Summum v. Pleasant Grove City: The Tenth Circuit “Binds the Hands of Local Governments as They Shape the Permanent Character of Their Public Spaces.”
Summum v. Pleasant Grove City: The Tenth Circuit “Binds the Hands of Local Governments as They Shape the Permanent Character of Their Public Spaces.”
Keenan Lorenz, 85 Denv. U. L. Rev. 631 (2008)
In Summum v. Pleasant Grove City, the Tenth Circuit held that a content-based regulation on permanent monuments in a public park must satisfy strict scrutiny in order to survive a Free Speech challenge. In so ruling, the Tenth Circuit held that permanent monuments in public parks are traditional public forums. However, while parks are traditional public forums because they “have immemorially been … used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” they are not traditional public forums “insofar as the placement of monuments is concerned.” In finding that the appropriate forum in Pleasant Grove City was a traditionally public one, the Tenth Circuit incorrectly focused on the government property at issue without considering how the “particular channel of communication” to which access was sought affected the nature of that property. Had the Tenth Circuit done this, it would have found that a display of monuments in a public park is a limited public forum and therefore, a content-based regulation need only satisfy a reasonableness test to survive a Free Speech challenge.
The precedent set in Summum v. Pleasant Grove City takes away the government’s ability to control what monuments it allows in public parks. By ruling public parks are traditional public forums irrespective of the particular channel of communication sought, the Tenth Circuit leaves the government with an all-or-nothing choice when it comes to placing monuments in public parks. The government must either prohibit all monuments or allow all monuments unconditionally. This choice is really no choice at all when one recognizes that the government would be foolish to open a public park to any monument knowing that it has no ability to deny other monuments.