Why monuments are government speech: The hard case of Pleasant Grove City V. Summum

Catholic University Law Review

Volumn 58, Issue 1, 2009, Pages 7-58

  Dolan, Mary Jean ^a  

^a UNIVERSITY OF ILLINOIS AT CHICAGO   (United States)

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EID: 64249163711     PISSN: 00088390     EISSN: None     Source Type: Journal    
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References (379)

1. Pleasant Grove City v. Summum, 128 S. Ct. 1737 (2008) (No. 07-665) (mem.).
2. Brief for Petitioners at i, 5-6 & n.2, Pleasant Grove, 128 S. Ct. 1737 (June 16, 2008) (No. 07-665).
3. See McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 889, 893 (2005) (Scalia, J., dissenting) (referring to courtroom display of framed texts of the Ten Commandments, "[w]ith respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.").
4. An article by Professor Thomas Colby best summarizes the historical, doctrinal, and normative flaws of Justice Scalia's purported originalist argument. See Thomas B. Colby, A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause, 100 NW. U. L. REV. 1097 (2006).
5. But see Kyle Duncan, Bringing Scalia's Decalogue Dissent Down from the Mountain, 2007 UTAH L. REV. 287, 288 ("[R]eading Scalia's McCreary County dissent against the backdrop of his constitutional methodology shows it is unlikely that he is engaging in 'monotheistic activism.'").
6. See also infra note 231 and accompanying text (acknowledging the risk that the incremental approach represented here may desensitize courts and culture to additional large-scale changes in church-state relations).
7. See Brief for Petitioners, supra note 2, at i.
8. This fine point did not deter the Justices from extensive questioning of counsel on the Establishment Clause dilemma posed by a finding of government speech. See infra notes 227, 235.
9. For a discussion of the potential Establishment Clause violation here, see infra Part V.B. 1.
10. E.g., Legal Servs. Corp. v. Velasquez, 531 U.S. 533, 541 (2001) ("[V]iewpoint-based funding decisions can be sustained in instances in which the government itself is the speaker ....").
11. See Mary Jean Dolan, The Special Public Purpose Forum and Endorsement Relationships: New Extensions of Government Speech, 31 HASTINGS CONST. L.Q. 71, 71, 73-75 (2004) (applying conclusions to streetlight pole banners, government-sponsored events and corporate event sponsors, and municipal websites).
12. See SANFORD LEVINSON, WRITTEN IN STONE: PUBLIC MONUMENTS IN CHANGING SOCIETIES 10-11 (1998);
13. see also Brief for Petitioners, supra note 2, at 6-7 (discussing the city's monument policy, which requires "historical relevance or donation by a civic group with strong community ties").
14. Brief of Amicus Curiae International Municipal Lawyers Ass'n in Support of Petitioners at apps. A-C, Pleasant Grove City v. Summum, 128 S. Ct. 1737 (June 23, 2008) (No. 07-665) [hereinafter IMLA Brief]. I was the counsel of record and sole author of the brief.
15. See infra Parts III.A.3, V.A.
16. Because the purpose of this Article is to add to the dialogue in Pleasant Grove City v. Summum, which is currently before the Supreme Court, it does not strive to offer a comprehensive theory of government speech. These three factors, however, represent a threshold; further analysis of their universality and sufficiency is required.
17. Summum v. Pleasant Grove City, 483 F.3d 1044, 1050 (10th Cir. 2007), cert. granted, 128 S. Ct. 1737 (2008) (No. 07-665).
18. Id. at 1047, 1052-55.
19. The strict scrutiny test requires government to show that the challenged rejection of the private speaker was the least restrictive means to serve a compelling government interest. Id. at 1052 (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)).
20. At oral argument, many Justices seemed troubled by the Summum's argument equating permanent monuments with temporary assemblies. See, e.g., Transcript of Oral Argument at 43, Pleasant Grove City v. Summum, No. 07-665 (U.S. Nov. 12, 2008) (statement of Scalia, J.) ("So that's all right, the first 95 monuments, ... - whoever put them up . . . whatever [kind of monument], is that it?");
21. id. at 46 (statement of Kennedy, J.) ("[S]uppose we were to say that we were unconvinced by the comparison between speeches and parades on the one hand and monuments on the other . . ..").
22. See also infra Part IV.A.
23. See Summum v. Pleasant Grove City, 499 F.3d 1170, 1171 (10th Cir. 2007) (Lucero, J., dissenting from denial of rehearing en banc); see also infra notes 60-62 and accompanying text (discussing Judge Lucero's dissent).
24. This Article uses the terms "city" and "municipality" throughout, but its analysis applies equally where the park land is owned by park districts and any other form of local government, such as villages. Also, the Article's focus is on municipalities based on the case at issue; many, if not all, of the points made here would apply to other levels of government.
25. See Brief Amicus Curiae of the Cities of Casper, Wyoming et al., in Support of the Petition for Writ of Certiorari at 1-5, Pleasant Grove City v. Summum, 128 S. Ct. 1737 (Dec. 20, 2007) (No. 07-665) [hereinafter Casper Brief); Chuck Oxlex, Boise Faces Phelps Controversy, ASSOCIATED PRESS, Dec. 3, 2003, available at http://www.religionnewsblog. com/5332/boise-faces-phelps-controversy.
26. Casper Brief, supra note 17, at 2-3; Oxlex, supra note 17. The monument states: "MATTHEW SHEPARD Entered Hell October 12, 1998, in Defiance of God's Warning 'thou shalt not lie with mankind as with womankind; it is abomination, [sic]' Leviticus 18:22." Casper Brief, supra note 17, at 3.
27. See Oxlex, supra note 17.
28. The controversy began in response to a predecessor Tenth Circuit decision, City of Ogden v. Summum, 297 F.3d 995 (10th Cir. 2002), discussed infra Part III.B. Casper Brief, supra note 17, at 2.
29. Casper City, Wyoming, responded to Phelps by moving its monument to a newly created "Historical Monument Plaza" in 2007, id., which does not appear to be a viable option under the Pleasant Grove decision.
30. See infra note 182 and accompanying text.
31. See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 553-57, 562, 564-67 (2005) (finding that the government's promotion of beef consumption through advertisements funded by beef-producers' tax was not unconstitutional compelled speech);
32. Rust v. Sullivan, 500 U.S. 173, 177-78, 203 (1991) (allowing government's promotion of pro-life policy through selective funding of family planning clinics).
33. See also Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) ("We hold that when public employees make statements pursuant to their official duties, they are not speaking as private citizens for First Amendment purposes . . . .");
34. id. at 436-39 (Souter, J., dissenting) (characterizing majority opinion as erroneously applying government speech doctrine).
35. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 572-73 (1998) (arts funding);
36. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 669 (1998) (public broadcasting).
37. See, e.g., People for the Ethical Treatment of Animals, Inc. v. Gittens, 414 F.3d 23, 28-31 (D.C. Cir. 2005) (holding that elephant and donkey sidewalk sculptures were government speech);
38. Wells v. City of Denver, 257 F.3d 1132, 1139-43 (10th Cir. 2001) (holding a sign listing corporate sponsors of city holiday display was government speech).
39. See Gittens, 414 F.3d at 28, 30;
40. Wells, 257 F.3d at 1141.
41. See Summum v. Pleasant Grove City, 499 F.3d 1170, 1175-77 (10th Cir. 2007) (McConnell, J., dissenting from denial of rehearing en banc);
42. Summum v. City of Ogden, 297 F.3d 995, 1004-05 (10th Cir. 2002);
43. see also infra Part III.B (discussing the shortcomings of Ogden's application of the four-factor test). Pleasant Grove's brief in the Supreme Court did not address this now-standard test. See Brief for Petitioners, supra note 2 at 18-20 (summary of argument).
44. Approaching the issue from different angles, one student note nicely analyzed the Tenth Circuit decision, but it focused on forum analysis and lower court cases' treatment of permanent-versus-temporary structures in public parks. See Keenan Lorenz, Survey, Summum v. Pleasant Grove City; The Tenth Circuit "Binds the Hands of Local Governments as They Shape the Permanent Character of Their Public Spaces", 85 DENV. U. L. REV. 631, 646-48 (2008);
45. see also Paul E. McGreal, The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums, 103 Nw. U. L. REV. COLLOQUY 185, 193-97 (2008), http://www.law.northwestern.edu/lawreview/colloquy/2008/41/ (theorizing public speech rights on government property in terms of easements). This new easement approach resolves the permanent-temporary issue, but still leaves cities with the unsatisfactory "viewpoint-neutral" scrutiny of their monument selections, that given to limited public forums. See infra Part III.B.
46. See infra Part II. B.
47. See infra Part II.B and Appendix (summarizing results).
48. Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 560, 562 (2005).
49. See Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000) ("When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.").
50. See, e.g., Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1, 49 (2000) (discussing the problem of "ventriloquism").
51. See, e.g., Steven Shiffrin, Government Speech, 27 UCLA L. REV. 565, 610-11 & n.218 (1980) (advocating an "eclectic" approach for government speech in the "intellectual marketplace").
52. The "marketplace of ideas," now a foundational metaphor in First Amendment analysis, was coined by Justice Holmes. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
53. See infra Part III.B.2.
54. See infra Part III.B.4.
55. See infra Part V.A.
56. See infra Part V.B.
57. Pleasant Grove History, http://www.plgrove.org/ (follow "Unique to Pleasant Grove" hyperlink; then follow "Pleasant Grove History" hyperlink) (last visited Oct. 30, 2008).
58. Brief for the United States as Amicus Curiae Supporting Petitioners at 2, Pleasant Grove City v. Summum, 128 S. Ct. 1737 (June 23, 2008) (No. 07-665). The displays include: Old Bell School ([the] oldest known school building in Utah) Pioneer Winter Corral (historic winter sheepfold) Nauvoo Temple Stone (artifact from Mormon Temple in Nauvoo, Illinois) Pioneer Water Well (donated by [the] Lions Club in 1946) Pioneer Granary (built in 1874, donated by Nelson family) [The] Ten Commandments Monument (donated by Fraternal Order of Eagles in 1971) September 11 Monument (project of local Boy Scouts) Petition for Writ of Certiorari at 5, Pleasant Grove, 128 S. Ct. 1737 (Nov. 20, 2007) (No. 07-665).
59. Summum v. Pleasant Grove City, 483 F.3d 1044, 1047 (10th Cir. 2007), cert, granted, 128 S. Ct. 1737 (2008) (No. 07-665).
60. See id.
61. See, e.g., Van Orden v. Perry, 545 U.S. 677, 713 (2005) (Stevens, J., dissenting).
62. Id.
63. Id.
64. Summum, 483 F.3d at 1047;
65. see also About Summum, http://www.summum.us/about/ (last visited Oct. 30, 2008).
66. Summum, 483 F.3d at 1047.
67. Seven Summum Principles, http://www.summum.us/philosophy/principles.shtml (last visited Oct. 30, 2008) (identifying the aphorisms alternatively as "principles").
68. See The Aphorisms of Summum and the Ten Commandments, http://www.summum.us/ philosophy/tencomrnandments.shtml (last visited Oct. 30, 2008);
69. Discourses with Summum Bonem Amen Ra, The First Encounter, http://www.summum.us/insidethepyramid/?class=First Encounter (last visited Oct. 30, 2008) [hereinafter First Encounter]; see also Patty Henetz, Utah-Based Church Melds Wine, Sexuality, Meditation, ASSOCIATED PRESS, Apr. 27, 2002, available at http://www.lubbockonline.com/ stories/042702/rel-0427020109.shtml (last visited Oct. 30, 2008) (noting that Summum founder Claude Nowell changed his name in the early 1980s "to Summum Bonem Amen Ra and goes by Corky Ra"). Interestingly, the group claims that the Seven Aphorisms first were given to Moses on Mount Sinai, but that the Israelites were unable to understand them and so Moses then went back up to Mount Sinai and received the Ten Commandments. The Aphorisms of Summum and the Ten Commandments, supra. The Summum believe that "summa individuals," who were not of this world, appeared to Mr. Ra in his apartment and revealed the information on which he based the Summum philosophy. First Encounter, supra. The group practices mummification of people and pets, and creates and distributes wine to encourage meditation. Henetz, supra.
70. Summum, 483 F.2d at 1047 (internal quotation marks omitted).
71. See also id. at n.l (noting that Summum claims it did not receive the letter, but its president learned of the denial from a newspaper account).
72. Id. at 1047.
73. Id.
74. Id.
75. Id. at 1048.
76. Id. at 1047-48.
77. Anderson v. Salt Lake City Corp., 475 F.2d 29, 30, 34 (10th Cir. 1973).
78. Note that Justice Breyer's controlling concurrence in the Van Orden decision characterized a similar Ten Commandments monument donated by the Eagles as conveying a mixed message, including both the religious and the secular. Van Orden v. Perry, 545 U.S. 677, 703 (2005) (Breyer, J., concurring in the judgment).
79. See Summum v. City of Ogden, 297 F.3d 995, 1002 (10th Cir. 2002) (holding that permanent monuments, on the land of a municipal building, were a nonpublic forum); Summum v. Callaghan, 130 F.3d 906, 916 & n.14, 919 (10th Cir. 1997) (holding that the courthouse lawn was nonpublic forum).
80. See infra notes 145-48 and accompanying text.
81. See Summum, 483 F.3d at 1052 n.4.
82. Id. at 1050-52.
83. See id. at 1054.
84. Id. at 1055, 1057.
85. Summum v. Pleasant Grove City, 499 F.3d 1170 ( 10th Cir. 2007) (Lucero, J., dissenting from denial of rehearing en banc);
86. id. at 1174 (McConnell, J., dissenting from denial of rehearing en banc). In their opinions, Judges Lucero and McConnell also dissented from the denial of the rehearing en banc of Summum v. Duchesne City, 482 F.3d 1263 (10th Cir. 2007), where a city had attempted to transfer to a private party a small plot of land within a public park, on which a challenged Ten Commandments monument stood, and Summum had sued to obtain a similar parcel for its own monument. Id. at 1266.
87. In Duchesne, the Tenth Circuit remanded for a decision on whether the city's transfer complied with state law, noting that even if it did, Summum might have a First Amendment right to display its monument in the park while the Ten Commandments stood. Id. at 1275.
88. The city of Duchesne filed a petition for certiorari to the U.S. Supreme Court on November 21, 2007. Petition for Writ of Certiorari, Duchesne City v. Summum, No. 07-690 (U.S. Nov. 21, 2007), available at http://www.aclj.org/media/pdf/ Duchesne-City-v-Summum-Petition-for-Writ-of- Certiorari-11212007.pdf.
89. The ACLJ, also counsel of record for Pleasant Grove, asked the Supreme Court to hold its decision on Duchesne until its decision on the Pleasant Grove case. Reply to Brief in Opposition at 7, Duchesne, No. 07-690 (U.S. Mar. 7, 2008), available at http://www.aclj.org/media/pdf/ACLJ- Duchesne-Reply-to-Brief-in-Opposition-030708.pdf.
90. Pleasant Grove, 499 F.3d at 1172-73 (Lucero, J., dissenting from denial of rehearing en banc) (quoting Graff v. City of Chicago, 9 F.3d 1309, 1314 (7th Cir. 1993) ("There is no private constitutional right to erect a structure on public property.")) (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49 (1983) (narrowing the relevant forum to an internal mail system, not a school building)).
91. Id. at 1174.
92. Id. at 1175 (McConnell, J., dissenting).
93. Id.
94. Id. at 1176-77.
95. Id. at 1178 (Tacha, C.J., responding to dissent from denial of rehearing en banc).
96. Id. at 1182..
97. See, e.g., Petition for Writ of Certiorari, supra note 37, at 27-29;
98. Brief Amici Curiae of the American Legion et al. in Support of Petitioners for Writ of Certiorari at 6-7, Pleasant Grove City v. Summum, 128 S. Ct. 1737 (U.S. Dec. 20, 2007) (No. 07-665) [hereinafter Brief of the American Legion].
99. The Applicable Responses included 34 different states representing all regions of the United States. There were 71 cities with populations fewer than 100,000, 30 cities with populations from 100,000 to fewer than one million, 15 Applicable Responses not identifying any city, and only one city with more than one-million residents.
100. The term "monument" was broadly defined in the IMLA questionnaire to mean "a permanent fixed structure that must be erected or installed, and which conveys or tends to convey some communicative message." IMLA Brief, supra note 9, app. B, at 5a. Examples were given of various types of monuments, including "memorials" and "public art." See Appendix.
101. See cases cited infra at note 122, and commentary cited infra notes 135, 140, and 168.
102. IMLA Brief, supra note 9, app. A, at la.
103. Id. IMLA sent an e-mail to its approximately 2500 members, which requested that they follow a hyperlink to the "survey monkey" page and complete the questions.
104. Id.
105. For a complete copy of the questionnaire administered, please see id. app. B.
106. The text in the member e-mail was the same as the text in the "Instructions and Purposes" section of the questionnaire. Id. app. A, at la.
107. Id. app. B, at 4a.
108. All questionnaire responses included in this Article were previously made public in the amicus brief. See id. apps. C & D.
109. Also, Question Number 1, which asked respondent's name, position, e-mail, municipality represented and its population, was optional, id. app. B, at 5a;
110. a handful of respondents chose to provide information anonymously, see id. app. D, at 25a-26a. Most, if not all, information provided by respondents also would be publicly available, though not easily accessible, through other sources.
111. As explained in the IMLA brief: Between April 24th and May 15th, 2008, IMLA received a total of 238 responses .... [T]he original deadline, based on the original amicus brief due date, was April 30th, and the bulk of the responses were received within that initial time frame.... Of the 238 total responses, 117 were deemed responsive and used for examples and analysis in these Appendixes and the brief. Of the 238 total responses, 88 gave no response to the substantive questions, but only completed all or part of the optional first question, which requested name, municipality, and contact information. Counsel of Record's assistant sent a follow-up email to these non-respondents (N/R), asking which of a list of potential reasons for not completing any of Questions Nos. 2-16 applied to them. Of the 20 who replied, 16 reported that the municipalities they represent do not display privately-donated monuments, 2 did not have the requested information, 1 had technical difficulties, and 1 was filing a brief in the case. Id. app. A, at 2a. With respect to "non-respondents" and the "applicable responses" that failed to respond on particular questions, no attempt was made to impute data by estimating how respondents would have answered particular questions if they had chosen to do so. In addition, of the 238 total responses, 16 responses were excluded from IMLA's legal analysis for this brief because they were not relevant enough to the legal questions presented in this case (N/A). Three [of the excluded responses] represented municipalities in Canada, and 13 [others] provided responses related to speech activities other than privately-donated, permanent monuments in parks (e.g., temporary banners or murals on a government building). Substantive responses [(i.e., responses that were not N/R)] were excluded from the set of "117 Applicable Responses" (summarized in [the Appendix]) solely because of the reasons stated in this paragraph. Finally, of the 238 total responses, 16 were duplicates, i.e., they self-identified as representing municipalities for which there were one or more other responses. Note that most of those were N/R, but they were counted in this separate category. Some of them contained additional narrative information. In those cases, all narrative information was used, but only one set of multiple-choice answers was counted per municipality. There were no identified inconsistencies. Id. app. A, at 2a-3a.
112. Examples of responses against perceived interests include a number of narrative responses indicating that their municipalities did not, but should, have a written policy, and stories of lawsuits and potential legal exposure. E.g., SurveyMonkey.com Survey Results Generated for Mary Jean Dolan, No. 229 (May 15, 2008) [hereinafter Survey Results] (on file with the Catholic University Law Review) (Boise, Idaho) (commenting on litigation regarding Boise's Ten Commandments monument removal, enjoinment of removal, and public referendum).
113. Also, some of the "non-applicable" responses, described supra note 75 (for example, government building murals and memorial brick programs), appear to reflect an incorrect assumption that those contexts are legally indistinguishable from the donated monuments context. See infra note 187 and accompanying text. That the lines between government speech and forum analysis remain unclear, generally, is shown by this case, as well as by the rash of specialty license plate cases.
114. See infra note 146.
115. Finally, most respondents appeared to be general municipal law practitioners, rather than First Amendment or appellate specialists. See, e.g., Survey Results, supra, No. 197 (Boulder County, Colo.) ("Boulder County Attorney");
116. id. No. 32 (Moorehead, Minn.) ("City Attorney");
117. id. No. 26 (Neenah, Wis.) ("City Attorney/HR Director");
118. id. No. 28 (Sheboygan, Wis.) ("City Attorney");
119. id. No. 27 (Wheeling, W. Va.) ("City Solicitor").
120. See Appendix. The only analysis of an independent variable, population of municipality, did not show any observable differences between municipalities with populations fewer than and more than 100,000 people. See Survey Results, supra note 76, Nos. 67, 79, 117, 162, 197, 228, 229, 232, 235.
121. Only two municipalities with populations of more than one million responded. Id. No. 129 (San Antonio, Tex.);
122. id. No. 158 (Phoenix, Ariz.).
123. Based on conversations with attorneys for three large cities, it appears that gathering information for responses was more burdensome for large cities, which are more likely to involve a larger number of persons in various departments. Telephone Interview with Benna Solomon, Deputy Corporation Counsel, City of Chicago Law Department (Apr. 28, 2008);
124. Telephone Interview with Elise Brühl, Deputy Corporation Counsel, City of Philadelphia Law Department (May 15, 2008);
125. Telephone Interview with Barbara Rosenberg, Appellate Coordinator, Dallas City Attorney Office (May 28, 2008).
126. See Analysis Features, SurveyMonkey.com, http://www.surveymonkey. com/Home-FeaturesDesign.aspx (last visited Oct. 30, 2008).
127. See id.
128. The process of creating, administering, compiling and analyzing the questionnaires followed guidance provided in ARLENE FINK, THE SURVEY HANDBOOK (2d ed. 2003).
129. Guidance on the use of qualitative surveys and convenience sampling for legal analysis was taken from, among other sources, Margareth Etienne, The Declining Utility of the Right to Counsel in Federal Criminal Courts: An Empirical Study on the Diminished Role of Defense Attorney Advocacy Under the Sentencing Guidelines, 92 CAL. L. REV. 425, 436-42 (2004),
130. and Richard Lempert, Empirical Research for Public Policy: With Examples from Family Law and Advice on Securing Funding 15-23 (Univ. Mich. Law Sch. Pub. Law & Legal Theory Working Paper Series, Working Paper No. 95, 2007), available at http://ssrn.com/abstract=1000700.
131. The complete results of the questionnaire are maintained at the author's offices, and additional copies of the responses cited in the Article are on file with the Catholic University Law Review. The results include: (1) the full set of responses (two to three pages from each of the 238 respondents, including the non-respondents, non-applicable responses, and duplicate responses, automatically generated by SurveyMonkey.com); (2) SurveyMonkey.com-automatically-generated summaries of all narrative answers listed by question number (neither listed nor cross-referenced by respondent number); (3) a SurveyMonkey.com-automatically-generated report summarizing all 238 responses, using percentages and bar graphs (not presented in the Appendix, because those numbers are misleading in that they included the non-applicable and duplicate responses); (4) an Excel spreadsheet compiled by the author's assistant, which lists all responses to each question for the "117 Applicable Responses" in a user-friendly presentation; (5) a list identifying the non-respondents, and the reasons given by them, if any; (6) a list identifying the non-applicable responses and the reasons given; and (7) a list of duplicate responses.
132. See Etienne, supra note 79, at 441-42.
133. For an example of that triangulation, see the integration of MPE examples and news reports illustrating the indivisibility of the public-private roles in monuments, as set forth in Part U.C.
134. Ethnography, a paradigm that originated in anthropology but has been used recently in other fields, including law, involves interacting with and observing research subjects. Etienne, supra note 79, at 442 n.58 (citing Barbara Tedlock, Ethnography and Ethnographic Representation, in HANDBOOK OF QUALITATIVE RESEARCH 470 (Norman K. Denzin & Yvonna S. Lincoln eds., 2d ed. 2000)).
135. In her study, Etienne relied on personal experience as a criminal defense attorney to contextualize her interview results. Id. at 442-43.
136. I spent more than ten years as a special legal counsel to the City of Chicago, advising and writing laws and policies on projects that could be analyzed under government speech or public forum doctrines, including donated monuments and public art. Etienne notes that legal practitioner experience could be viewed as a potential source of bias, but "[b]ias ... is not a flaw in ethnography, which is based largely on participation and immersion into the culture or group being studied." Id. at 443 n.61 (citing ROBERT M. EMERSON ET AL., WRITING ETHNOGRAPHIC FIELDNOTES 2(1995)).
137. See infra note 138.
138. See LEVINSON, supra note 8, at 90 (noting that "it is not at all unusual for private individuals or groups to finance monuments," such as many found throughout New York City's Central Park).
139. See, e.g., Survey Results, supra note 76, No. 27 (Wheeling, W. Va.) (Walter Reuther, international labor organizer, bom in the city);
140. id. No. 10 (Anonymous) (John A. Roebling, founder of Roebling Steel, formerly the town's main business).
141. See also id. No. 139 (Olney, 111.) (Robert Ridgway, author, artist, scientist, founder of Bird Haven).
142. Id. No. 197 (Boulder, Colo.) (describing local monuments to both local Native American Chief Niwot and mining history statue).
143. See also id. No. 115 (Benicia, Cal.) (Pony Express monument);
144. id. No. 188 (Spanish Fork, Utah) (statue of Fathers Dominguez and Escalante, first European explorers of area, and monument to city's large Icelandic population); id. No. 198 (Hartford, Conn.) (Hartford Circus Fire memorial).
145. See id. No. 28 (Sheboygan, Wis.).
146. See also, e.g., id. No. 78 (Fredericksburg, Tex.) (monuments to local war heroes);
147. id. No. 211 (Fayetteville, Ark.) (large bronze statue displaying the word "peace" in many world languages).
148. See Summum v. Pleasant Grove City, 483 F.3d 1044, 1047 n.2 (10th Cir. 2007), cert. granted, 128 S. Ct. 1737 (2008) (No. 07-665).
149. Summum v. Pleasant Grove City, 499 F.3d 1170, 1180 (10th Cir. 2007) (Tacha, C.J., response to dissent from denial of rehearing en banc).
150. Survey Results, supra note 76, No. 117 (Kansas City, Mo.).
151. Id.
152. Id. No. 60 (Cedar City, Utah).
153. Brief of the American Legion, supra note 68, at 11 n.12 (documenting the private donations and donors for listed monuments).
154. TIMOTHY J. GILFOYLE, MILLENNIUM PARK: CREATING A CHICAGO LANDMARK 278, 291 (2006).
155. See id. at 280.
156. Id. at 277.
157. See id. at 279-80, 286-87, 290-91; Millennium Park History, http://www. millenniumpark.org/parkhistory/ (last visited Oct. 30, 2008). This information regarding implementation was confirmed by telephone interview with Ed Uhlir, Project Director, Millennium Park on June 17, 2008.
158. See Fund-raiser Will Help Enhance Area, LAKE GENEVA REGIONAL NEWS, June 24, 2004, http://www.lakegenevanews.net/Articles-i-2004-06-24-89458.112112-Fundraiser- will-help-enhance-area.html.
159. See id. For additional examples of similar partnerships between the public and private sectors with respect to monuments, see infra note 111 (regarding recent Arthur Ashe and Lincoln monuments in Richmond, Virginia).
160. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 572-73, 586 (1998). The statutory amendment, passed in reaction to funding of art described as homoerotic and sacrilegious, id. at 572, 574-75, counseled, but did not mandate, "taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public," id. at 572 (internal quotation marks omitted).
161. Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 669, 674 (1998) (holding that televised candidate debates are a narrow exception to this discretion, but that an objective lack of support was a reasonable content limitation for that nonpublic forum).
162. Summum v. Pleasant Grove City, 483 F.3d 1044, 1052 n.4 (10th Cir. 2007), cert, granted, 128 S. Ct. 1737 (2008) (No. 07-665);
163. see also id. (citing United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 205 (2003)) (noting that "public library staffs have broad discretion to consider content in making collection decisions").
164. See, e.g., Portland, Or., Admin. R. ARB-PRK-3.01 (Sept. 29, 2004), available at http://www.portlandonline.com/Auditor/index.cfin?a= 68087&c=36767 (including in the policy objectives for accepting gifts and memorials, that gifts are "expected to enhance a park without hindering the quality of the open space").
165. Note that it appears that many municipalities do not have written policies. See, e.g., Survey Results, supra note 76, No. 10 (Anonymous) (no written criteria); No. 26 (Neenah, Wis.) (no criteria); No. 28 (Sheboygan, Wis.) (no criteria); No. 54 (Kalispell, Mont.) (no indication of written criteria); No. 228 (Charlotte, N.C.) (noting "only content review," but no written criteria indicated).
166. See Finley, 524 U.S. at 573.
167. See Forbes, 523 U.S. at 673.
168. Cf. Brief Amicus Curiae of the City of New York in Support of Petitioners at 5-7, Pleasant Grove City v. Summum, 127 S. Ct. 1737 (June 23, 2008) (discussing New York City's atypical ongoing public-art and monument program).
169. For a thorough treatise on government's policy expressions through war monuments, see JAMES M. MAYO, WAR MEMORIALS AS POLITICAL LANDSCAPE: THE AMERICAN EXPERIENCE AND BEYOND 1-13 (1988) (discussing symbolic messages from the perspective of an architecture and urban design professor).
170. See also Nicolas Howe, Thou Shalt Not Misinterpret: Landscape as Legal Performance, 98 ANNALS OF THE ASS'N OF AM. GEOGRAPHERS 435, 437 (2008) ("Monuments ... are the most obvious and ubiquitous means by which the nation-state signifies itself in the landscape. By arousing feelings of metaphysical belonging and focusing them on a symbol of historical and geographic subjectivity, they give concrete form to collective memory." (citation omitted)).
171. Cf. Randall P. Bezanson, Art and the Constitution, 93 IOWA L. REV. 1593, 1596-97, 1601 (2008) (submitting that "nonpropositional" art should be protected by the First Amendment as art, not as speech, and describing such art as coming from a "sensual response ... an act of newly imagined meaning" by each individual viewer, as opposed to speech, in which the speaker intends, and the audience understands, a cognitive message). I suggest that abstract art, where it is publicly owned and displayed, carries an intended broad identity message.
172. See, e.g., Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 562-65 (2005) (promoting beef consumption through advertisements funded by tax on beef producers was not unconstitutionally compelled speech); Rust v. Sullivan, 500 U.S. 173, 177-79 (1991) (allowing the promotion of pro-life policy through selective funding of family planning clinics).
173. See supra Part U.C.
174. See Survey Results, supra note 76, No. 235 (Tucson, Ariz.) (responding that display of a donated statue of Pancho Villa, a Mexican revolutionary leader who advocated for agrarian reform and the poor, has prompted opposition by some who view the figure as an "outlaw" rather than a "hero").
175. See Jeremy Redmon & Lindsay Kastner, Lincoln Statue Unveiled, TIMES-DISPATCH (Richmond, Va.), Apr. 6, 2003, at Bl.
176. There were extensive protests surrounding a new Abraham Lincoln monument, which was initiated by the U.S. Historical Society, a Richmond-based Organization. Id.
177. The Richmond City Council passed a resolution calling the statue a "symbol of unity and reconciliation" and approved a public contribution of up to $45,000 toward the granite plaza at its location on nearby federal park land. Id.
178. See, e.g., Survey Results, supra note 76, No. 92 (Longview, Wash.) (noting that some now question the accuracy of a statue's portrayal of Sacajawea, the Shoshone woman who was a guide for Lewis and Clark).
179. See also infra Part III.B.2 (regarding the ongoing right to edit a message over time when citizens start to object).
180. J. Michael Martinez & Robert M. Harris, Graves, Worms, and Epitaphs: Confederate Monuments in the Southern Landscape, in CONFEDERATE SYMBOLS IN THE CONTEMPORARY SOUTH 130, 170-72 (J. Michael Martinez et al. eds., 2000).
181. Race-Tinged Furor Stalls Arthur Ashe Memorial, N.Y. TIMES, July 9, 1995, at 20.
182. See, e.g., CONFEDERATE SYMBOLS IN THE CONTEMPORARY SOUTH (J. Michael Martinez et al. eds., 2000) (collecting multi-disciplinary essays against preserving symbols of racial oppression and for preserving Southern history).
183. Cf. LEVINSON, supra note 8, at 116-19, 127-28 (concluding, after considering numerous possible responses to historical monument speech that has become offensive, that the best response is government counter-speech - for example, display of monuments honoring successful African American citizens). Note as well that a private organization, the "Virginia Heroes," originated the proposal for the Ashe monument and presented the project to Richmond's City Council. See The Arthur Ashe Monument, http://www.cvco.org/arts/psculpt/ashe (last visited Oct. 30, 2008).
184. See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 561 (2005). Johanns was a compelled-subsidy case, rather than a forum dispute, and involved a government program with a specific policy message. Id. at 553-54.
185. See also Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 964-65 (9th Cir. 2008) (noting distinctions but applying the appellate courts' four-factor test and Johanns after observing that both tests are directed at the same issues).
186. Johanns, 544 U.S. at 554, 560.
187. Id. at 560.
188. Id. at 562.
189. Id. at 553 (citing Beef Promotion and Research Act of 1995, Pub. L. No. 99-198, 99 Stat. 1597 (codified at 7 U.S.C. § 2901(b))).
190. Id. at 561.
191. E.g., Survey Results, supra note 76, No. 162 (St. Petersburg, Fla.) (new ordinance requires legislative consideration and approval of historic significance of any proposed monument).
192. E.g., id. No. 79 (Newport News, Va.) (written policy regarding proposed monuments for military-related actions requires city review and approval of text detailing actions of honorées prior to approval of monument).
193. E.g., id. No. 232 (Tucson, Ariz.) ("[The] wording is sometimes modified to be sensitive to a large audience[.] In the case of a monument (The Morman [sic] Battalion), [the] artist was asked to reconsider physical traits that appeared to lack sensitivity to a diverse population.").
194. See Appendix (citing 93-of the 117-applicable responses that stated their municipal client required legislative acceptance of all monuments prior to installation).
195. Municipal legislative bodies generally are required by state law to deliberate and vote in meetings open to the public, and to vote only on agenda items of which the public has been given advance notice. See, e.g., Open Meetings Act, 5 ILL. COMP. STAT. ANN. 120 (West 2005 & Supp. 2008).
196. See supra notes 86-87 and accompanying text.
197. Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 553-55 (2005).
198. At least at oral argument, a number of the Justices appeared to agree that display of a monument on government property shows that government has adopted that message. For example, Justice Alito asked, "Isn't merely allowing the monument to be built on public property sufficient acceptance?", Transcript of Oral Argument, supra note 14, at 48, and Justice Souter noted that no one would doubt that a homeowner who agreed to display a McCain sign on his lawn supported McCain, id. at 49.
199. E.g., compare Welcome to Village of Hinsdale, Illinois, http://www.villageof hinsdale.org/ (last visited Oct. 30, 2008) (describing municipality as one of "natural beauty, hometown charm, and a friendly community atmosphere"), with Oak Park, Illinois, Village Background, htrp://www.oak-park-us./Village-Background.html (last visited Oct. 30, 2008) (describing municipality as "known for its architectural heritage and diverse population," followed by details on diversity).
200. Bd. of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235 (2000) (quoted in Johanns, 544 U.S. at 575 (Souter, J., dissenting)).
201. See Johanns, 544 U.S. at 563-64.
202. Cf. Hinrichs v. Speaker of the House of Reps, of the Ind. Gen. Assembly, 506 F.3d 584, 598 (7th Cir. 2007) (holding state taxpayers to same standing requirements as federal taxpayers for Establishment Clause-based suits).
203. Applying Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553 (2007), which narrowly circumscribed taxpayer standing in Establishment Clause suits, the Seventh Circuit noted in Hinrichs that the Court has always treated standing of municipal taxpayers more generously because their connection to the use of municipal funds is deemed more '"direct and immediate.'" Hinrichs, 506 F.3d at 590-93 (quoting Frothingham v. Mellon, 262 U.S. 447, 486 (1923)) (citing Hein, 127 S. Ct. 2553 (2007)).
204. See, e.g., Gia B. Lee, Persuasion, Transparency, and Government Speech, 56 HASTINGS L.J. 983, 988-89 (2005) ("[W]hen the government participates in public debate, it should make the fact of its participation transparent. . .. [T]he legitimacy of those communications depends on the public's ability to identify what the government says and how it does so.").
205. Johanns, 544 U.S. at 577 (Souter, J., dissenting) (alteration in original).
206. See, e.g., Freedom of Information Act, 5 U.S.C. § 552 (2000).
207. See, e.g., Graf v. City of Chicago, 9 F.3d 1309, 1313 (7th Cir. 1993) (citing Chi., Ill., Mun. Code § 10-28-040) (discussing a typical ordinance generally prohibiting erection of structures or stationary objects on any public ground);
208. Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045, 1048-49 (2d Cir. 1988) (holding that there is no First Amendment right to install a sculpture on government property; sale of art to government gave government the discretion to determine location of any display); see also LEVINSON, supra note 8, at 90, 126-27 (noting the difference in public perception between monuments, which have the government's imprimatur and, for example, airport solicitors, which people assume are merely tolerated by the government in deference to First Amendment rights).
209. Newsracks are a distinguishable case. Because freedom of the press is an independent guarantee, municipal permission to install a newsrack conveys no governmental approval of the content of the newspapers. Thus, City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 412, 429-30 (1993) (finding city ban on newsracks for commercial handbills, but not newspapers, impermissible content-based regulation), is inapposite here.
210. Interpreting an Eagles' donor plaque virtually identical to the one in Pleasant Grove, one leading scholar stated that "the inscription implies, clearly and correctly, that it is the state which owns the monument. These Ten Commandments are, literally and constitutionally, the state's own words." Erwin Chemerinsky, Why Justice Breyer Was Wrong in Van Orden v. Perry, 14 WM. & MARY BILL RTS. J. 1, 8 (2005). See infra Part V.B.I. for a discussion of the Establishment Clause implications here.
211. But see Randall P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA L. REV. 1377, 1482-83 (2001) (rejecting use of the government speech approach to avoid unwanted attribution and requiring use of disclaimers for that purpose).
212. Cf. Dolan, supra note 7, at 126 (asserting that disclaimers are ineffective or inappropriate in certain contexts). As shown throughout this Article, monuments displayed on government property are another context where disclaimers are not needed to clarify the government's role.
213. A recent comprehensive account of government speech, Helen Norton, The Measure of Government Speech: Identifying Expression's Source, 88 B.U. L. REV. 587 (2008), proposes that the government speech defense be allowed only under two conditions: (1) "government must expressly claim the speech as its own when it authorizes or creates a communication and [(2)] onlookers must understand the message to be government's at the time of its delivery."
214. Id. at 599.
215. While the "expressly claim" language may suggest Summum's counsel's requirement that the city must explicitly "adopt" the Ten Commandments monument before it can use a government speech defense, e.g., Transcript of Oral Argument, supra note 14, at 37-38, Professor Norton recently wrote that under her framework, Pleasant Grove City has a strong claim for government speech where it is using its own property for an expressive purpose, Posting of Helen Norton to First Amendment Law Prof Blog, http://lawprofessors.typepad.com/firstamendment/ 2008/10/city-parks-monu.html (Oct. 31, 2008).
216. See Brief for Respondent at 33-34, Pleasant Grove City v. Summum, 128 S. Ct. 1737 (Aug. 15, 2008) (No. 07-665) (suggesting the need for express control of content through resolution or a sign stating that monument is government's message).
217. See Appendix (displaying responses to question No. 16, regarding "Public Opposition to the Existence or Location of Monument").
218. Survey Results, supra note 76, No. 32 (Moorhead, Minn.) (changing the wording on a private-donor-initiated "Norwegian Stave Church" display to make the tone "more historical, [and] less religious").
219. E.g., id. No. 26 (Neenah, Wis.) (noting that the "Playing in the Rain" fountain was opposed by neighbors, but "city leaders stuck by the decision to place the fountain in the downtown park," and it is now a "beloved landmark[]").
220. Wells v. City of Denver, 257 F.3d 1132, 1141-43 (10th Cir. 2001) (explaining that a sign listing corporate sponsors of city's holiday display was government speech, not forum speech, and there was no First Amendment obligation to allow other private speech); Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093-95 (8th Cir. 2000) (holding that for a public radio station to reject the KKK as a sponsor, and thus exclude it from broadcast acknowledgement of sponsors, did not violate the First Amendment).
221. See, e.g., Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956 (9th Cir. 2008) (asserting that message on specialty license plate was primarily private speech, and thus created a limited public forum). See also infra note 156 (discussing additional cases).
222. E.g., Stanton, 515 F.3d at 964 (internal quotation marks omitted);
223. Wells, 257 F.3d at 1141.
224. See Summum v. City of Ogden, 297 F.3d 995, 997-98, 1004-06 (10th Cir. 2002).
225. See Summum v. Pleasant Grove City, 483 F.3d 1044, 1047 n.2, 1050-52 (10th Cir. 2007), cert. granted, 128 S. Ct. 1737 (2008) (No. 07-665).
226. See discussion supra Part U.C.
227. Ogden, 297 F.3d at 1004.
228. See GILFOYLE, supra note 94, at 290. The six-year, $475,000,000 project also included Anish Kapoor's Cloud Gate sculpture and Frank Gehry's Pritzker Pavilion. Millennium Park, Cloud Gate, http://www.millenniumpark.org/artandarchitecture/cloud-gate.html (last visited Oct. 30, 2008);
229. Millennium Park, Jay Pritzker Pavilion, http://www.millenniumpark.org/ artand architecture/Jay-Pritzker-Pavilion.html (last visited Oct. 30, 2008).
230. See Millennium Park, The Crown Fountain, http://www. millenniumpark.org/artand architecture/crownfountain.html (last visited Oct. 30, 2008).
231. See Wells v. City of Denver, 257 F.3d 1132, 1141 (10th Cir. 2001).
232. See infra Part V.B.I for discussion of the Establishment Clause implications. Legislative intent is often hard to determine conclusively.
233. See, e.g., Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARV. J.L. & PUB. POL'Y 59, 60-64 (1988) (stating that ascertaining "the mental pattern of the legislature" assumes that it speaks with one voice and "ignores the fact that laws are born of compromise"). This may be especially true on the city council level, which typically produces fewer records than the federal and even state levels; the published decisions do not include any such discussion.
234. See Wells, 257 F.3d at 1141-42;
235. Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1093 (8th Cir. 2000). In the specialty-license-plate cases, some courts have held that the first factor is not met because the state's primary purpose when it sells these plates is to raise revenue. E.g., Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 966 (9th Cir. 2008);
236. Choose Life 111., Inc. v. White, No. 04 C 4316, 2007 WL 178455, at *5 (N.D. Ill. Jan. 19, 2007).
237. Other courts conclude differently despite the revenue-raising aspect. See, e.g., Am. Civil Liberties Union of Tenn. v. Bredesen, 441 F.3d 370, 371-72, 376-77 (6th Cir. 2006) (holding where legislature affirmatively voted to create a "Choose Life" specialty plate, its primary purpose was government speech); Planned Parenthood of S.C. Inc. v. Rose, 361 F.3d 786, 793 (4th Cir. 2004) (finding primary purpose of the specialty license plate program to promote pro-life views).
238. Summum v. City of Ogden, 297 F.3d 995, 1004 (10th Cir. 2002).
239. See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 561-62 (2005).
240. See supra Part III.A.
241. Robert Justin Lipkin, Down with Flags, Statues, and Monuments: Cultural Memory in a Deliberative Democracy, 7 U. CHI. L. SCH. ROUNDTABLE 239, 262 (2000).
242. Id. at 263.
243. The plaque originally read: "To the Heroes Who Have Fallen in the Battles with the Savage Indians in the Territory of New Mexico." Id. at 262.
244. "[T]he plaque now reads [in part]: 'Battles with [ ] Indians.'" Id. at 263 (third alteration in original).
245. Id. at 263.
246. The new caveat includes: "Monument texts reflect the character of the times in which they are written .... Attitudes change and prejudices hopefully dissolve." Id.
247. LEVINSON, supra note 8, at 4.
248. See id. at 45-52 (explaining various attempts to tear down the monument and efforts to change its signage, including the current, vague caveat: "A CONFLICT OF THE PAST THAT SHOULD TEACH US LESSONS FOR THE FUTURE").
249. Cf. Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1094 (8th Cir. 2000) (holding second factor of retained control met where public radio staff composed, reviewed, and edited sponsor acknowledgements to ensure compliance with FCC and station guidelines).
250. See Summum v. City of Ogden, 297 F.3d 995, 1004-05 (10th Cir. 2002).
251. See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 560-61 (2005).
252. E.g., Caroline Mala Corbin, Mixed Speech: When Speech is Both Private and Governmental, 83 N.Y.U. L. REV. 605, 619-23 (2008) (using these cases as a springboard for a comprehensive analysis of the problem of mixed speech and proposing use of a rigorous intermediate scrutiny standard); Saumya Manohar, Comment, Look Who's Talking Now: "Choose Life" Plates and Deceptive Government Speech, 25 YALE L. & POL'Y REV. 229, 232-34 (2005).
253. Note that Justice Souter specifically recognized the issue as a problem of "mixed speech" in the oral argument, asking "isn't the tough issue here the claim that there is - is in fact a mixture, that it is both Government and private. . . . [H]ow do you think we ought to deal with the mixture issue." Transcript of Oral Argument, supra note 14, at 10-11.
254. Corbin, supra note 168, at 620 & n.72 (reviewing details of state programs and noting fourteen states with at least one hundred such plates and eight states with at least fifty).
255. See Ariz. Life Coal., Inc. v. Stanton, 515 F.3d 956, 967 (9th Cir. 2008) (collecting cases);
256. Choose Life 111., Inc. v. White, No. 04 C 4316, 2007 WL 178455, at *6 (N.D. Ill. Jan. 19, 2007) ("[T]he specialty plate gives private individuals the option to identify with, purchase, and display one of the authorized messages.
257. Indeed, no one who sees a specialty license plate imprinted with the phrase 'Choose Life' would doubt that the owner of that vehicle holds a pro-life viewpoint."), rev 'd in part, vacated in part, No. 07-1349, 2008 WL 4821759, at *9 (7th Cir. Nov. 7, 2008) (writing that the circuit courts' four-part test "can be distilled (and simplified) by focusing on the following inquiry: Under all the circumstances, would a reasonable person consider the speaker to be the government or a private party?").
258. Cf. Wooley v. Maynard, 430 U.S. 705, 713, 715 (1977) (holding that because any message on a license plate is connected with the owner or driver of the vehicle, requiring all residents to display the state's motto on their cars' license plates is unconstitutional compelled speech).
259. Summum v. City of Ogden, 297 F.3d 995, 1005 ( 10th Cir. 2002).
260. See Appendix (listing responses to question Nos. 9-12).
261. Wells v. City of Denver, 257 F.3d 1132, 1142 (10th Cir. 2001).
262. See also Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1094 (8th Cir. 2000) (noting radio station's ultimate responsibility for all broadcasts, including sponsor acknowledgments, because station was subject to legal sanctions for failure to comply with its statutory obligations).
263. Cf. LEVINSON, supra note 8, at 33 (describing a New York Times report that "at least one lawsuit has been filed, in Franklin, Tennessee, seeking not only removal of a statue of a Confederate soldier that towers over the town square but also $44 million in damages").
264. Summum v. Pleasant Grove City, 483 F.3d 1044, 1050-52 (10th Cir. 2007), cert. granted, 128 S. Ct. 1737 (2008) (No. 07-665).
265. E.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
266. See, e.g., CITY OF CHICAGO, IL., MUN. CODE, § 10-28-750 et seq. (newsracks); id. § 10-28-800 et seq. (advertising benches).
267. Thomas v. Chi. Park Dist, 534 U.S. 316, 318, 325 (2002) (citing CHICAGO PARK DlST. CODE, ch. VII, §§ C.3.a(l), C.5.a.).
268. That governments often spend large amounts of taxpayer funds for the installation process highlights that difference. See supra text accompanying note 99 ($40,000 for installation of donated fountain in Lake Geneva, Wisconsin); supra note 111 (Richmond, Virginia, appropriated $45,000 for granite plaza for donated Lincoln statue).
269. For that reason, Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753, 758, 770 (1995) (holding that denial of Ku Klux Klan's request to place a cross in public square during Christmas season violated First Amendment), provides no traction here. Unattended temporary displays over a period of days or weeks, such as the holiday displays and art festival booths that previously had been allowed there, are more similar to assemblies than to structures, especially in terms of their effect on the public's use of the space.
270. Cf. Members of the City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 791 & n.l, 817 (1984) (upholding ordinance prohibiting all signs on public property, including light poles where private speakers frequently posted signs).
271. See Survey Results, supra note 76, No. 229 (Boise, Idaho); supra note 19 and accompanying text.
272. See Survey Results, supra note 76, No. 56 (Madison, Wis.); Appendix (listing the Madison monument in the responses to Question No. 16).
273. Cf. Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003, 1005, 1016-17 (9th Cir. 2000) (holding that, as one of the original analogous "government speech" cases, a school bulletin board promoting gay and lesbian awareness month was government speech, and therefore teacher had no First Amendment right to post anti-homosexual materials).
274. Survey Results, supra note 76, No. 229 (Boise, Idaho).
275. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983). This Article uses the term "limited public forum" throughout to mean a context where the Perry "reasonable content limitations/no viewpoint discrimination" test applies. There continues to be controversy in the courts about terminology, and whether a "nonpublic forum" is equivalent.
276. See Dolan, supra note 7, at 77 n.27 (analyzing at length); see also Summum v. City of Ogden, 297 F.3d 995, 1002 & n.4 (10th Cir. 2002).
277. In an earlier article I proposed, as one limiting criteria for government speech, that the viewpoint expressed must be consistent with the government's stated program purposes and limitations. See Dolan, supra note 7, at 114. That proposal does not transfer well to the somewhat unique, symbolic role of monuments. Part V of this Article provides other limits on government speech that apply to monuments, as well as additional reasons that finding government speech here is consistent with broader First Amendment values.
278. See Appendix (listing responses to questions Nos. 5-6, where only 16 out of 117 Applicable Responses had written policies and only 21 asserted "established practices"). Especially where the monuments displayed were initiated by private donors, expecting a written policy does not make sense. Regarding the circumstances of the donation, 71 Responses answered that the municipality had only "private-donor initiated" (PDI) monuments, 6 answered that that the municipality had only monuments where the "private donor responded to municipal request for proposals" (PDR), and 101 gave multiple responses, including monuments that were PDI. (Note that the third choice for this question was "other.") See Appendix; see also IMLA Brief, supra note 9, app. B, at 6a.
279. For example, some municipalities allow individuals to purchase a bench or tree for the park and include a plaque honoring a deceased family member. These programs - differing in kind and scope from the occasional acceptance of a monument - are more likely to be held limited public forums. Cf. Tong v. Chicago Park Dist., 316 F. Supp. 2d 645, 647-48 (N.D. 111. 2004) (holding that fundraiser where donors gave money in exchange for opportunity to inscribe brick for park walkway was a limited public forum, so that impermissible viewpoint discrimination where rejected the religious message: "Jesus is the cornerstone").
280. See, e.g., Christ's Bride Ministries, Inc. v. Se. Pa. Transp. Auth., 148 F.3d 242, 248, 252, 255 (3d Cir. 1998) (finding advertising space in SEPTA train and bus stations a designated public forum, so that strict scrutiny applied, due to "SEPTA'S practice of permitting virtually unlimited access to the forum").
281. See Survey Results, supra note 76, No. 54 (Kalispell, Mont.). Other examples from the MPEs of standards for donated monuments include: Missoula, Montana (No. 98) ("[A]ll installations [must] be approved for content, political/public acceptability and legality as well as derogatory language or images."); South Portland, Maine (No. 52) ("[S]uitable public purpose related to location and no endorsement of political or religious viewpoints[.]").
282. See Dolan, supra note 7, at 84-91 (collecting and analyzing cases).
283. See, e.g., Robb v. Hungerbeeler, 370 F.3d 735, 737-39 (8th Cir. 2004);
284. Cuffley v. Mickes, 208 F.3d 702, 704, 712 (8th Cir. 2000).
285. Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1087, 1095 (8th Cir. 2000). In a 2004 article, I pointed out: The most straightforward way of interpreting the University of Missouri case is to cite the Eighth Circuit's observation that there is no First Amendment right to have one's money accepted as a contribution to a government enterprise, and thus no corresponding right to make the government publicly thank the individual for that money. That is a facile solution, though, because ... the Adopt-a-Highway cases could be portrayed the same way, but there was a different outcome. The courts could have said that there is no First Amendment right to be allowed to clean up a public highway, and thus no corresponding right to force the government to acknowledge an organization's work and publicize its name[, but it did not]. Dolan, supra note 7, at 123 (footnote omitted).
286. See also Norton, supra note 140, at 135-41 (analyzing the contrast between the government thanks in the Adopt-a-Highway and the sponsor acknowledgements in University of Missouri and Wells).
287. Dolan, supra note 7, at 121-27. Note that my argument is not based in any claim that the government itself has protectable First Amendment rights. Id. at 125.
288. But see David Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. REV. 1637, 1676-77 (2006) (arguing for First Amendment protection of government speech under circumstances where constitutive of the entity's public function and supportive of democratic self-governance).
289. People for the Ethical Treatment of Animals v. Gittens, 414 F.3d 23, 25, 28 (D.C. Cir. 2005).
290. Cf. People for the Ethical Treatment of Animals v. Giuliani, 105 F. Supp. 2d 294, 322-23 (S.D.N.Y. 2000), aff'd, 18 Fed. App'x 35 (2d Cir. 2001) (earlier case with similar outcome that relied on government speech principles, while purportedly applying limited public forum doctrine).
291. Gittens,414F.3d at 25.
292. Id. at 26.
293. Id. (internal quotation marks omitted).
294. Id. at 27.
295. Id. at 29-30.
296. Putnam Pit, Inc. v. City of Cookeville (Putnam II), 76 F. App'x 607, 609 (6th Cir. 2003).
297. See id. at 610.
298. To date, the only similar case is Page v. Lexington County School District One, 531 F.3d 275 (4th Cir. 2008) (holding, in a case where a school district's web page stated its opposition to a pending "school choice" bill, and hyperlinked to the websites of two organizations also fighting the legislation, the state school board association and a private organization formed to oppose the bill, that those hyperlinks were the school district's government speech).
299. Putnam II, 76 F. App'x at 610.
300. Id. at 611.
301. Id. atoll, 613.
302. Putnam Pit, Inc. v. City of Cookeville (Putnam I), 221 F.3d 834, 845-46 (6th Cir. 2000).
303. Putnam II, 76 F. App'x at 614.
304. Survey Results, supra note 76, No. 30.
305. Id.
306. See infra notes 212-13.
307. See Rust v. Sullivan, 500 U.S. 173, 199-200 (1990).
308. See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 563-64 (2005).
309. Rust, 500 U.S. at 177-80.
310. Rust sparked "sharply critical academic commentary." Robert C. Post, Essay, Subsidized Speech, 106 YALE L.J. 151, 168 & n. 103 (1996) (collecting articles).
311. Johanns, 544 U.S. at 553-55, 566-67.
312. See also Seana Shiffrin, Compelled Association, Morality, and Market Dynamics, 41 LOY. L.A. L. REV. 317, 321 & n.26 (2007) (collecting criticism of Johanns).
313. 539 U.S. 194, 198-201 (2003) (upholding as government speech a federal-funding condition requiring public libraries to use Internet-pornography filtering device, although filter is both over- and under-inclusive).
314. Id. at 234-35 (Souter, J., dissenting).
315. See also Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 572 (1998) (regarding applications for federal arts funding screened for indecency and "American values").
316. Cf. Thomas P. Crocker, Displacing Dissent: The Role of "Place" in First Amendment Jurisprudence, 75 FORDHAM L. REV. 2587, 2588-90 (2007) (asserting that in various contexts, such as protesting at political party conventions and in the presence of the president, the regulation of "place" under the guise of security concerns is increasingly rendering dissent invisible).
317. Survey Results, supra note 76, No. 54 (Kalispell, Mont.).
318. Id.
319. Id No. 67 (Boise, Idaho).
320. See Appendix. Of the 117 Applicable Responses, 32 answered "yes" to the following question: "Are you aware of any instances where members of the public engaged in any of the above-described speech-related activities in the area(s) adjacent to the monuments) where the content of the speech was in some manner related to the monument(s) or its implied or stated message(s)?"
321. United States v. Am. Library Ass'n, Inc., 593 U.S. 194, 214-15 (2003) (Kennedy, J., concurring in the judgment);
322. id. at 219 (Breyer, J., concurring in the judgment). The plurality relied on the government speech rationale to uphold the federal filtering requirement.
323. See id. at 211-14 & n.7 (opinion of Rehnquist, C.J.) (plurality opinion).
324. See, e.g., Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 437;
325. Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2321 (1989).
326. E.g., Collin v. Smith, 578 F.2d 1197, 1198-99 (7th Cir. 1978) (upholding right of Nazis to march in then-primarily Jewish suburb of Skokie, Illinois).
327. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). See also ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 925-30 (3d ed. 2006) (reviewing the four main theories underlying First Amendment freedom of expression as self-governance, truth, autonomy, and tolerance).
328. For a recent overview of the theoretical underpinnings of the First Amendment speech clause jurisprudence, see Crocker, supra note 216, at 2592-96, 2602-08.
329. See supra note 18 and accompanying text.
330. U.S. CONST. amend. I.
331. Summum v. Pleasant Grove City, 483 F.3d 1044, 1047, 1048 n.3 (10th Cir. 2007), cert, granted, 128 S. Ct. 1737 (2008) (No. 07-665).
332. Summum's complaint alleged violations of the U.S. Constitution's Free Speech Clause and the Utah Constitution's free expression and establishment provisions. Id. at 1047.
333. The Tenth Circuit held that Summum waived its Utah Constitution claims because they were not argued on appeal. Id. at 1048 n.3.
334. Despite this fact, and despite the petitioner's counsel's consistent efforts to focus only on the issues presented, the Ten Commandments monument was unavoidable at oral argument, from the opening question, (Chief Justice Roberts: "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 Free Speech Clause, the more it seems to me you're walking into a trap under the Establishment Clause," Transcript of Oral Argument, supra note 14, at 4), through the last question (Justice Souter: "The Government isn't disclaiming [the Ten Commandments monument]. [Y]ou want this clear statement. . . . [I]t would also be the poison pill in the Establishment Clause. . . . [T]hat's okay with me.... I was a Van Orden dissenter," id. at 63). The issue before the Court, of course, is not whether the Ten Commandments must come down, but whether the Free Speech Clause supports a court ordering the city to erect the Summum's monument.
335. See Van Orden v. Perry, 545 U.S. 677, 681-82, 692 (2005).
336. Both are one monument among many in an outdoor park, existing without controversy for thirty-plus years, and both were originally obtained from the Eagles as part of their nationwide campaign against juvenile delinquency. Compare Pleasant Grove, 483 F.3d at 1046 (monument in park since donated by Eagles in 1971), with Van Orden, 545 U.S. at 701-03 (Breyer, J., concurring in the judgment) (monument sat unchallenged on Texas state grounds for forty years).
337. Indeed, some facts in Pleasant Grove are more favorable: Pioneer Park is not part of City Hall grounds (as compared with the Texas State Capitol grounds), and Pleasant Grove arguably has a stronger historical argument because the park as a whole commemorates the Mormon pioneer era of the city's heritage. Pleasant Grove was one of the original Mormon pioneer towns in Utah, founded by a group sent forth in 1850 by Brigham Young, leader of the original 1847 Mormon settlement in Salt Lake City. See Pleasant Grove History, http://plgrove.org/ index.php?option=com-content &task=view&id=2&Itemid=23 (last visited Oct. 30, 2008); Salt Lake City History, http://www.utah.com/cities/slc-history. htm (last visited Oct. 30, 2008).
338. According to Mormon doctrine, the Book of Mormon is translated from Golden Plates that founder Joseph Smith received from a visitation by an angel called Moroni in 1827. See Moroni: Messenger of the Restoration, http://josephsmith.net/josephsmith/v/index.jsp?vgnextoid= 91fa0fbab57f0010VgnVCM100000lf5e340aRCRD (last visited Oct. 30, 2008).
339. For a few of the many law review articles interpreting Van Orden and McCreary, see, for example, Vincent Muñoz, Thou Shalt Not Post the Ten Commandments? McCreary, Van Orden, and the Future of Religious Display Cases, 10 TEX. REV. L. & POL. 357 (2006),
340. and Douglas G. Smith, The Constitutionality of Religious Symbolism After McCreary and Van Orden, 12 TEX. REV. L. & POL. 93 (2007).
341. See also Card v. City of Everett, 520 F.3d 1009, 1010-11, 1021 (9th Cir. 2008) (applying Van Orden, and holding that city's display of Eagles-donated Ten Commandments monument on grounds of the Old City Hall, along with three war memorials, did not violate Establishment Clause).
342. See Van Orden, 545 U.S. at 705 (Breyer, J., concurring in the judgment) (referring to "the Texas display [as] serving a mixed but primarily nonreligious purpose").
343. See Brief for Petitioners, supra note 2, at 8;
344. CHEMERINSKY, supra note 224, at 1225.
345. By contrast, the Tenth Circuit disagreed, instead concluding by saying that finding that the Texas monument did not violate the Establishment Clause is not necessarily equivalent to finding government speech, because under Capital Square v. Pinnette, a display on public property may violate the endorsement test based on appearances, even where the speech is in fact private. Summum, 483 F.3d at 1047 n.2 (citing Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 774 (1995) (O'Connor, J., concurring in part and concurring in the judgment) (controlling opinion)).
346. The incremental approach is demonstrated by the success of Jay Sekulow, counsel for Petitioner Pleasant Grove, who has used the Free Speech Clause to break down earlier strict separationist church-state principles to increase religious-use access in the limited public forum context. The less controversial, generally approved opening of public-building doors to religious viewpoints on social topics originated in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993).
347. Lamb's Chapel led the way to the more troubling after-school religious instruction and prayer in elementary schools in Good News Club v. Milford Central School, 533 U.S. 98 (2001), and then to lower court decisions requiring local government to provide space for some worship services, as in DeBoer v. Village of Oak Park, 267 F.3d 558 (7th Cir. 2001), albeit not yet weekly services, as shown by Bronx Household of Faith v. Board of Education, 492 F.3d 89 (2d Cir. 2007).
348. Another context where incremental legal changes have worked a powerful transformation of public opinion and policy - one I welcome - is the expanding recognition of gay rights. See, e.g., Marc R. Poirier, Piecemeal and Wholesale Approaches Towards Marriage Equality in New Jersey: Is Lewis v. Harris a Dead End or Just a Detour?, 59 RUTGERS L. REV. 291, 297-308 (2007) (summarizing history of rights won over the course of decades and the public's expanding familiarity with, and acceptance of, gay families).
349. See supra notes 3-4.
350. Nonsectarian legislative prayer was upheld in Marsh v. Chambers, 463 U.S. 783 (1983), based on its unique, longstanding practice dating back to the First Congress. Id. at 790.
351. Recently, courts evaluating Free Speech and Free Exercise Clause challenges to legislative prayer practices have borrowed from the new government speech cases to reject the claims of private speakers. See, e.g., Turner v. City Council Fredericksburg, 534 F.3d 352, 354-55 (4th Cir. 2008) (O'Connor, J.) (applying four-part government speech test used by Fourth Circuit in specialty license plate cases and upholding city's nonsectarian prayer policy against claim that it violated speaker's right to name Jesus).
352. More disconcerting was a use of the doctrine to justify government preference among religions. See Simpson v. Chesterfield County, 404 F.3d 276, 279-80, 288 (4th Cir. 2005) (quoting Simpson v. Chesterfield County Bd. of Supervisors, 292 F. Supp. 2d 805, 819 (E.D. Va. 2003) (quoting Rosenberger v. Rector, 515 U.S. 819, 833 (1995))) (rejecting excluded Wiccan's free speech and free exercise complaints re monotheistic prayer policy because legislative prayer is government speech, so that government is free to enlist private speakers to convey its preferred content).
353. The use of the term "government speech" in Establishment Clause challenges generally leads to a different result; thus, considering all uses of those words as one uniform doctrine is problematic. Taking into account that private speech and government speech endorsing religion are distinguishable, holding that ostensibly private speech should be deemed the government's own speech for purposes of Establishment Clause analysis follows from cases like Santa Fe Independent School District v. Doe, 530 U.S. 290, 302 (2000),
354. and not from Johanns or Finley. See Hinrichs v. Bosma, 400 F. Supp. 2d 1103, 1131 (S.D. Ind. 2005) (finding legislative prayer by invited clergy government speech, and holding that allowing sectarian references, where vast majority of speakers were Christian, violated Establishment Clause), rev'd on standing grounds sub nom. Hinrich v. Speaker of House of Representatives of Ind. Gen. Assembly, 506 F.3d 584 (7th Cir. 2007).
355. For a summary of the existing case law, see Robert Luther III & David B. Caddell, Breaking Away From the "Prayer Police ": Why the First Amendment Permits Sectarian Legislative Prayer and Demands a "Practice Focused" Analysis, 48 SANTA CLARA L. REV. 569, 571-73, (2008) (arguing that Marsh does not require restriction on sectarian references, and looking instead to neutral selection procedures for, and broad community representation in, legislative prayer speakers). My own extensive analysis of these factually wide-ranging cases is beyond the scope of this Article; ultimately, I conclude that because legislative prayer is considered sui generis, conditions placed upon it are best explained by reference to Marsh, and that borrowing reasoning from Johanns or Finley further weakens the Establishment Clause.
356. Ironically, that was the argument put forth by Justice Scalia at oral argument. He asserted that just as a city might erect a statue of George Washington to convey the message that he is "worthy of respect" by the citizens, without endorsing everything Washington ever said, so too can a city display a Ten Commandments monument for the limited message that it is "worthy of respect." Transcript of Oral Argument, supra note 14, at 55-56.
357. See Jay A. Sekulow & Francis J. Manion, The Supreme Court and the Ten Commandments: Compounding the Establishment Clause Confusion, 14 WM. & MARY BILL RTS. J. 33, 35-41 (2005) (summarizing Ten Commandments cases over the decade preceding Van Orden).
358. See Richard W. Garnett, Religion, Division, and the First Amendment, 94 GEO. L.J. 1667, 1681-1708, 1722-23 (2006) (explaining history of politically divisive rationale for Establishment Clause decisions, though rejecting that argument as unsound).
359. See also Nelson Tebbe, Excluding Religion, 156 U. PA. L. REV. 1263, 1272-73 (2008) (arguing in support of government's ability to exclude religion from public programs in order to avoid emphasizing harmful divisions among citizens).
360. Cf. Colby, supra note 4, at 1098-99 (posing compelling hypotheticals of municipal displays of monuments that offend local families, for example, a Ten Commandments monument offending local Hindu families, and a university town's statue proclaiming "There is No God," offending local Catholic families).
361. See Summum v. Pleasant Grove City, 483 F.3d 1044, 1047 (10th Cir. 2007), cert. granted, 128 S. Ct. 1737 (2008) (No. 07-665).
362. Here, Pleasant Grove sought to limit its permanent displays to those relating to its history or donated by groups with long-standing ties. Id. The latter criterion can be defended on the grounds that community members will both understand the local culture and values and also be less likely to seek to offend. The Summums had no ties to Pleasant Grove, so this is not a case of a resident minority religious group suffering from government discrimination.
363. See supra notes 160-62.
364. See Sekulow & Manion, supra note 235, at 34 n.10 (compiling long list of cases challenging Ten Commandments displays during the years 1997-2005).
365. Whether this type of analysis remains viable in the newly constituted Supreme Court, of course, is questionable. See Smith, supra note 228, at 94-95 (positing that the new Court may well reject the endorsement test);
366. see also County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 677 (1989) (Kennedy, J., concurring in the judgment in part and dissenting in part) (objecting to "the very nature of the endorsement test, with its emphasis on the feelings of the objective observer").
367. Note that Justice Breyer's controlling concurrence in Van Orden used the endorsement test in fact, but not in name, instead terming the analysis "legal judgment." Van Orden v. Perry, 545 U.S. 677, 700 (2005) (Breyer, J., concurring in the judgment).
368. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
369. Romer v. Evans, 517 U.S. 620, 624 (1996).
370. Steven Goldberg, Beyond Coercion: Justice Kennedy's Aversion to Animus, 8 U. PA. J. CONST. L. 801, 806-07 (2006);
371. see also Christopher L. Eisgruber & Lawrence G. Sager, Chips Off Our Block? A Reply to Berg, Greenawalt, Lupu and Tuttle, 85 TEX. L. REV. 1273, 1282 (2007) (reading Romer and Lawrence as "supporting] the conclusion that the gratuitous disparagement of homosexuals is unconstitutional").
372. Justice Stevens posed a similar hypothetical at oral argument, after hearing the Deputy Solicitor General's argument that government speech entitles the government to display the Vietnam Veterans Memorial without risking a requirement to display a Viet Cong memorial, Transcript of Oral Argument, supra note 14, at 22, he asked, "supposing the Government in the Vietnam Memorial decided not to put up the names of any homosexual soldiers.
373. Would that be permissible?" Id. at 23.
374. Counsel responded "yes," then qualified: "as a matter of the Free Speech Clause, there are no limits. . . . 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." Id. at 25.
375. James Forman, Jr., Driving Dixie Down: Removing the Confederate Flag from Southern State Capitols, 101 YALE L.J. 505, 505-06 (1991) (making the case that racist government speech violates the First and Fourteenth Amendments and arguing that NAACP v. Hunt, 891 F.2d 1555 (11th Cir. 1990), which rejected a claim that display of the Confederate flag on Alabama's state capital was unconstitutional, was wrong). See also Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1, 37 (2000) (proposing a ban on racist speech as one clear limit on government speech).
376. E.g., John M. Coski, The Confederate Battle Flag in Historical Perspective, in CONFEDERATE SYMBOLS IN THE CONTEMPORARY SOUTH, supra note 115, at 118 ("Even if historical analysis and argument conclude - as this essay has - that the flag's white supremacist overtones are inherent and continuing . . . [t]he nonracist meanings that people attach to the flag [honoring Confederate soldiers and symbolizing Southern heritage] are real and deserve respect. [At the same time,] it is naïve and logically indefensible [for them to not appreciate that others see it as a racist symbol.]").
377. Note that this Part does not discuss all potential limits for the new doctrine of government speech that have been proposed by scholars; rather, it only discusses several that have particular import for the monument context.
378. Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 574 (Souter, J., dissenting).
379. See Matthew 25:32-33 (King James) ("And before him shall be gathered all nations, and he shall separate them one from another, as a shepherd divides his sheep from the goats.").