Today the Supreme Court granted certiorari in an amusing but potentially important case from the 10th Circuit, Summum v. Pleasant Grove City. (10th Circuit panel decision here, preceded by dissent from denial of en banc rehearing and response to that denial). A city park in Pleasant Grove City, Utah, contains a 10 Commandment monument and some other displays and monuments that were donated by private organizations. Summum is a religious organization headquartered in Salt Lake City. It sought to place a monument containing the "Seven Aphorisms"---rival principles that Summumists (Summumians? Summumistas?) believe were given to Moses by God and then destroyed before the 10 Commandments were given as a second-best substitute. They're explained here. (You have to admire a religion that has as a tenet "Nothing rests; everything moves; everything vibrates." Heraclitus meets string theory!)
The city turned Summum down; Summum sued and eventually won in the 10th Circuit, which held that the park is a traditional public forum, and thus the city had violated the requirement of content-neutrality in accepting the Commandments but not the Aphorisms. The Supreme Court granted cert. For reasons that are not entirely clear to me, conservatives are supporting the city while liberals are supporting Summum in this case.
The argument in defense of the city is straightforward enough: There is a difference between private speech in a public forum and government speech (even in a public forum); the government's decision to accept a privately-funded and/or privately-erected monument can sometimes amount to the government making the message its own; thus, government's acceptance of the Statue of Liberty (a gift from France) would not have obligated it to accept, had it been offered by Nazi Germany, a Statue of Bigotry. (Credit to Lou Reed for that term).
That seems clearly right, but at the other end, one worries about the stopping point of this argument. Government should not be permitted to evade its obligations as the proprietor of a public forum for speech by designating messages of which it approves as "government speech," so that it can disguise censorship as non-endorsement. The real problem exposed in the Summum case is that we don't have a good method for sorting out government speech and private speech in the many contexts in which they are mixed. (For one promising effort, click here.)
Posted by Mike Dorf