Leaving aside the specifics of the Summum litigation, I think there are some interesting issues raised by this case. When the government accepts permanent structures from private groups to be placed on public property, can these decisions ever be evaluated under forum analysis? Would the government's decisions ever create a designated limited public forum? If not, would it ever be proper to characterize these decisions and the display of the structures as a nonpublic forum subject to the prohibition against viewpoint discrimination. If the answer to these questions is at least "yes, in some circumstances," then we have to figure out how we distinguish those situations in which forum analysis is appropriate from those in which it is not.
Certainly, the question of whether or not you can ever have a forum of permanent displays is an open one for the lower federal courts. There are several cases challenging content and viewpoint based restrictions on the donation of tiles and bricks for the halls and walkways of public schools. The tiles and bricks are clearly intended to be permanent, not temporary. There is no clear consensus among the courts that have adjudicated these cases as to the proper analysis to be applied. The Summum case may be much easier to resolve because there were so few displays accepted by the government for the area at issue - the alleged forum. But that still leaves open the question of whether the government's acceptance of a sufficiently large number of private permanent displays can ever implicate free speech concerns. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher Lund Sent: Monday, March 31, 2008 1:40 PM To: religionlaw@lists.ucla.edu Subject: Cert Grant in Summum The Supreme Court today granted cert in an unusual Ten Commandments case, Summum v. Pleasant Grove City. The case was brought by a religious organization that wanted to put up its own religious monument in a city park, given that there was already a Ten Commandments display there. The Tenth Circuit found for the plaintiffs, agreeing with them that the park was a traditional public forum from which the plaintiffs could only be excluded upon the showing of a compelling interest. The panel's decision seems pretty dubious - I imagine the Supreme Court will reverse, with a logic along the lines of Judge McConnell's dissent from denial of rehearing en banc. Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax)
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