Amicus Curiae Brief — Duchesne City, Utah v. Summum (No. 07-690)

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(3) FILED

No. 07-690 N=C 2 § 2007

In The SUPHEME COURT US

Supreme Court of the United States

DUCHESNE CITY, CLINTON PARK, Mayor,

YORDYS NELSON, NANCY WAGER, PAUL

TANNER, DARWIN McKEE, and JEANNIE

MECHAM, City Council Members,

Petitioners,

SUMMUM, a corporate sole and church,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

BRIEF OF THE COMMONWEALTH OF

VIRGINIA, EIGHT OTHER STATES,

AND PUERTO RICO AS AMICI CURIAE

IN SUPPORT OF THE PETITIONERS

ROBERT F. MCDONNELL WILLIAM C. MIMS

Attorney General of Virginia Chief Deputy

WILLIAM E. THRO Attorney General

State Solicitor General OFFICE OF THE

Counsel of Record ATTORNEY GENERAL

wthro@oag.state.va.us 900 East Main Street

STEPHEN R. McCuttoucn —- Richmond, Virginia 23219

Deputy State Solicitor General (804) 786-2436

smccullough@oag.state.va.us (804) 786-1991 (facsimile)

Counsel for the

Commonwealth of Virginia

{Additional Counsel Listed On Inside Of Cover]

December 26, 2007

COCKLE LAW BRIEF PRIN TENG CO. (800) 225-6964

OR CALL COLLECT (402) 342-253 1

TROY KING

Alabama Attorney General

JOHN W. SUTHERS

Colorado Attorney General

JON C. BRUNING

Nebraska Attorney General

KELLY A. AYOTTE

New Hampshire Attorney General

HENRY MCMASTER

South Carolina Attorney General

LAWRENCE E. LONG

South Dakota Attorney General

GREG ABBOTT

Attorney General of Texas

MARK L. SHURTLEFF

Utah Attorney General

ROBERTO J. SANCHEZ-RAMOS

Secretary of Justice

Commonwealth of Puerto Rico

QUESTIONS PRESENTED

The States’ Amici Brief in support of the Petition

addresses the following questions:

When government accepts a donation of property

and then uses the property for expressive purposes,

is the expression considered government speech?

If government accepts a donation of property and

then installs that property in a public park, does

the government create a public forum for the

installation of structures?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

INTEREST OF AMICI

I. THERE IS ACONFLICT AMONG THE

CIRCUITS

A. The Circuits Are Divided on

Whether a Donation of Property

Results in Government Speech or

Private Speech by the Donor

. The Circuits Are Divided on Whether

Public Parks Are a Public Forum for

the Erection of Monuments.................

THE DECISION BELOW

UNDERMINES THE STATES’

ABILITY TO ENGAGE IN

GOVERNMENT SPEECH

THE DECISION BELOW HAS

SIGNIFICANT IMPLICATIONS

BEYOND PUBLIC PARKS

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TABLE OF AUTHORITIES

CASES

ACLU Nebraska Found. v. City of Plattsmouth,

419 F.3d 772 (8" Cir. 2005)

ACLU v. Schundler,

104 F.3d 1435 (3” Cir. 1997)

Board of Educ., Island Trees Union

Free Sch. Dist. No. 26 v. Pico,

457 U.S. 853 (1982)

Board of Regents of Univ. of

Wisconsin Sys. v. Southworth,

529 U.S. 217 (2000)

Downs v. Los Angeles Unified Sch. Dist.,

228 F.3d 1003 (9" Cir. 2000)

Freedom from Religion Found. v.

City of Marshfield,

203 F.3d 487 (7" Cir. 2000)

Graff v. City of Chicago,

9 F.3d 1309 (7" Cir. 1993)

Hannegan v. Esquire, Inc.,

327 U.S. 146 (1946)

Johanns v. Livestock Mkig. Ass’n,

544 U.S. 550 (2005)

Kaplan v. City of Burlington,

891 F.2d 1024 (2™ Cir. 1989)

Lamb’s Chapel v. Center

Moriches Union Free Sch. Dist.,

508 U.S. 384 (1993)

TABLE OF AUTHORITIES — Continued

Lubavitch Chabad House, Inc. v.

City of Chicago,

917 F.2d 341 (7" Cir. 1990)

National Endowment for the Arts v. Finley,

524 U.S. 569 (1998)

PETA v. Gittens,

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Rosenberger v. Rector &

Visitors of Univ. of Virginia,

515 U.S. 819 (1995)

Rust v. Sullivan,

500 U.S. 173 (1991)

Serra v. United States Gen. Servs. Admin.,

O67 F.2d 1045 Cir. 1988).................................8, 8

Summum ov. Callaghan,

130 F.3d 906 (10" Cir. 1997)

Summum v. City of Ogden,

297 F.3d 995 (10" Cir. 2002)

Summum uv. Pleasant Grove City,

482 F.3d 1014 (10™ Cir. 2007),

petition for cert. filed

(U.S. Nov. 20, 2007) (No. 07-665)

Tucker v. City of Fairfield,

398 F.3d 457 (6 Cir. 2005)

United States Civil Serv. Comm’n v.

National Ass’n of Letter Carriers, AFL-CIO,

413 U.S. 548 (1973)

TABLE OF AUTHORITIES — Continued

Page

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Wooley v. Maynard,

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OTHER AUTHORITIES

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INTEREST OF AMICI’

The States’ interest is clear — preserving the

sovereign authority of the States and their political

subdivisions to engage in government speech. If it is

inevitable that government will “adopt and pursue

programs” that “are contrary to the profound beliefs

and sincere convictions of some of its citizens,” it

is equally “inevitable that funds raised by the

government will be spent for speech and other

expression to advocate and defend its own policies.”

Board of Regents of Univ. of Wisconsin Sys. v.

Southworth, 529 U.S. 217, 229 (2000). When the

government speaks, “different principles” control.

Rosenberger v. Rector & Visitors of Univ. of Virginia,

515 U.S. 819, 834 (1995). Government speech takes

many forms including defense of its own “values,”

Rust v. Sullivan, 500 U.S. 173, 194 (1991),

determinations of excellence, National Endowment

for the Arts v. Finley, 524 U.S. 569, 585-86 (1998), and

a public library’ “traditional role in identifying

suitable and worthwhile material,” United States v.

American Library Ass’n, Inc., 539 U.S. 194, 208

(2003). Although most government speech will involve

the expenditure of public funds, there are instances

when government speaks by accepting a donation

of personal, real, or intellectual property from private

interests and then using that property to perpetuate

the government’s message. The use of property for

‘ The parties were notified ten days prior to the due date of

this brief of the intention to file.

government expression is constitutionally

indistinguishable from the use of public funds for

government expression. If government can spend

money to purchase newspaper and_ radio

advertisements saying “immunize your child,”

government can accept a donation of a privately

financed billboard that reads “immunize your child.”

Moreover, having advocated the message of childhood

immunization, government can refuse the donation of

a billboard that says, “immunization is a government

conspiracy.”

The Tenth Circuit’s decision ignores these

fundamental principles of government speech. It

limits the ability of government — at all levels — to use

or decline donated property as a means of

government expression. Under the lower court’s

reasoning, if government accepts a donation of

property as a means of facilitating its own expression,

it must accept all similar donations — even though the

other donations convey a message that is tangential

or even contradictory to the message that government

wishes to convey. As Judge McConnell noted,

governments “must either remove the war memorials

or brace themselves for an influx of clutter.” Pet. App.

10f (McConnell, J., joined by Gorsuch, J., dissenting

from the denial of rehearing en banc.).

* Presumably, the same rationale would apply if the donor

sold the property to the government for less than fair market

value. Thus, the rule cannot be avoided by selling the property

for some nominal amount.

The Constitution does not compel such a result.

To hold that the Government unconstitutionally

discriminates on the basis of viewpoint when it

advances its own agenda “would render numerous

Government programs constitutionally suspect.”

Rust, 500 U.S. at 194. “Consequently, the

Government may advance or restrict its own speech

in a manner that would clearly be forbidden were it

regulating the speech of a private citizen.”” Serra v.

United States Gen. Servs. Admin., 847 F.2d 1045,

1048-49 (2 Cir. 1988). “If the authorities place a

statue of Ulysses 8. Grant in the park, the First

Amendment does not require them also to install a

statue of Robert E. Lee.” PETA v. Gittens, 414 F.3d

23, 29 (D.C. Cir. 2005).

REASONS FOR GRANTING THE PETITION

The Petition should be granted for three reasons.

First, there is a conflict among the Circuits. Second,

the decision below undermines the States’ ability to

engage in government speech. Third, the Tenth

Circuit’s decision has implications far beyond the

public parks.

* See also Wooley v. Maynard, 430 U.S. 705, 717 (1977)

‘State may express official view of state history, but may not

terce individuals to do so.); United States Civil Serv. Comm’n v.

National Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 567

(1973) (act forbidding federal employees from engaging in

political activity does not violate First Amendment).

I. THERE IS A CONFLICT AMONG THE

CIRCUITS.

The Tenth Circuit decision conflicts with the

decisions of other Circuits in two ways. First, the

Circuits are divided on whether a donation of

property results in government speech or private

speech by the donor. Second, the Circuits are divided

on whether public parks are a public forum for the

erection of monuments.

A. The Circuits Are Divided on Whether

a Donation of Property Results in

Government Speech or Private Speech

by the Donor.

The Circuits are divided on whether a donation of

property results in government speech or private

speech by the donor. In the Tenth Circuit, when

government accepts a donation of property, any

speech that subsequently results is speech by the

private donor, not speech by the government. Pet.

App. 7a-9a, 17a-19a.* Moreover, if multiple donors

wish to convey property, government has_ no

discretion to accept or reject particular pieces of

property.

* See also Summum v. Pleasant Grove City, 483 F.3d 1044,

1048 n.2 (10" Cir. 2007), petition for cert. filed (U.S. Nov. 20,

2007) (No. 07-665); Summum v. City of Ogden, 297 F.3d 995,

1003-06 (10 Cir. 2002); Summum v. Callaghan, 130 F.3d 906,

919 & n.19 (10" Cir. 1997).

In sharp contrast, other Circuits have concluded

that, when government accepts a donation of

property, any speech that subsequently results is

government speech. See ACLU Nebraska Found. v.

City of Plattsmouth, 419 F.3d 772, 774, 778 (8 Cir.

2005) (en banc) (implicitly assuming that a city’s

acceptance of a privately donated monument in public

park resulted in government speech). When property

is transferred from a private party to the government,

“the effect of formal transfer of legal title to property

[is] a transfer of imputed expression... .” Freedom

from Religion Found. v. City of Marshfield, 203 F.3d

487, 491 (7" Cir. 2000). If a work of art “is entirely

owned by the Government and is displayed on

Government property,” “the speaker is the

Government.” Serra, 847 U.S. at 1049. Similarly, a

religious display “owned and displayed by city

government on city government property” is

“sovernment speech.” ACLU v. Schundler, 104 F.3d

1435, 1444 (3% Cir. 1997). Furthermore, when

government chooses to accept some donations, but to

reject others, it is engaging in government speech.

PETA, 414 F.3d at 28-29. Thus, in the D.C. Circuit,

the government may choose which privately donated

sculptures to install in a public park. Id. at 29.

B. The Circuits Are Divided on Whether

Public Parks Are a Public Forum for

the Erection of Monuments.

The Circuits also are divided on whether public

parks are a public forum for the erection of

monuments. The Tenth Circuit found that, by

allowing the erection of a single monument in a

public park, the government creates a public forum

for the erection of monuments. Pet. App. 9a-1la.

Thus, unless the government bans “all permanent

displays,” Pet. App. 18a, it must allow private parties

to erect monuments whenever they wish.

Other Circuits have reached the opposite

conclusion. See Kaplan v. City of Burlington, 891 F.2d

1024, 1029 (2™ Cir. 1989) (Local government is not

required to display a privately funded menorah in a

public park.). “There is no private constitutional right

to erect a structure on public property.” Graff v. City

of Chicago, 9 F.3d 1309, 1314 (7" Cir. 1993) (en banc).

“If there were, our traditional public forums, such as

our public parks, would be cluttered with all manner

of structures.” Lubavitch Chabad House, Inc. v. City

of Chicago, 917 F.2d 341, 347 (7" Cir. 1990). “Courts

have generally refused to protect on First

Amendment grounds the placement of objects on

public property where the objects are permanent or

otherwise not easily moved.” Tucker v. City of

Fairfield, 398 F.3d 457, 462 (6" Cir. 2005).

Ii. THE DECISION BELOW UNDERMINES

THE STATES’ ABILITY TO ENGAGE IN

GOVERNMENT SPEECH.

Even if there were not a clear, deep, and mature

conflict among the Circuits, review by this Court

would still be warranted to correct the Tenth Circuit.

The decision below undermines the States’ ability to

engage in government speech.

There is a fundamental difference between

private speech that utilizes government resources

such as property or money and government speech

that advances the government agenda. Finley, 524

U.S. at 586. If government makes its property or

funds available for private expression, the First

Amendment prohibits viewpoint discrimination. See

Rosenberger, 515 U.S. at 837 (public funds for student

groups); Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist., 508 U.S. 384, 386 (1993) (use of a

publicly owned auditorium).° In contrast, the

expenditure of public funds for government speech

generally does not implicate the First Amendment.

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 559

(2005). “Simply because the government opens its

mouth to speak does not give every outside .. . group

a First Amendment right to play ventriloquist.”

° Cf. Hannegan v. Esquire, Inc., 327 U.S. 146, 148 n.1 (1946)

(Second class mailing privileges available to all newspapers and

other periodicals).

Downs v. Los Angeles Unified Sch. Dist., 228 F.3d

1003, 1013 (9" Cir. 2000).

The decision below blurs the fundamental

distinction between private speech using government

resources and government speech. First, under the

reasoning of the court of appeals, a// donations of

property to the government that resuit in expression

are considered private speech and, thus, implicate the

First Amendment. As a practical matter, a particular

of government speech — accepting a donation of

property and then using that property to convey the

government’s message — has been abolished. Although

government may still pursue other modes of

communication, the closure of one mode makes the

government expression more difficult.

Second, under the reasoning below, if donated

property is erected in a public park, that park is

transformed into a public forum where other private

parties may erect donated property with expressive

attributes. As a practical matter, this means that

government can no longer use its own parks to convey

its message. While government remains free to speak

in other places, the loss of the public park as a venue

for go. ernment speech makes communication more

difficult.

Furthermore, while government’ speech is

inhibited by the Tenth Circuit’s decision, there is no

reason to believe that private speech will be

expanded. As a practical matter, government will

respond to the decision by refusing to accept

donations of property. Moreover, faced with a choice of

allowing all monuments in public parks or allowing

none, many — if not most — governments will opt for

none. Thus, the long-term effect of the decision may

well be to inhibit private speech. Surely, the

Constitution does not require a result that inhibits

government speech while not promoting — and

possibly undermining — private speech.

Ill. THE DECISION BELOW HAS SIGNIFICANT

IMPLICATIONS BEYOND PUBLIC PARKS.

The implications of the lower court’s decision for

public parks are obvious. George Washington must

stand near Benedict Arnold. Union Generals must be

accompanied by their Confederate counterparts. A

Holocaust Memorial must be alongside a monument

to the Ottoman Empire’s Armenian Genocide or the

British atrocities during the Boer War, or, for that

matter, a monument to honor Adolf Hitler. The

applications to public parks alone are sufficient to

warrant this Court’s review.

Yet, nothing in the Tenth Circuit’s opinion limits

its rationale to public parks. Its logic extends to any

governmental decision that involves the acceptance of

property where some form of expression results. Most

obviously, the decision applies to government’s

decisions regarding the contents and décor of

government buildings. Since Virginia’s Pocahontas

State Office Building’ contains a privately funded

“Wall of Honor” commemorating those Virginians who

have died in the War on Terror, it must also include a

“Wall of Shame” protesting the War or celebrating the

supposed virtues of the Terrorists.’ Although South

Dakota’s Capitel Rotunda contains privately donated

sculptures of Wisdom, Vision, Courage, and Integrity,

the Tenth Circuit would mandate inclusion of other

sculptures honoring Stupidity, Cowardice, and

Dishonesty.*

Less obviously, the mandate extends to all

decisions where government accepts property and

some sort of expression results. Thus, if a public

museum accepts a donation of a painting, it must

accept all donations of paintings — even if it regards a

painting as inferior art, distasteful, or simply

inappropriate for the museum’s overall purpose.

Similarly, if a public university library accepts a

donation of a book, it must accept all donations of

books. Cf. Board of Educ., Island Trees Union Free

Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871-72 (1982)

(libraries have broad discretion in determining what

books to add to their collections). Conceivably,

acceptance of a private party donation of laboratory

* Virginia names its State Office Buildings after prominent

Virginians including Jefferson, Madison, and Monroe.

" For a description of the “Wall of Honor,” see http://www

vaag.com/PRESS_RELEASES/News<Archive/052407_Wall.html.

* For information and images of the sculptures, see http://

www.state.sd.us/state/capitol/capitol/tour/bronze. htm.

equipment, computers, or curricular materials means

that the government may never refuse a donation. In

time, government will be overwhelmed with mediocre

art, unwanted books, and useless equipment. The

only way for the government to avoid becoming a

“pack rat” is to refuse all donations of art and books.

CONCLUSION

For the reasons stated above, in the Petition

itself, and in the other amici briefs supporting the

Petitioners, the Petition for Certiorari should be

GRANTED.

Respectfully submitted,