in it, is a relatively recent development in First Amendment jurisprudence. It all started in 1990 with Rust v. Sullivan, when the Court ruled that if the government is the speaker, it cannot be found guilty of First Amendment violations such as point of view discrimination. Traditionally, the role of government has been to protect the voice of those who are marginalized, not to nullify the voice by participating in the conversation itself.

The government’s ability to speak may not always be a negative thing: In 2003, the infamous Reverend Fred Phelps wanted to erect a statue of Matthew Shepard, the gay University of Wyoming student who was tortured and murdered, in a historic plaza in Casper, Wyoming. . The epitaph reads, “Matthew Shepard walked into hell on October 12, 1998…” Under the government speech doctrine, the city of Casper is free to decline Phelps’ request.

Government rhetoric means not everyone will have a monument in a public park – and indeed some organizations like Summum, with little representation in a town like Pleasant Grove, may not – but it also means that statues that are commemorated will be meant to be representative of the whole city.

However, government discourse is also extremely broad and sometimes difficult to distinguish from private discourse.

In Rust, government speech involved the ability of government-funded health care workers to recommend abortion, but Summum said privately donated monuments on government property constituted government speech. A later case, Texas v. Walker Division of Sons of Confederate Veterans, said privately sponsored images on government-issued license plates were government speech.

As legal scholar Helen Norton has noted, government speech goes beyond the easily recognizable State of the Union address and congressional resolutions – government speech is also smoky bear, warning us that “you only can prevent forest fires”.

The principle of transparency

BYU law professor John Fee said liability issues can arise when the government does not initially claim a message as its own speech, but then claims the government’s speech when sued, in order to protect itself. demands for freedom of expression.

In the case of Pleasant Grove, Fee said the city may have been hesitant to claim the Ten Commandments monument as a government speech due to concerns over the Establishment Clause, but opted to do so after Summum filed the lawsuit.

“You don’t want a government that’s trying to have it both ways, where they’re basically creating a forum that some people can access, but if they’re sued, their lawyers are just claiming government talk,” Fee said.

Fee said if the government is upfront about when it “speaks up”, citizens will know who to answer to. Norton calls this the “transparency principle” and argues that if individuals know when the government is speaking, they can hold the government accountable for the messages it chooses to promote using the political process.

“Under this principle of transparency, the government is not free to claim the defense of the government’s word to a First Amendment challenge unless it has clearly disclosed to the public the government source of the challenged message” , Norton said.

Application to Confederate and other monuments

Claiming that the government violates the free speech clause by allowing certain statues in public parks and not others (e.g. Confederate generals rather than civil rights heroes) is unlikely to work, based on Pleasant Grove Decision. The city will likely argue government discourse and exempt itself from scrutiny of the free speech clause.

That’s why Fee says the principle of transparency becomes important: If city and state governments are transparent about whether memorials constitute messages from government officials or individuals, citizens can take action. They know where to apply political pressure. In case of government speech, people can elect officials when they promote messages that citizens find offensive.

If the principle of transparency is applied, Fee said, the government discourse doctrine as enunciated by the Supreme Court has the potential to make government more accountable to the desires and preferences of its citizens, as city and county governments States will have to take ownership of the messages they promote. .

“Pay attention to the messages your own government sends and take responsibility,” Fee said. “Speech is powerful, and the government’s speech is powerful. Ultimately, it’s under the control of the people, and we are responsible for the content of anything the government says.

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