“We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court....Here's the whole text of the case, which I'm eager to read, but I have a class in a few minutes, so what I have to add will have to come later. There are 4 concurring opinions, which is interesting: Stevens, Scalia, Souter, and Breyer.
The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable....
The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.
“The Free Speech Clause restricts government regulation of private speech... It does not regulate government speech.”
ADDED: From my post-oral argument discussion of the case:
I think it's pretty obvious that the city will win as the Justices (like Scalia) who support free speech for the government will have the support of the Justices (like Breyer) who look at real-world consequences and think practical thoughts.It's this aspect of the case that makes me want to comb through the various opinions. But first, it's time to go to class and talk about McCulloch v. Maryland one more time (something I will never get tired of doing).
But there still should be some hand-wringing over the one hypothetical that really did freak out everyone -- well, not Scalia, but almost everyone: What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it....
So will the city win with a clearly stated rule, will the city win with a "legal judgment" based on the whole context, or will the city win based on a clearly stated rule that has an escape clause comprising Justice Stevens's Vietnam memorial hypothetical?