March 2010 - Parks & Recreation - 63

Park products and services

In accepting privately funded or
donated monuments, the court noted
that governments have generally exercised " editorial control " through " prior
submission requirements, design input,
requested modifications, written criteria, and legislative approvals of specific
content proposals " :
[C]ities and other jurisdictions take some
care in accepting donated monuments.
Government decision-makers select the
monuments that portray what they view
as appropriate for the place in question,
taking into account such content-based
factors as aesthetics, history, and local
culture.

Applying these principles to the facts
of the case, the court found it was " clear
that the monuments in Pleasant Grove
City's Pioneer Park represent government speech. " Specifically, the court
found the city had decided which privately donated monuments to accept
and display in Pioneer Park.
Further, there was no indication that
" the city ever opened up the park for
the placement of whatever permanent
monuments might be offered by private
donors. " On the contrary, the court
found that " the city has effectively controlled the messages sent by the monuments in the park by exercising 'final
approval authority' over their selection:

the focus of Summum's concern, and the
city has now expressly set forth the criteria it will use in making future selections.

MarketPlace

the " general government practice " has
been " one of selective receptivity. "

As a result, the court held that " the
city's decision to accept certain privately
donated monuments while rejecting
Summum's is best viewed as a form of
government speech . . . not subject to
the Free Speech Clause. " The court,
therefore, reversed the decision of the
federal appeals court, which had held
that the city could not reject the Seven
Aphorisms monument unless it had a
compelling justification that could not
be served by more narrowly tailored
means.

James C. Kozlowski, J.D., Ph.D., is an
The city has selected those monuments
associate professor in the School of Recrethat it wants to display for the purpose of
ation, Health, and Tourism at George
As a result, the court found accepted
presenting the image of the city that it
Mason University in Manassas, Va., and
monuments constituted " government
wishes to project to all who frequent the
legal/legislative counsel to NRPA Public
speech " because such monuments " are
park, it has taken ownership of most of
Circle 41 on product information form on PAGE 119
Circle 42 on product information form on PAGE 119
Policy. Email: jkozlows@gmu.edu; Web
meant to convey and have the effect of
the monuments in the park, including the
site: http://mason.gmu.edu/~jkozlows.
conveying a government message. "
Ten Commandments monument that is
playground equipment

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site furnishings

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onOPAGE

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March 2010 - Parks & Recreation

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