by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

In his opinion for the Supreme Court today in Pleasant Grove City v. Summum, Justice Alito quotes John Lennon’s lyrics from the song “Imagine”:

You may say I’m a dreamer
But I’m not the only one
I hope someday you’ll join us
And the world will live as one

Well, for today at least, Justice Alito was not the only dreamer (who knew?), as the Supreme Court joined together as one in a unanimous judgment that permanently-displayed monuments like the Ten Commandments monument in Pleasant Grove City’s Pioneer Park are government speech for the purposes of the First Amendment’s Free Speech Clause. Because the park monuments are government speech, not incidents of private speech, the City was permitted to determine the content of that speech and thus did not violate the Free Speech Clause in rejecting the proposed Seven Aphorisms monument that the members of the Summum religion wished to erect in the park.

Summum had argued that the park was a traditional public forum, that the monuments were private, not government speech, and hence that the Free Speech Clause prohibited the City from engaging in viewpoint discrimination in picking and choosing which monuments to display permanently in the park. Were the Court to agree, Justice Alito noted, then “New York City, having accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome, Alaska, during a diphtheria epidemic) may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration” (like my dog, Grimaldi, who once heroically barked at me to alert me that my hair dryer had caught fire). Or, Justice Alito noted, under the private speech theory, after accepting the Statue of Liberty, the U.S. could have been forced to erect a “Statue of Autocracy” in New York’s harbor.

In an opinion that was marked with whimsy, Justice Alito reached a result that all the Justices agreed with: Pleasant Grove City’s decision to accept certain privately donated monuments (such as the Ten Commandments monument) while rejecting Summum’s Seven Aphorisms monument is best viewed as a form of government speech and therefore not subject to the Free Speech Clause. Significantly, however, Justice Alito’s majority opinion was also quick to note that while government speech is not subject to the Free Speech Clause, “this does not mean that there are no restraints on government speech,” and specifically noted that “government speech must comport with the Establishment Clause,” among other restrictions on such speech.

And there, not surprisingly, is where the merry majority parts ways. In a series of concurring opinions that showcase classic traits of the individual Justices, most of the members of the Court (only Chief Justice Roberts and Justices Alito and Kennedy are unrepresented in the concurrences) expressed varying and sometimes conflicting views of the implications of the main opinion’s narrow ruling.

Justice Breyer, ever the pragmatist, argues for viewing the government speech doctrine as more a “rule of thumb” than a “rigid category.” Justices Scalia and Thomas, unwilling to follow John Lennon and “imagine there’s no heaven,” write separately to assure the City that they have no problem whatsoever with the erection of religious monuments in public parks. In classic Scalia style, his concurrence even labels Summum’s mention of potential Establishment Clause issues as “menacing,” and then goes on to proclaim that the City’s Ten Commandments monument does not violate that Clause, a matter not even considered by the courts below. Justice Stevens, on the other hand, finds the equality-protecting aspects of the Constitution a comfort rather than a menace and, joined by Justice Ginsburg, notes that “even if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution’s other proscriptions, including those supplied by the Establishment and Equal Protection Clauses. Together with the checks imposed by our democratic processes, these constitutional safeguards ensure that the effect of today’s decision will be limited.” Justice Souter, ever the independent, and possibly in no mood to channel John Lennon, did not join the Court’s opinion but followed up with a concurrence in the judgment combining Justice Breyer’s pragmatic concerns and Justice Stevens’ constitutional principles into a suggestion that the Court reject a per se rule for determining when speech is governmental and instead use a “reasonable observer” test of the sort the Court already uses in the Establishment Clause context to spot impermissible government endorsement of religion.

The complexities of the Pleasant Grove case are many, the consequences of the decision significant, and the legal issues fascinating. While those factors alone warrant a review of today’s opinion, it is also just a straight-up good read. Just don’t be surprised if you end up humming “Imagine” for the rest of the day, and thinking, with reverence, of Balto the heroic dog.