Pleasant Grove City v. Summum – Oral Argument – November 12, 2008

Media for Pleasant Grove City v. Summum

Audio Transcription for Opinion Announcement – February 25, 2009 in Pleasant Grove City v. Summum

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John G. Roberts, Jr.:

We’ll hear argument first this morning in Case 07-665, Pleasant Grove City v. Summum.

Mr. Sekulow.

Jay Alan Sekulow:

Mr. Chief Justice, and may it please the Court: The Tenth Circuit erred when it held that the First Amendment Free Speech Clause forces Pleasant Grove City to accept and erect on its property a private party’s donated, unattended, permanent monument.

The decision suffers from two constitutional defects: First, the court’s conclusion that a donated Ten Commandments monument constitutes private speech rather than Government speech is wrong.

Here each of the monuments on display in Pioneer Park have been selected by the Government, are owned by the Government, controlled by the Government, and are displayed on Government property.

When the Government is speaking, it is free from the traditional free speech constraints of the First Amendment.

Second, the court compounded its error by further concluding that Pioneer Park is a traditional public forum for the erection of permanent, unattended monuments by private parties.

John G. Roberts, Jr.:

Mr. Sekulow, you’re really just picking your poison, aren’t you?

I mean, the more you say that the monument is Government speech to get out of the first, free speech — the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause.

If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking — supporting the Ten Commandments?

Jay Alan Sekulow:

Well, the Ten Commandments here was displayed in Pioneer Park, as the mayor said, Mayor Cook, in 1971, to show the pioneer heritage of the community.

This was a community of pioneers on a quest for religious liberty.

That’s why this town was established.

There is no Establishment Clause claim, Mr. Chief Justice, here.

It would be inconsistent with the relief that the Respondents are really seeking.

Anthony M. Kennedy:

Well–

Jay Alan Sekulow:

And I think that — yes, Justice Kennedy.

Anthony M. Kennedy:

–And I don’t want to interrupt your answer to the Chief Justice because I think it’s critical, critical to your argument.

As a procedural matter, I thought that the Establishment Clause issue was raised in the initial complaint.

Are you taking the position it’s now waived or something?

Jay Alan Sekulow:

Well, there was no Federal Establishment Clause complaint at all.

There was a State–

Anthony M. Kennedy:

It was under the State?

Jay Alan Sekulow:

–It was under the State of Utah’s Establishment Clause.

It was raised in the complaint.

It was not the basis upon which the injunction was sought, and the Tenth Circuit noted that it was waived.

Anthony M. Kennedy:

If you prevail, the action should be dismissed, as far as you’re concerned?

Jay Alan Sekulow:

Yes.

Anthony M. Kennedy:

All right.

Jay Alan Sekulow:

Just let me–

Anthony M. Kennedy:

Then getting back to the Chief Justice’s point, it does seem to me that if you say it’s Government speech that in later cases, including the case of the existing monument, you’re going to say it’s Government speech and you have an Establishment Clause problem.

I don’t know if — I’m not saying it would necessarily be resolved one way or the other, but it certainly raises–

Jay Alan Sekulow:

–Well, I think from an–

Anthony M. Kennedy:

–an Establishment Clause problem.

Jay Alan Sekulow:

–If there was an Establishment Clause claim, Justice Kennedy, which is not here, Van Orden forecloses it.

This monument is very similar to what was at play in Van Orden.

And here the city stated the reason that they accepted and erected this monument, accepted the donation from the Fraternal Order of Eagles, was to show something and to represent their pioneer heritage, but–

Antonin Scalia:

I suppose it depends on what the Government speech consists of, what it is the Government is saying about the Ten Commandments.

If the Government is saying the Ten Commandments are the word of God that’s one thing, and if the Government is saying the Ten Commandments are an important part of our national heritage, that’s something else.

Jay Alan Sekulow:

–That’s — and precisely, Justice Scalia, that’s exactly what Mayor Cook in fact, at the unveiling ceremony, stated that this will serve to remind citizens of their pioneer heritage and the founding of–

Anthony M. Kennedy:

Do you have to–

Jay Alan Sekulow:

–their community–

Anthony M. Kennedy:

–Did the NEA — Finley v. NEA, the Court didn’t treat that as Government speech.

Jay Alan Sekulow:

–Right.

Anthony M. Kennedy:

Or am I — is that the–

Jay Alan Sekulow:

No.

You’re correct.

Those were speech selection cases.

It think it clearly — that the actions here of the Government, of the City Council, falls neatly within Forbes, Finley, and the plurality in American Library Association.

The Government–

Ruth Bader Ginsburg:

Before we get — before we get away from the Government, the Establishment Clause, you said, well, Van Orden answered that, but did it?

Because you don’t have here a 40-year history of this monument being there, and nobody seems to be troubled by it.

Jay Alan Sekulow:

–There is a 36-year history here.

This monument has been on display since 1971.

So this monument has been there a long time, and–

Antonin Scalia:

I think 38 is the cut-off point.

Jay Alan Sekulow:

–Is that the cut-off?

[Laughter]

Perhaps I miscounted.

It may be 38.

John G. Roberts, Jr.:

Mr. Sekulow–

Jay Alan Sekulow:

Yes, Mr. Chief Justice.

John G. Roberts, Jr.:

–when you come upon this, if somebody comes upon this monument in the park, how are they supposed to tell whether it’s Government speech or private speech?

Jay Alan Sekulow:

Well, of course the face of it, Mr. Chief Justice, states on the face of the monument that it’s presented to Pleasant Grove City in Utah County by the Fraternal Order of Eagles.

As far as a Government speech as far as ownership and control goes under a Johanns analysis, different from Finley and Forbes and that context, here the Government exercised control.

After all, they allowed it, accepted it, and allowed it to be erected on their property.

Under Utah law, all right, title, and interest to that property transferred.

But I would say with regard to the endorsement, if you will, or the Establishment Clause issue, really the context here, as this Court has consistently stated within the Establishment Clause cases matter — this Court has a depiction of Moses holding the Ten Commandment in the frieze of the courtroom with the words written in Hebrew.

That’s not an endorsement of the religion or of the commandments.

It’s representative of the history.

Ruth Bader Ginsburg:

In the context of all other lawgivers.

This is a stand-alone Ten Commandments and you don’t see, I don’t think, anywhere

“I am the Lord thy God. “

That’s not shown.

Jay Alan Sekulow:

No, the words on the Court’s frieze are “steal”, “murder”, “adultery” in Hebrew.

Ruth Bader Ginsburg:

Yes.

Jay Alan Sekulow:

Very different in that context.

But as far as the actual language of what’s going on within the park itself, Justice Ginsburg, this is not a monument standing alone.

There are 15 other displays in this Pioneer Park.

It’s called–

Antonin Scalia:

Is this a challenge to the Ten Commandments monument?

Jay Alan Sekulow:

–It’s not.

This is not an Establishment Clause case.

Antonin Scalia:

I thought this case did not involve an Establishment Clause challenge.

Why are we–

Jay Alan Sekulow:

There is no Establishment Clause.

It’s not a basis upon which the injunction was sought, and the Tenth Circuit specifically held it was waived.

David H. Souter:

Mr. Sekulow, can I just ask: At what point in the litigation did you first raise the Government speech argument?

Jay Alan Sekulow:

At the Tenth Circuit.

The Tenth Circuit, the existing law in the Tenth Circuit in the Summum line of cases mandated a private speech determination, even if the speech was controlled or known by the Government, if it originated with a third party.

Jay Alan Sekulow:

As soon as we were before — and under Tenth Circuit rules that’s binding, of course, on the district court and on the panel.

But even in the panel brief, we raise the issue of Government speech and the Court addressed it both as to — and, Justice Kennedy, going back to your point — both as to Government speech and to the speech selection cases of Forbes, Finley, and American Library Association.

And I think that those cases as well point to what’s at issue here.

Governments in the business of governing and determining the parks and the landscape of the parks make these kind of decisions.

David H. Souter:

Isn’t the tough — isn’t the tough issue here not so much whether there is Government speech.

I will assume and I do indeed assume that there is.

Isn’t the tough issue here the claim that there is — is in fact a mixture, that it is both Government and private.

And the argument for its continuing to be private speech I take it is simply the Eagles identification with the presentation and their espousal of what the monument says.

How — how do you think we ought to deal with the mixture issue.

Jay Alan Sekulow:

Well, I think the fact that it originated, that the monument originated by the Eagles as a third party, doesn’t in any way take away from the fact that in this particular case, and in most cases involving donated monuments, which, as the United States would point to, most of the monuments in parks are donated by or originated with third parties–

David H. Souter:

They probably are, but most of them — and you correct me if I’m wrong here.

But I don’t suppose that most of them — most of them contain as part of — in a prominent place in the monument itself contain the statement that, you know, this is the gift of or the position of or what-not of X, Y or Z, whereas this monument does.

Jay Alan Sekulow:

–Most of them, Justice Souter, do actually have statements.

In fact, a perfect example would be at Gettysburg National Military Park a number of those monuments, most of them, are donated by or originated by third parties.

They’ll often say “Donated by”, for instance, “the Father Corby”–

David H. Souter:

We may have more cases coming.

Jay Alan Sekulow:

–I hope not.

David H. Souter:

But tell me, what is the criterion that we should use to decide what the significance of the private identification is?

Jay Alan Sekulow:

I think the key should be, as this Court alluded to in Johanns, the issue of control, who controls the message ultimately here.

And the fact is the Statue of Liberty originated by the Franco-American Union — was originated by a third party.

The United States by resolution accepted it.

At that point title transfer.

Ruth Bader Ginsburg:

If that — if we accept that there is Government speech, I think Justice Souter’s question is isn’t this really the Government endorsement of the Eagles’ message?

I mean, the Eagles are all over this monument, their symbol of the eagle, and the Eagles want it to be known that this is their monument.

Indeed, I think in Van Orden wasn’t the — in the district court there, wasn’t the statement, well, this — Texas did this in recognition of the good work that the Eagles do in preventing — help try to prevent juvenile delinquency.

Jay Alan Sekulow:

Right.

And I think that actually points to why that once it’s controlled and owned by the Government the fact that it originated in the third party, Justice Ginsburg, changes the equation for ownership and control to the Government.

David H. Souter:

Well, if it does, it changes it, as I understand your answer, by eliminating the private aspect of the speech.

So that your real answer to me is it’s not a mixture.

Jay Alan Sekulow:

It’s not.

David H. Souter:

And there ceases to be a mixture the moment the Government accepts it.

Jay Alan Sekulow:

Once — right, title, and interest vest under Utah law in the Pleasant Grove City upon acceptance and at that point it is owned and controlled by the city.

And the fact that it was originally created — and Justice Ginsburg, you’re correct, the district court and also the court of appeals in Van Orden stated that it was originated as a moral guidance for youth.

That was the reason that the Fraternal Order of Eagles developed.

The State of Texas said: We’re going to honor the Eagles.

That was their reason, as well as showing the role of the Ten Commandments and the rule of law.

And then the Third — excuse me, Justice Stevens.

John Paul Stevens:

Can I ask you question that’s kind of in the background of the case?

Jay Alan Sekulow:

Sure.

John Paul Stevens:

Assume you didn’t have the policy that you do have, but it was perfectly clear that the city decided not to put up this monument because it disagreed with the message of the monument.

Whether you call it Government speech or private speech, would that be permissible?

Jay Alan Sekulow:

It wouldn’t be a First Amendment free speech claim.

It might raise an establishment clause, an equal protection kind of clause analysis case, but not under the basis upon which Respondents have sought here.

I think that’s important to point out.

The basis upon which they sought access, in you will, is a species of an equal access claim.

But of course our position is the Government hasn’t established anything by accepting the monument.

Anthony M. Kennedy:

–But, Justice Stevens’s question is important, maybe not for your case but for other cases.

We are deciding this for other cases to arise, and why isn’t he correct that if you don’t like the message then that raises a content-based claim?

Jay Alan Sekulow:

Because if the Government is speaking, if it’s the Government’s message, they’re of course allowed to engage in content-based statements.

The Statute of Liberty was a statement of liberty enlightening the world.

I could give a list of monuments that do that.

Anthony M. Kennedy:

I understand that.

Jay Alan Sekulow:

That’s what they did.

Anthony M. Kennedy:

But it doesn’t seem to me that you have to make the Government speech argument for you to make the argument that you just made.

Jay Alan Sekulow:

No, not necessarily, because even under the speech selection cases — I mean, that’s correct — Governments make determinations of what they are going to put in their parks to communicate a message.

That’s very different from a situation I think where the Tenth Circuit panel was incorrect and Respondents are incorrect: They confuse the issue of the Government actually creating a forum or a venue for speech — and a perfect example of that would be here, with ownership and control vesting in the city.

Very different in that situation than the typical equal access case, where the Government merely opens up its facilities for a variety of viewpoints, Justice Stevens, and then cannot engage in content-based or viewpoint-based–

David H. Souter:

So the city, in effect, if the city says, we are going to have a designated ten-acre field in which anybody can put up a monument, but you can’t because we don’t like your message, there’s a First Amendment problem.

But if the city hides the ball in effect and says in effect, we’ll — we’ll let monuments be placed on — we will accept monuments from people who want to place them on our property if the monuments have some kind of an arguable historical connection or a connection with people with long association with the community, as long as they have that sort of criterion in mind then they can select any way they want to?

Jay Alan Sekulow:

–Justice Souter, there is a fundamental difference between opening up a forum, taking acres of a park and saying everybody gets to go in, and another situation where the Government is clearly controlling it not for a subversive reason.

Jay Alan Sekulow:

And I think the evidence in these cases, in these series of cases, pointing to Justice Kennedy’s concern about what does it mean for future cases, here it is uncontroverted: The basis upon which the preliminary injunction ultimately was issued by the Tenth Circuit disregarded or at least cast doubt on the declaration of the park administrator, who had been involved in city government since 1972, who stated — and it can be found on pages 102 through 104 of the joint appendix — that it’s been the practice of Pleasant Grove City for three decades to accept displays only in their particular case related to the history of the community, its pioneer history.

Antonin Scalia:

–It goes to the same thing, doesn’t it?

I mean, whether it’s the Government stating the message or whether it’s the Government creating a limited public forum for the presentation of only those messages that it thinks are important, it comes to the same thing, doesn’t it?

Jay Alan Sekulow:

Well, it depends on — if it’s a limited public forum, certainly limited public forums can be based on subject matter and speaker identity.

This Court said that, said that consistently, Cornelius and Perry.

So in that context, and now that limited public forum appears to be more of a non-public forum type of analysis, certainly.

Even in the designated public forum, it could be limited in that regard.

I think that points to the confusion of what took place here.

The Court in our view conflated those two issues, the issue of forum and Government speech.

And while they’re both separate basis upon which we believe the Tenth Circuit opinion could be reversed and vacate the issuance of the injunction, the reality is that in this particular case once title passed and control vested in Pleasant Grove City they were the owner and effectively controlled.

And, Mr. Chief Justice, that does not mean that they violate the Establishment Clause simply because they own and control a monument.

John Paul Stevens:

Let me ask you a question to make sure I understand your position.

It would have been permissible for the city to say, our park it filled with monuments and we are only going to let those in who convey messages that we agree with?

Jay Alan Sekulow:

If the policy is–

John Paul Stevens:

If that’s a policy.

Jay Alan Sekulow:

–If the policy is that we’re only going — that the Government’s controlling those messages, it’s not individual private expression, of course.

If it’s individual private — if the Government, on the other hand, were to say–

John Paul Stevens:

But really, in this case sort of the debate as to whether the policy justifications for the monument are a sham are not are really irrelevant?

Jay Alan Sekulow:

–From a legal standpoint on Government speech, it’s irrelevant.

On the factual–

John Paul Stevens:

Even if it’s a Government forum for private speech, I think it’s the same thing.

You’re defining — you define the forum to include only those — the forum is putting up monuments.

You just put up those monuments that agree with the message.

Anthony M. Kennedy:

And the same question Justice Stevens had, just to tack onto his question here, your answer was: Oh, well, the Government owns it.

Suppose the Government says: We will accept ownership only if we agree with the message.

That just puts his question.

I think the ownership argument is — is not an answer to the Justice’s question.

Jay Alan Sekulow:

–It’s not ownership, Justice Kennedy, in and of itself.

Ownership is an indicator, a factor for control, but it is control of the message.

When the Government implanted that monument donated by the Fraternal Order of Eagles, they were sending a message.

Jay Alan Sekulow:

It was not a message of

“I am the lord thy God– “

David H. Souter:

Nothing could be a more obvious control of the message than the criterion that says we will decide in — in determining to accept it or not, we will decide on the basis of whether we agree with the message.

That is control with a vengeance.

Jay Alan Sekulow:

–The difference is — the difference between each of those cases and the case here is the Fraternal Order of Eagles surrendered control of their message and their speech.

In the typical equal access case, Justice Stevens, they do not.

David H. Souter:

Well, they — they do in the example Justice Kennedy just raised and the example that I just raised.

The Eagles come along say: Here’s the monument; take it; it’s all yours.

Jay Alan Sekulow:

Which happened here.

David H. Souter:

And the — the Government says: Okay, we’ll take the Eagles monument.

We will not on identical terms take the Summum monument because we disagree with the message.

At the point they make the decision they don’t own anything.

What they are doing is controlling, in your words, and they are controlling on the basis of agreement with the message.

Why isn’t that a First Amendment violation?

Jay Alan Sekulow:

It’s not a First Amendment violation because the Government takes ownership and control at the time it’s displayed, and there is no dispute at the time it’s displayed that the Government is conveying a message.

David H. Souter:

But we’ve got — we’ve got to shut our eyes to the period prior to the moment title passes.

Jay Alan Sekulow:

Absolutely not, because discovery in this case proves the fact that this has been a policy in existence for three decades.

And the fact of the matter is under that analysis–

David H. Souter:

Does that mean if we engage in viewpoint discrimination for three decades, we are home free?

Jay Alan Sekulow:

–If the Government is the speaker, they are certainly entitled to do that.

If they are not, that would be a very different scenario.

David H. Souter:

It wouldn’t be a speaker on your view until it takes control of the monument.

Jay Alan Sekulow:

But the Government — the speech selection itself is an independent basis under Forbes, Finley, and American Library Association to bring these kind of–

David H. Souter:

But those are cases in which, to begin with, the Government is engaging in — a process of, in effect, sponsoring speech.

And here we — we have not, I think, reached the point in which the public park is to be analogized either with a publication or a magazine or — or grants to — to the arts.

Jay Alan Sekulow:

–I think, when it comes to the issue of selecting monuments for its park, it’s very similar to a museum curator or the arts.

Mr. Chief Justice, I’d like to reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, Mr. Sekulow.

Mr. Joseffer.

Daryl Joseffer:

Mr. Chief Justice, and may it please the Court: Of course the Government can select the content and viewpoint of monuments on the National Mall and in other public parks across the country.

Daryl Joseffer:

The Vietnam Veterans Memorial did not open us up to a Viet Cong memorial.

When the Martin Luther King Memorial is completed on the mall, it will not have to be offset by a monument to the man who shot Dr. King.

Samuel A. Alito, Jr.:

Can’t there be a situation where the Government does create a monument that is a — a limited public forum?

Let’s take the example that you just gave, the Vietnam War Memorial.

I presume the Government could not refuse to have the names of certain deceased soldiers on that monument because it disagreed with certain ideas that they had espoused at one point or another.

Daryl Joseffer:

Well, if — when it is Government speech — for example, we can have a — a Washington Monument and a Jefferson Memorial without an Adams one.

I mean, we do get to decide who we want to memorialize on the mall because it’s Government speech.

But there are also — there are two legal theories here.

The first is that this is Government speech.

The second is that this — even if it was private speech, this would be one of those unusual contexts like public broadcasting, museums, libraries, where normal forum principles do not apply because the Government is acting as a curator and value judgments are, therefore, both inevitable and appropriate.

David H. Souter:

What’s the answer to Justice Alito’s question?

Daryl Joseffer:

I mean, if we wanted–

John Paul Stevens:

Well, supposing the Government in the Vietnam Memorial decided not to put up the names of any homosexual soldiers.

Would that be permissible?

Daryl Joseffer:

–Yes.

When the — when the Government is speaking, it can choose who to memorialize and who not–

Stephen G. Breyer:

That seems to be the problem here.

And what I have in this is the — the problem I have is that we seem to be applying these subcategories in a very absolute way.

Why can’t we call this what it is — it’s a mixture of private speech with Government decisionmaking — and ask the question, as we do in election cases, is the restriction proportionate to a legitimate objective?

I know how you’re going to answer that question.

You’re going to say: Of course, it is.

But what’s interesting me is, are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter?

The answer to Justice Stevens’s hypothetically is: Of course the Government can’t do that because it’s disproportionate.

John Paul Stevens:

I didn’t get the answer.

Did you–

Daryl Joseffer:

–Yes, the Government can choose to memorialize who it wants on the mall.

When the Government is — now, to be clear, that’s under the Free Speech Clause.

Stephen G. Breyer:

So what is the answer to the — what is the answer to Justice Stevens’s hypothetical?

What is the answer to the homosexual hypothetical?

What is the answer?

Daryl Joseffer:

The only question–

Stephen G. Breyer:

Because that tests the theory.

Daryl Joseffer:

–Well, as a matter of the Free Speech Clause, there are no limits on the Government’s ability to speak freely.

Under the Equal Protection Clause, the Establishment Clause, perhaps the Due Process Clause, there might be thought to be independent checks on the Government’s speech.

But the Free Speech Clause, whatever else it does, does not prevent the Government from speaking freely.

Antonin Scalia:

It seems to me the Government could disfavor homosexuality just as it could disfavor abortion, just as it can disfavor a number of other things that in — in many States people are free to do.

The Government can disfavor all of it, can’t it?

Daryl Joseffer:

The Government would be powerless to do anything if it cannot first formulate and then express its own viewpoints.

Samuel A. Alito, Jr.:

Why is that the answer to the — the question?

Why isn’t the answer to the question that monuments generally are not — the erection of monuments generally are not a forum?

There is a fundamental difference between the speaker’s corner in the park where anybody can speak and a permanent monument that takes up space, presumably limited public space.

And if you have the unusual situation where you are have a monument that is really analogous to a forum, then the forum analysis would be applicable.

But to apply it to something like the Washington Monument or the Jefferson Memorial is ridiculous.

Daryl Joseffer:

When the — when the Government — and this is a point I started on earlier.

When the Government is acting as a curator as in the museum context, normal forum principles do not apply.

In Forbes, for example, this Court held that when the Government acts as a public broadcaster it normally can engage in viewpoint discrimination outside of an exception for candidate debates.

And the — and the same point applies here to monuments, I think, for a combination of three reasons.

First, the Government has an overwhelming interest as a property owner in not being saddled with structures it does not want; second, the limits on the availability of public space you refer to; and, third, the Government’s sovereign interest in using monuments on its own property to tell its own story, as the Federal Government has done here on the Mall.

It’s similar to, for example, a sculpture garden or — and — a sculpture garden where the Government can choose what sculptures to put in the sculpture garden without necessarily having some overriding theme or overriding reason.

If I could give two examples of that, in Meridian Hill Park here in Northwest D.C., between 15th and 16th streets, the Government chose to accept and place a variety of privately donated structures that have no evident connection to one another.

They cover people as diverse as Joan of Arc, President Buchanan–

Stephen G. Breyer:

But suppose they only accept Democrats who are sculptors, and they reject all the Republicans?

Daryl Joseffer:

–Right.

As a matter of policy–

Stephen G. Breyer:

Now, what in the First Amendment — are you saying the First Amendment would not stop that?

Daryl Joseffer:

–The Free Speech Clause on its own force does not prevent the Government from speaking freely.

But as a matter of rational basis review under the Fifth and Fourteenth Amendments, It is hard to see how the Government would have a legitimate governmental interest in pure partisan activity.

But the Free Speech Clause, what it does is that it — it limits the extent to which the Government can regulate other people’s speech.

Anthony M. Kennedy:

Well, under the Equal Protection Clause would — if you wrote an Equal Protection Clause opinion, you would end up saying it’s content-based.

That’s the First Amendment.

Daryl Joseffer:

If it’s Government speech, though–

Anthony M. Kennedy:

I — I don’t think that can you avoid the hard part by saying, oh, other amendments of the Constitution might apply.

The heart of the question is whether the Government may discriminate based on content, and that’s a First Amendment question.

Daryl Joseffer:

–But when the Government is speaking or when the Government is acting as a curator as with a museum or a sculpture garden or a library or here, the Government is absolutely entitled to make both content and viewpoint-based distinctions.

Otherwise, you get the absurd result–

Antonin Scalia:

It’s not only absolutely entitled, it has to do so.

It — it has no choice, does it?

Daryl Joseffer:

–Right.

If we — if we couldn’t formulate and express viewpoints, I would be here today in support of neither party.

And the Government, frankly, would be prevented from doing much of anything.

Antonin Scalia:

You can’t run a museum if you have to accept everything, right?

Daryl Joseffer:

Yes.

Now, yes — I mean — yes, if it’s just the simple point that we can do content and viewpoint discrimination in this context.

And Forbes recognized that when the Government — even if it’s private speech, Forbes recognizes that as a curator we can do this.

An example, though, of the question–

Anthony M. Kennedy:

Does the law always require us to adopt an all-or-nothing position?

Aren’t there some extreme cases indicated by the hypothetical where the First Amendment does enter in?

Do we have to decide this case that it’s all or nothing?

Daryl Joseffer:

–Of course, the Court could put limits on its holding if it so desired.

But if I could address the, sort of the hybrid speech which seems to worry some people.

The Vietnam Veterans Memorial is a great example.

People are permitted there to put private objects next to the wall.

That’s clearly authorized speech.

It’s authorized public speech.

But at the end of the day, the Government comes around, takes it away, puts the nonperishable objects in a Government warehouse, and then decides which of them to display in the Smithsonian’s American History Museum.

So what starts off as public speech — or as private speech, clearly becomes Government speech when the Government assumes control over it.

It’s the same as the Government putting a painting–

David H. Souter:

It would be — the trouble–

Daryl Joseffer:

–in a Government museum.

David H. Souter:

–I see your point, but the trouble with that as an argument here is the private part of the speech is just as much chiseled in stone as the public part.

David H. Souter:

So it’s not going to go away at the end of the day, and there isn’t any way that the Government in effect can engage in the gesture of saying all private speech is treated the same way, whatever way that might be.

So we’ve got a — we’ve got a — we’ve got a more difficult problem here.

Daryl Joseffer:

But if the Government — take a museum.

The Government could choose or not choose to put, say, a Gilbert Stuart painting that has a favorable portrayal of a former president on display.

The Government didn’t paint it.

It has Gilbert Stuart’s name all over it.

But when the Government chooses to put that in a — in a display, it’s the Government that is speaking, and the Government, therefore, has an absolute right to decide its own speech.

That should become–

David H. Souter:

What you are, in effect, saying — and this may be — I don’t mean I think this is necessarily the wrong answer — but you’re, in effect, saying, yes, you can find instances of Government speech in which there is clearly a — a private identification consistent with it, but the only appropriate analysis is the analysis for government speech.

You can’t have it both ways, you’ve got to pick one or the other; and it is — it is the Government aspect which controls the First Amendment purposes.

That, I take it, is your answer?

Daryl Joseffer:

–Yes.

And when we are talking about physical objects that constitute the speech, that’s oftentimes the case in museums, sculpture gardens, parks across the country.

So, frankly, there is — there is nothing even unusual about it.

And the reason is that all the free speech clause does–

David H. Souter:

There is nothing unusual about it, but we haven’t had this kind of a challenge before.

So, I — I guess it still rests on you to say why should we submerge the private part to the Government part.

There may be a very good reason, but I want to know what your reason is.

Daryl Joseffer:

–It’s simply that once the Government is speaking, it is the one — it turns on control, right?

So once the Government takes control of something, says this is our speech, then it’s the Government speaking.

And here, I mean, it does–

Antonin Scalia:

Well, maybe they can’t do it in museums, either.

I mean, yes, we’ve been doing this for a couple of hundred years, but maybe we’ve been wrong all along and maybe the Government can’t run museums.

It’s possible, right?

It’s a brave new world.

Daryl Joseffer:

–And frankly, public parks are no less absurd, because we’ve been doing it in public parks for probably at least as long as well.

And in fact, there are thousands of privately donated monuments and sculptures in public parks across the country, and I suspect a great many of them don’t have some formal disclaimer on them saying

“I am the United States and I approve this message. “

That’s not the way that Government speech has ever been thought to work.

The question, though, with Government speech turning on control, this is the easy case because we have a physical object that Government has both legal and physical custody over.

Daryl Joseffer:

It chooses to display it, and then it can do whatever it wants with it.

It can move it, modify it, destroy it, drop it to the bottom of the ocean, sell it on e B ay.

So you’ll never get a better example of control, which this Court held in Johanns is the touchstone for Government speech that’s not subject to the free speech clause.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Harris.

Pamela Harris:

Mr. Chief Justice, may it please the Court: The city here gave the Eagles access to its public park for s display about the Ten Commandments and it denied Summum access for a display about the tenets of its faith.

That’s a violation of the core free speech principle that the Government may not favor one message over another in a public forum.

The Eagles display here is not Government speech.

The city had nothing to do with the Ten Commandments Monument.

Antonin Scalia:

You say in a public forum.

I mean, that sort of begs the question.

I mean, that — that encapulates your — your — encapsulates your answer.

Has the — has the city allowed anybody to put up a monument there willy-nilly?

I mean, a public forum, as you know, we can have praise in the park, we can have protest.

Anybody can do it, so long as you get a license and you’re not interfering with some other group.

That’s a public forum.

Has this city said anybody can put up a monument in this park?

Pamela Harris:

Justice Scalia, there is a very serious factual question in this case about whether the city ever had a bona fide selection policy for this park.

But putting that to one side for a moment, a public park is a public forum.

A monument in a park may be a mode of communication for that forum–

Antonin Scalia:

It’s a public forum for some things.

Is it a public forum for everything?

It may be a public forum for processions, for parades.

But it is a public — is it a public forum for anybody constructing a monument?

Pamela Harris:

–If you look at the question that way, Justice Scalia, it might be said that a public park is not a forum for sound trucks, it’s not a forum for sleep-ins, it’s not a forum for news racks.

What that means is that there is no unfettered right to engage in those forms of communication.

But if the Government allows it all–

Anthony M. Kennedy:

Those are time, place, and manner regulations, with which we are all familiar.

But my concern is that this — this case is an example of the tyrannies — of the tyranny of labels.

Anthony M. Kennedy:

Because it’s a public forum, as Justice Scalia indicated, for parades, for protests, which are limited temporally, it — it — it just seems wooden and rigid to say to all of a sudden say, well, it’s a public forum for something that will last 30 years for which there is only limited space.

It just doesn’t make common sense.

Pamela Harris:

–And that is exactly why, Justice Kennedy, the city, any city, is permitted to make a decision that it will close its public parks to all unattended displays.

The Court said that in Pinette.

It said that earlier in Vincent.

But Because there–

John G. Roberts, Jr.:

How far do you push that?

I mean, what about the hypotheticals on the other side?

I mean, you have a Statue of Liberty; do we have to have a statue of despotism?

Or do we have to put any president who wants to be on Mount Rushmore?

How do you answer those?

Pamela Harris:

–Of course not, is how I answer that, Mr. Chief Justice.

Any city has available to it two very straightforward options for dealing with this question if by some happenstance they do have a monument on public land that is not now a Government monument.

The first thing they can do is adopt any existing monuments as Government speech, convert them.

David H. Souter:

How do they do that?

What is the — you mentioned that frequently in your brief, and I’m not sure what formality you have in mind when you say adopt.

Pamela Harris:

Governments can do it different ways, Justice Souter.

The way the national Government does it under the Antiquities Act of 1906 is they formally designate pre-existing structures as a monument of the United States or a memorial of the United States.

And that, by the way, Mr. Chief Justice, is the response to the Statue of Liberty problem.

In 1924 it was so designated.

John G. Roberts, Jr.:

So, it’s frozen into time.

Everything up until now is okay, but anything going forward is not?

Pamela Harris:

I’m not sure I understand.

John G. Roberts, Jr.:

Well, I thought you said the Government can accept what’s there and say that’s our speech.

But you’re challenging the ability to do that going forward.

Pamela Harris:

No.

No, Your Honor.

If the Government accepts what’s there — what is there now and says that’s ours, then they can say we are not taking — we have closed this forum to private speech, these parks are available only to Governmental displays.

Antonin Scalia:

The other side says that some of these monuments, especially in the Civil War battlegrounds, do indeed show who the donors are.

Pamela Harris:

I’m sorry?

Antonin Scalia:

What — Mr. Sekulow says that some of these monuments, notably those in the Civil War battlefields, do show who the donors are.

Now is that Government speech or private speech?

Pamela Harris:

It depends if they were privately formulated and handed off to the Government as a completed object, they are only Government speech if the Government has since then converted them–

Antonin Scalia:

So they have to go?

Pamela Harris:

–by adopting them.

They don’t have to go.

Antonin Scalia:

Now that the Government converted them, it passes a law saying, what, we — we adopt this?

Pamela Harris:

That has happened.

Antonin Scalia:

Isn’t it enough that the Government accepts ownership of it and places it on the Government’s property?

Isn’t that a manifestation of the Government’s adoption of it?

Pamela Harris:

Let me answer both of your questions, Justice Scalia.

The way it does that even if they — even if a monument makes clear that it was privately formulated, a Government can still adopt it as its own speech.

It can put–

David H. Souter:

So this case — your claim would disappear if this town in Utah had passed an ordinance saying we adopt the Ten Commandments Monument?

Pamela Harris:

–It would, Justice Souter.

We would no longer have an equal access right going forward–

David H. Souter:

But that’s — I mean, if that’s all that’s involved here, we’re engaging in kind of a — almost a silly exercise in formality.

Pamela Harris:

–Absolutely not, Justice Souter.

And the reason we know it’s not a formality is because the city here refuses to do it.

If it were just a formality, they would check the box.

They won’t do it–

David H. Souter:

If we tell them you have got to take the monument down if they don’t do it, don’t you think they are going to pass that pretty quick?

Pamela Harris:

–I don’t think they are, Justice Souter.

And I think it would be partly a concern about establishment clause exposure, which we already heard about today.

I think that there are substantive reasons why they might not want to adopt one version of the Ten Commandments as the city’s own speech.

As it happens, the version of the Ten Commandments on the Eagles monument isn’t even the Mormon version of the Ten Commandments.

That might raise sensitivities in this town.

And whenever the Government adopts one version of the exodus account, that is not legally sensitive but politically sensitive as well.

Antonin Scalia:

It depends on what you mean by adopting one version.

If it’s adopting the version by saying these Ten Commandments are the word of God, that’s one thing.

Antonin Scalia:

If it’s adopting it by just saying this is a version of the Ten Commandments that has had a very significant place in the history of the American people.

Pamela Harris:

I think that those are–

Antonin Scalia:

I wouldn’t care what version it was if that’s all they’re doing.

Pamela Harris:

–Those are very different–

Antonin Scalia:

Nor would the Mormons in Utah, I think.

Pamela Harris:

–Well, those are very different for establishment clause purposes, Justice Scalia.

But the only way the Government can be adopting anything in this context is by saying through the act of selection we have adopted it.

And the problem with that is that the Government is not allowed to select which private speech it wishes to present to the public in a public park.

It can do that.

It can do that in museums.

It can do it in libraries.

It can do it–

Samuel A. Alito, Jr.:

Let me give you this example.

Just by chance yesterday I was taking a walk in a little neighborhood park, and I saw that there was a monument — a small monument, donated, and it says right on there donated by a private neighborhood association to commemorate a number of people who were killed in the 9-11 attack on the Pentagon.

And now if I searched the town records or the county record and I don’t find any resolution saying they adopted this monument as their monument, does that mean that if I would like to put up a monument in the park to commemorate loved ones who died, or people who I respect, I have a First Amendment right to do that?

Pamela Harris:

–No, Your Honor, and really for three separate reasons.

First of the all, it may be that the Government — even privately donated monuments often involve a great deal of Government involvement at the front end, when they are created.

Government often works in partnership with private donors to create the content of that monument.

Samuel A. Alito, Jr.:

Well what if the situation is a neighborhood association prepared this; they said we’d like to display it in the park; and the county or the town says fine, go ahead and do it?

Pamela Harris:

Even under those more usual circumstances there would be two things the city could do to keep you out of their park.

As I said, they could adopt the monument that is there.

The other thing any city can do is adopt some kind of a content-neutral ban, or a content-neutral limit, on the number of private displays it wants to have in its park.

Antonin Scalia:

Ms. Harris, we — we need a clear rule here.

We — we can’t expect the courts or the cities for that matter to investigate in every case what the degree of the Government’s involvement in the — and what is the degree, 50 percent, 45 percent, 36 years?

I mean, we are going to make up a percentage?

That’s — that’s not the way threshold constitutional questions ought to be resolved or resolvable.

We need a clear rule that the cities can rely on.

Pamela Harris:

I agree that we need a clear rule, and if clarity is important here the easiest way for the Government to make clear that it has adopted a privately formulated message as its own is to adopt it clearly and publicly.

It can put up a plaque; it can designate it a city monument.

Antonin Scalia:

Is there an historical basis for that, or you just made it up?

Antonin Scalia:

You think it would be a good idea?

I mean, if that had been the practice over the past 200 years for all of these monuments that — that, you know, are strewed across the landscape, then I’d say yes, that’s probably what the difference is.

But I’m not aware that there is any such — such requirement and any such practice on the part of Government.

You’re — you’re creating a new world.

Pamela Harris:

I–

Antonin Scalia:

It may be a very nice world but it happens not to be the world under which our Constitution has subjected this country.

Pamela Harris:

–If this is uncommon, that is because usually the Government does reserve monuments for governmental speech, monuments that it helps to create or monuments that it is happy to endorse after the fact.

If this case is unusual, it’s because Pleasant Grove has done an unusual thing here by allowing a private party to erect a permanent monument in its park, even though it is not willing to endorse the content of that monument.

And I do want to say that although clear rules are necessary, whatever the particular details of how a monument came to be on public land, there are these two clear safe harbors for any city facing that problem.

Adopt it now or enact a content-neutral limit on the number of monuments in the park; and we think the city could do that on a going-forward basis.

It could say we have room — for aesthetic reasons, for space constraint reasons, We would like–

Antonin Scalia:

So that’s all right, the first 95 monuments, whoever — whoever put them up, okay?

It’s a monument to chocolate chip cookies or whatever else, is that it?

First 95?

Pamela Harris:

–Sure.

A city could say we think–

Antonin Scalia:

This is a practical solution to the problem?

Pamela Harris:

–Absolutely, because any city confronting this problem now can look at its park and say we have four monuments–

Anthony M. Kennedy:

You’re saying the last generation had much more freedom than the present one?

Pamela Harris:

–I’m saying that as long as it does it on a content-neutral basis, because it is genuinely concerned about aesthetics, space constraints, clutter in its parks, a city can enact a ban or a limit on the number of displays; and if that has the effect of grandfathering in existing displays–

Ruth Bader Ginsburg:

Can we go back to — your basic premise is this is a public forum, in any and all instances; and we do have, certainly in the speech area, demonstration area, from time immemorial public parks have been places where people can speak their minds.

But I don’t know of any tradition that says people can come to the park with monuments and put them up if they will, so long as they meet the equivalent of time, place and manner.

So you’re making an assumption that from time immemorial, monuments, just like speeches, can be presented by anyone who wants to.

Pamela Harris:

–No, Justice Ginsburg.

Monuments are different from speeches and because monuments are different, the Court has held that unlike oratory, a city can decide to close its parks entirely to all private unattended displays.

It could not say,

“We’ve heard enough speeches; no more speeches. “

It can say no private–

David H. Souter:

If that — it that is so, what is the point of using the public forum analysis at all?

Pamela Harris:

–Because here the city has not done that.

Pamela Harris:

The city has not closed — it has not made the decision that it will bar all private unattended displays.

David H. Souter:

That — that may mean that you have the foundation for a — a speech discrimination argument–

Pamela Harris:

That–

David H. Souter:

–but that would not be the answer if we were dealing with a — a traditional public forum in — in the sense that the Court’s cases have used the term.

Pamela Harris:

–Oh, I think–

David H. Souter:

So it seems to me that your use of public forum is just by kind of remote analogy here, and I — I’m not sure that it’s helping you or would help us if we used it as criterion for decision.

Pamela Harris:

–Oh, I think it may be helpful, Justice Souter, because once we know that we are talking about a public forum, we know that access cannot be limited on a content basis.

Anthony M. Kennedy:

Well, your — you can stick with it as long as you want; that’s what the — the Tenth Circuit did, but suppose that we were to say that we were unconvinced by the comparison between speeches and parades on the one hand and monuments on the other, so we did not apply the public forum analogy.

Would that be the end of your case?

Pamela Harris:

Oh, no, Justice Kennedy.

Even outside a public forum, in any context — even in a museum or library — in any context in which the Government is regulating private speech, it may not act in a way that is designed to suppress one particularly disfavored message or view; and we think that’s what happened here.

As I said earlier–

John G. Roberts, Jr.:

Well, but it does all the time.

The — you don’t get equal time — the cigarette companies don’t get equal time because the Government says the Surgeon General has determined it is bad for your health.

It always suppresses alternative viewpoints.

Pamela Harris:

–When the Government is speaking for itself, then the Government does have a right to prefer certain viewpoints over others, but here the city has consistently refused to adopt the content of this monument as its own, and it is still disclaiming endorsement of that monument.

The city here — the justification for that Government speech exception is that sometimes, as the United States has said, the Government is entitled to speak in its own voice to promote its own messages, its own policies.

But it says it’s not doing that here.

Antonin Scalia:

You will say just the opposite when you come back here to challenge the Ten Commandments monument on — on Establishment Clause grounds.

You will say something like this: Anybody who comes into this park and seeing this monument owned by the Government, on Government land, will think that the Government is endorsing this message.

That’s what you will say now.

Pamela Harris:

Um–

Antonin Scalia:

Now why would it be true there, but it’s not true here?

Would anybody think that on public land owned by the Government the Government disagrees with this message?

Pamela Harris:

–Justice Scalia, for one thing, if this case were being litigated under the Establishment Clause, it wouldn’t be critical whether the monument were actually Government speech, because the Establishment Clause can be implicated by the Government’s interaction with private speech as well.

That said, I do not think it’s the case that anybody who came across this monument would know that the Government is speaking.

The monument says it is presented by the Eagles.

It has the Eagles emblem.

The mayor himself testified in his deposition that he thought the monument was owned by the city, because it’s the Eagles and not the — I’m sorry; was owned by the Eagles, because it is the Eagles and not the city that maintains that monument.

I think there is a very real question about what people would think here and if those perceptions are important the easy way to clarify it is for the city to step up and adopt the monument as Government speech, which it won’t do here.

Samuel A. Alito, Jr.:

Isn’t merely allowing the monument to be built on public property sufficient acceptance?

If somebody came up to you and said I’d like to put up a monument in your front yard, and you said sure go ahead, do that, aren’t you accepting that — whatever the monument says, in a sense?

Pamela Harris:

Your Honor, my front yard is different from a public park, and that matters because when all the Government has done is said sure, go ahead, put your monument in our park, that’s all the Government ever does when it administers access to a public forum.

If it’s doing it on a content basis, that’s a problem.

The Government–

David H. Souter:

No, but it doesn’t — it doesn’t have to do that, say, for time place and manner restrictions for access to a public forum if it really is a public forum.

There is something more involved here.

This is closer to the case of the individual who says sure, put the McCain sign on — on my lawn.

No one is going to doubt that the person whose house is there is in favor of McCain; and — and it seems to me we are in the same situation with the monument in the city.

Pamela Harris:

–Again, I think because it’s a public park and because public forums are always used for the expression of — of ideas that the Government does not necessarily agree with–

David H. Souter:

Sure, but when you get the monument–

Pamela Harris:

–the perceptions will not be clear.

David H. Souter:

–We do not — there is no pervasive understanding or non-pervasive one, I would have thought, in the United States that anyone who wants to display a message in granite in a public park can put it there.

No one assumes that.

Everyone assumes that, if the granite monument is there, the city or whatever has said, yes, we approve it, put it there.

Pamela Harris:

The city in this case — everybody may assume that, and they would be right.

The city in this case did say, yes, we approve that monument and not that one.

So you can put yours up, and you can’t.

That doesn’t solve the First Amendment problem.

That is the First Amendment problem that the Government–

David H. Souter:

It may create the First Amendment problem, but it seems to me, going back to Justice Alito’s question, that the City’s decision is a clear adoption of the monument.

Pamela Harris:

–If all we have, I think, Justice Souter, is that the city has permitted one private speaker to erect a monument, there is no constitutional or judicially manageable line between that and just the ordinary thing the Government always does when it grants preferred access to a public forum, which is to say you’re in, you’re out.

If that’s enough for adoption, then there are no more First Amendment violations through lack of equal access.

David H. Souter:

Yes, but even on your own criterion, if the city passes a resolution saying we adopt this, you’re still — you’re going to be faced with precisely the content discrimination problem that you’re arguing about here.

Pamela Harris:

But because it’s adopted it as its own message, then we think the Government is speaking.

And when the Government is speaking, as the United States, said it is entitled to make content and viewpoint distinctions, but in order to do that, it has to step up and speak itself.

That’s the justification for the Government speech doctrine.

David H. Souter:

You’re basically just arguing for a clear statement rule.

I mean, Justice Alito’s question, my analogies are suggestive of the fact that there is an affirmative Government act of some indication of approval when it says, yes, you can put the monument here.

And what you’re arguing for is, well, we want a clearer statement, we want it to say, yes, we really adopt it, it’s ours from the heart.

David H. Souter:

And that seems to be the difference between your position and the — and the position that acceptance of the monument is enough.

Pamela Harris:

I would formulate it only slightly differently, which is not so much a clear statement but that those are really two different things, approving it for access and adopting the message as the Government’s own.

And that the differences–

David H. Souter:

Well, you can–

Pamela Harris:

–that would–

David H. Souter:

–You can make that distinction.

There’s no — I understand the distinction you’re making, but because I don’t see that that’s a distinction that a reasonable member of the public would understand to be implied by the — or at least to be — to be raised by the placement of the monument, I don’t know why it’s a distinction that should be significant for First Amendment purposes.

Pamela Harris:

–If what matters is the public perception, then, yes, we do think that to clarify an unclear situation like this, where have you a monument that says it’s presented by the Eagles, it has the Eagles emblem, the Eagles are continuing to maintain it in the park, and that’s a fact we should assume a reasonable observer would know, then, yes, be clear.

The Government — there’s one way to clarify that, and that’s for the Government to adopt it.

Samuel A. Alito, Jr.:

And when Government adopts it, can it at that time specify what it understands the statement to be?

Pamela Harris:

I think it can, Justice Alito.

It can adopt — now the Government is speaking, now this is the Government’s own message, and it can tailor its adoption to make clear what message it’s adopting.

And in answer to some of Justice Scalia’s questions, I think the Government here could put up a plaque in front of the Eagles’ monument that says

“Monument of the City of Pleasant Grove and dedicated to the role that the Ten Commandments play in secular law. “

It can do that.

Antonin Scalia:

Suppose the resolution of adoption by the City Council just says,

“The City Council agrees that this monument of the Eagle Association expresses an idea worthy of the public’s attention. “

Pamela Harris:

I think the–

Antonin Scalia:

Is that enough?

Pamela Harris:

–No.

I think that the ordinance — or the ordinance has to do one more thing, which is to — which is to say,

“This is a monument of the City of Pleasant Grove, we adopt the content of the monument. “

not just “we approve it”.

“We are giving it preferential access, and here is why. “

David H. Souter:

You want a signing statement as well as a signature?

[Laughter]

Pamela Harris:

Like that.

John G. Roberts, Jr.:

Does it depend on — given the focus on public perception, does it depend on the content of the speech?

In other words, if you came across a monument and it said,

“The Eagles are a lot better than every other organization, you should give money to the Eagles. “

John G. Roberts, Jr.:

someone is going to walk by that and say,

“Well, that’s probably not the City, that’s probably the Eagles. “

But the Eagles, you know, for all the good they do, did not come up with the Ten Commandments, and somebody is going to look at that and say, “That’s probably the City”.

They are not going to look at that and immediately say, “That’s what the Eagles believe”.

Pamela Harris:

Well, I think it’s actually trickier than that, more complicated than that, Your Honor.

Again, given this monument, I think there will be questions about whether this is the speech of the Eagles.

And I actually think that, given all the legal sensitivities around a Ten Commandments monument, your average citizen, when they see a religious monument in a park, may well think that may be private speech because the Government usually can’t endorse or at least sometimes can’t endorse religious speech.

So I actually think these questions are very complicated.

And, again, if you want to be clear about who’s speaking, there’s an easy way to do that, which is for the Government straightforwardly and clearly to adopt this speech as its own.

Antonin Scalia:

What if it’s just a statue of George Washington?

What kind of a resolution does the city council adopt?

“We endorse everything George Washington ever said? “

Pamela Harris:

No.

Again, and in my answer to Justice Alito, they can adopt any resolution they want so long as they adopt that statue as a–

Antonin Scalia:

Well, if–

Pamela Harris:

–city memorial.

Antonin Scalia:

–That’s right, and I think they would adopt a resolution that says,

“We think George Washington is worthy of respect and emulation on the part of our citizens. “

Pamela Harris:

And so long as that is–

Antonin Scalia:

If it could say that, why couldn’t it say the same thing about the Ten Commandments?

“We think the Ten Commandments are worthy of respect and. “

–and I wouldn’t say “emulation”; I would say

“respect and reverence by our citizens. “

Pamela Harris:

–So long as–

Antonin Scalia:

Would that be enough?

Pamela Harris:

–So long as it is preceded by a statement that the city actually adopts the memorial as its own, that this is–

Antonin Scalia:

I don’t know what that means.

Pamela Harris:

–a Pleasant Grove memorial or a Pleasant Grove monument.

Antonin Scalia:

It has acquired the memorial.

The City has acquired property in this memorial and has agreed for this memorial to be placed in the city park.

Antonin Scalia:

Period.

“We believe that the Ten Commandments which are embodied in this memorial are worthy of respect by the citizens of Pleasant Grove. “

–is that enough?

Pamela Harris:

It may be that if the Government goes on long enough, it will have connoted what is very important here, which is that it is prepared to adopt the content of that monument as its own.

Antonin Scalia:

I don’t know what that means.

You keep saying it, and I don’t know what it means.

Pamela Harris:

It means–

Antonin Scalia:

I would have thought adopting what I said shows that it is adopting the content of the monument insofar as the monument says the Ten Commandments should be respected by the citizens of Pleasant Grove.

Is that enough?

Pamela Harris:

–If the City says–

Antonin Scalia:

Or it has to say,

“We believe in the Ten Commandments? “

Pamela Harris:

–No.

No.

I understand your question, Justice Scalia.

If the City says what you just said,

“We are adopting this monument insofar. “

and however it wants to finish that sentence, that is fine.

Antonin Scalia:

You don’t think that’s fairly implied by the mere fact that it is there in Pleasant Grove’s park and that Pleasant Grove City Council has allowed it to be constructed there?

Don’t you think that’s implicit?

Pamela Harris:

No, I don’t, Your Honor.

I think that all that implies is that Pleasant Grove has decided this speech is worthy of display in this public park based on its content.

And that is the decision the City can’t make.

If it were just a formality, if it were simple, and it’s all the same, who cares?

, then I think that Pleasant Grove would be here saying something different, which is,

“We adopt. “

“We’ll check that box. “

There are substantive reasons why it doesn’t — it may be a fine line–

Antonin Scalia:

Maybe the City doesn’t know–

Pamela Harris:

–but the City doesn’t want to cross it.

Antonin Scalia:

–know what you mean by “We adopt”, just as I don’t know what you mean by “We adopt”.

Pamela Harris:

Well, whether or not the City knows what we mean, what we know from the City’s brief is that what it’s saying is — and this is on page 33 of its brief — the Government speech here is only in the act of selection.

Selection.

It’s not about the content of that monument.

That’s not enough to make a Government speech, and the City is not permitted to speak through selection, and–

Stephen G. Breyer:

What do we do — is this monument suspiciously similar to the one in Texas?

And so if the history is the same, you would know that there was — a big element of this was Cecile B. DeMille trying to promote his movie, The Ten Commandments.

So he gave money to the Eagles, and the Eagles put Ten Commandments all over because it would be good for the morality of people, and also it would help promote the movie.

All right?

Is that true — is that the actual description here?

Pamela Harris:

–This is part of the same Eagles project–

Stephen G. Breyer:

Okay.

Pamela Harris:

–that was–

Stephen G. Breyer:

So — so if that’s the history of it, what does that mean?

I mean, where do we go with that?

Then this is in fact partly an attempt to promote morality, partly an attempt to be civic, partly an attempt to promote a movie.

So, what do we do with that?

Pamela Harris:

–It’s all a private message, and it may be a private message that has many different elements, but nothing about that suggests Government speech.

And even if all the Government is doing in its public part is promoting one version of the Cecile DeMille movie, it can’t do that on a content basis.

Stephen G. Breyer:

Why not?

Why — suppose that there — there are certain messages that private people had like “eat vitamins”–

Pamela Harris:

Uh-huh.

Stephen G. Breyer:

–and so they say — you know, whatever those are; and then somebody comes along with a totally different content, “ride the roller coaster”, and they say this part of the park is designed to get healthy children, not put children at risk.

So therefore we like messages to eat vitamins, and we don’t want messages, “ride the roller coaster”.

This is all private.

It’s the — you know — now what?

Pamela Harris:

The problem is that it’s a public park, and content–

Stephen G. Breyer:

So in other words, they — the–

Pamela Harris:

–Eating vitamins and roller coasters are not–

Stephen G. Breyer:

–They can’t do either.

Pamela Harris:

–No.

Stephen G. Breyer:

Is there any case that says — can they have playgrounds in the park?

Pamela Harris:

They can have playgrounds, yes.

Stephen G. Breyer:

Okay, so we have right in the playground, we have “eat vitamins”,

“eat your — clean up all your — all the food in your plate. “

“don’t throw food at your brother. “

okay?

So — I mean–

Pamela Harris:

Those are private messages.

Stephen G. Breyer:

–Yes, all private.

Pamela Harris:

Uh-huh.

Okay.

Stephen G. Breyer:

Because there are various groups that feel that’s important; the city says yes, it is; and we don’t want things like pull the dog’s tail, or —-

[Laughter]

–whatever.

So — so what’s wrong with that?

Where does the First Amendment forbid that?

You promote — they want in this corner, promoting in the playground good things that they like and not bad ones.

Where does it permit it?

What’s the case that says that the Government couldn’t do that?

Pamela Harris:

It’s all the cases that say the Government can’t do it.

Stephen G. Breyer:

Give one and I’ll read it.

Give me three; I’ll read them.

Pamela Harris:

I’ll give you Pinette.

The Government can’t make content based decisions in a public forum.

And there is not a limit–

Stephen G. Breyer:

But the children’s playground isn’t the public forum.

Pamela Harris:

–Oh, but the Government — a public park is a public forum.

If the Government wants to set aside part of that park — change the physical characteristics, change the principal use and bear the attendant cost, it can definitely do that.

That is in fact the answer to the sculpture garden; that’s what happened there.

Pamela Harris:

The Government waived part of what it been a public forum; it put up fences; it changed the principal use; it limited the public access.

It is no longer a park.

It is now a museum.

I’m sorry.

I misunderstood.

The Government can–

Stephen G. Breyer:

I see where you’re going.

Thank you.

Pamela Harris:

–Okay.

Ruth Bader Ginsburg:

Are you taking this line because you say if the city council votes for it, then the voters can know those people voted to put up the Ten Commandments; we don’t like that; so we are going to vote them out?

Is that — what underlies this notion that it isn’t good enough for them to approve the placement of the monument, but it has to be some kind of formal declaration?

Pamela Harris:

What underlies it is that the Government speech — the Government speech doctrine is an exception to normal First Amendment, and very important First Amendment constraints.

And what underlies the distinction is that that exception is justified only when the Government is speaking for itself.

The Government needs to be able to promote its own messages, its own ideas.

But if it’s not doing that, if it’s disclaiming the content of the monument, saying those are not our own ideas, those are not our own messages, then there is just no justification for allowing it to prefer one form of private speech over another.

The justification for allowing that exception is missing.

David H. Souter:

But it’s not disclaiming it here.

The Government isn’t disclaiming it.

And the difference it seems to me between you and your friends on the other side is you want this clear statement.

You want a statement — for example if you took Justice Scalia’s statement, that would satisfy you, and it would also be the poison pill in the Establishment Clause.

Isn’t that what’s — I mean, that’s okay with me.

I don’t see that as an illegitimate object.

I was a Van Orden dissenter — I mean, but isn’t that what is driving this?

Pamela Harris:

Well, I do think that the — the city is a bit on the horns of a dilemma because it wants to have it both ways.

It wants to be able to say this speech is governmental for purposes of blocking equal access rights; but not so governmental at that it’s a big Establishment Clause problem.

So yes, I think there is a dilemma here for the city.

Thank you, Your Honors.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Sekulow, you have two minutes remaining.

Jay Alan Sekulow:

Thank you, Mr. Chief Justice.

Jay Alan Sekulow:

With regard to the hypothetical about the Senator McCain or President-elect Obama signs, there is another factor that’s important here; and that is those signs are created by those — usually by the campaigns.

So the fact that it’s created by a third party doesn’t in any way diminish the speech aspect of an individual who has put that sign in their home.

Also with regard to the adopt the monument, governments don’t adopt monuments; they adopt resolutions that accept monuments.

That’s the way it worked here; that’s the way it works in most municipalities.

That’s this — the trigger of allowing the monument to be displayed.

Here there are two.

The city — it was approached and made a formal acceptance, and it was noted later in their minutes as well, so in two different places.

With regard to the adoption of the speech problem, Justice Alito, under the hypothetical or — not hypothetical, the factual situation that you talk about, under the Tenth Circuit’s theory, the case, in Respondent’s theory of the case, al-Qaeda sympathizers could come in and say we want to erect a monument praising the value of the terrorists, and unless there’s a compelling governmental interest, there would be no basis on which to deny it.

That’s why the whole public forum analysis on this, in our view is absolutely incorrect.

And finally on the adopt a speech, there are monuments and memorials that incorporate a variety of message, including Holocaust memorials, and they will often have in place Nazi-era propaganda, the signs from the Nazis that were designed to draw hatred towards Jews; and they will incorporate those into the monuments and the displays.

They are not adopting the message of the Nazis; they are showing the history of what took place during an era.

That’s very, very different.

The Statute of Liberty, which was donated to the United States, was from the Franco-American Union, a private organization.

The United States — and it’s found in the appendix to our reply brief — specifically accepted the monument, authorized the president to accept and they erected the pedestal.

All privately funded in that regard, and it was originated by a third party.

The Government was speaking when they erected that monument; the fact that the Antiquities Act came into play, which just means you cannot harm those monuments, it’s no different than Pioneer Park, which is a national historic treasure.

And last point, Mr. Chief Justice, if I man, is the reliance on Pinette is misplaced because as this Court said, Pinette is an Establishment Clause case, and the reliance here by the Respondent has been on the Free Speech Clause.

We think the Tenth Circuit is wrong, both under the Government speech analysis and under the forum approach, and for that reason should be vacated.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.