• 18 March 2009

The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums

Paul E. McGreal - Southern Illinois University School of Law

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Imagine that you are mayor of a small town that has a picturesque public park, where your residents come to escape the hustle and bustle of everyday life. To make the space inviting, you have built a gazebo, a picnic area, and a playground.  You have also allowed a local veterans group to erect a permanent monument honoring those from the town who died in war.  Then, a local religious group asks permission to place a permanent monument in the park, which would display the central tenets of their faith.  You deny this request and explain that the only permanent structures allowed are those that serve the park’s recreational purpose.  The religious group points out, however, that you have already allowed placement of a veterans monument.

You respond that a war memorial is a more appropriate message for a public park than a religious monument.  The religious group catches your slip here.  They explain that the park is a traditional public forum, and that the First Amendment forbids you from excluding their speech (the monument) from that forum (the park) based on its content (a religious monument rather than a war memorial).  Incredulous, you object that this First Amendment rule applies only to temporary speech, such as a rally or movable display.  After all, if the city had to accept every monument offered by a private group, the park would soon look like a graveyard peppered with headstones.  The religious group persists.  Are they right?

Last November, the Supreme Court heard argument on this question in City of Pleasant Grove v. Summum.1 The precise issue was whether placement of a permanent monument is part of the public’s right to use a traditional public forum.  This question falls in a gap in current public forum doctrine, and the lower courts have reached conflicting results.  While the Tenth Circuit held in City of Pleasant Grove that permanent monuments are within the public’s right to use a traditional public forum, other courts have held to the contrary.2 Both of the lower court approaches ultimately prove unsatisfactory because they lack a principled basis to distinguish temporary speech from permanent monuments.  This is not surprising given that the Supreme Court’s existing public forum doctrine provides no basis for doing so.

This Essay looks outside the current public forum framework to propose a new approach built on an analogy to the real property law of easements.  Courts should treat the public’s right to use a traditional public forum as if it were a constitutional easement over government property. This Essay asserts that a permanent monument would unreasonably interfere with rights of the government and the public by indefinitely excluding both the land owner (i.e., the government) and the other easement holders (i.e., the public) from use of the occupied land.  Thus, the public does not have a right to place a permanent monument in a traditional public forum.

This Essay has four Parts.  Part I outlines the Supreme Court’s current public forum doctrine.  Part II critiques the prevailing lower court approaches to permanent monuments in traditional public forums, and finds them wanting.  Part III builds a new testthe constitutional easement approach—drawing an analogy to the real property law of easements.  Part IV then explains why the constitutional easement approach best balances the competing interests of the government and the public in a traditional public forum.

Current Public Forum Doctrine

The Supreme Court’s First Amendment free speech analysis recognizes three types of government property: traditional public forums, designated public forums, and nonpublic forums.  Traditional public forums are “places which by long tradition or by government fiat have been devoted to assembly and debate.”3 Such forums include public streets and parks,4 but not locations such as airports and prisons,5 that lack such a tradition.  The government may not close a traditional public forum to speech.6 If the government limits speech based on its content, then it must show that such action is narrowly tailored to a compelling interest.7  If the restriction is content-neutral (e.g., limits on times, places, and manner of speech activities), the government action must be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”8

Government property that is not a traditional public forum is, by default, a nonpublic forum.  The government may, however, convert a nonpublic forum into a designated public forum by permitting public use for designated purposes.  For example, a public high school building is not a traditional public forum, but a school district could create one by opening the school’s gymnasium to the public on evenings and weekends.9  The government must intentionally open the property “for expressive use by the general public or by a particular class of speakers.”10  Allowing only selective access to the property does not create a designated public forum.11

Prevailing Approaches to Placement of Public Monuments

Because City of Pleasant Grove v. Summum is before the Supreme Court this Term, it is worth using that case to illustrate the lower court approaches to the permanent monument issue.  In 1971, the city  accepted a Ten Commandments monument donated by the local chapter of the Fraternal Order of Eagles.12  Twenty-two years later, members of the Summum religion requested that the city place a monument displaying the Seven Aphorisms of Summum in that same park.13  The city rejected the proposed Summum monument because its content was inconsistent with the park’s current use.14 Summum brought suit, and the district court denied their First Amendment claim.15

All parties and all courts to address the issue have agreed that the city park, as a whole, is a traditional public forum.16  The question, then, is whether placement of a permanent monument falls within the public’s right to use a traditional public forum.  On appeal, a panel of the Tenth Circuit held that the public does have such a right, and the full court denied Summum’s motion for rehearing en banc.  The en banc denial generated three opinions that succinctly state different approaches to the permanent monument issue: an opinion by Judge Tacha, author of the panel opinion; and two separate opinions by Judges McConnell and Lucero, who dissented from the Tenth Circuit’s denial of rehearing en banc.

A.     Permanent Monuments Allowed

Judge Tacha broadly defined the public’s rights in a traditional public forum, stating that any distinction between permanent and temporary monuments “lacks the support of both precedent and logic.”17 The mere fact that a public park is a traditional public forum triggers the proper First Amendment test.  Because the city concededly refused the Seven Aphorisms monument based on its content, strict scrutiny applied.  The city lost because it had not demonstrated that its asserted “interest in promoting its history” was compelling.18

There are three problems with Judge Tacha’s approach.  First, despite her claim to the contrary, logic does support a distinction between transitory and permanent speech in a traditional public forum.  A permanent display forever reduces the space available to both the city and the remainder of the public to make use of the traditional public forum.

Second, Judge Tacha’s approach forces the government into an all or nothing position.  She explains that while the public may not have a right to erect a permanent display in a park bereft of monuments, the right arises as soon as the government “permit[s] the permanent display of a private message.”19  If the government wants to deny permanent monuments based on content, its only practical option is to close its traditional public forums to permanent monuments.

Third, Judge Tacha’s approach would give the public a right to place permanent monuments in an otherwise empty traditional public forum. Under current First Amendment doctrine, the government must keep a traditional public forum open to speech activities.20  If permanent displays are to be treated the same as transitory activities, then, the simple fact that a park is a traditional public forum would trigger the public’s right to place permanent monuments there.21

B.     Permanent Monuments Are Government Speech

Judge McConnell would hold that a permanent monument becomes government speech the moment that the government allows the private display onto public property.22 Thus, because the First Amendment free speech guarantee does not limit government speech,23 the decision whether to place the monument is no longer subject to traditional public forum analysis.24

There are two problems with Judge McConnell’s approach.  First, simply accepting a permanent monument does not necessarily endorse the monument’s message.  The point of placing a permanent monument (e.g., a work of art) could be to stir debate on an issue, in which case the government remains studiously agnostic towards the monument’s message. Second, because Judge McConnell’s logic does not distinguish permanent and transitory speech activities, his approach is in tension with the entire concept of a traditional public forum.  Under Judge McConnell’s approach, all speech activity in a public park would be government, not private, speech, which contradicts the very idea of a traditional public park as a place where private speakers assemble and debate.

C.     Changing the Forum

Judge Lucero rewrote public forum analysis by changing how courts define the forum at issue.  The prevailing approach is to define the forum as the location in question—public park, sidewalk, etc.—and then ask whether that place is a traditional public forum.  Instead of asking whether the city park was a traditional public forum (which it clearly was), Judge Lucero asked whether the requested use—”permanent monuments in the city parks”—was such a forum,25 and concluded that the United States does not have a “long tradition” of allowing private parties to place monuments in public parks.

There are three problems with defining a proposed traditional public forum with reference to the requested use as well as the location.  First, the Supreme Court has never taken this approach.26  Neither Supreme Court case on which Judge Lucero relied addresses a traditional public forum, such as a park or street.27

Second, almost every use of a traditional public forum could be defined at such a specific level that no “long tradition” of similar use exists. For example, the government could define a forum for a political rally as “a rally in a public park that makes use of an LCD display and sound amplification equipment.”  Judge Lucero provides no rule or principle that prevents this semantic dodge.

Third, and more fundamentally, Judge Lucero’s approach conflates the categories of traditional and designated public forums.  Recall that a designated public forum is an otherwise nonpublic forum that the government has opened to specified public uses, thus, by definition, incorporating the speaker’s use of the property.28 Conversely, the traditional public forum is open generally to speech activities, and so the specific use does not define the forum.  By defining the relevant forum with reference to the requested use, Judge Lucero ignores the key distinction between traditional and designated public forums.

The Constitutional Easement Approach

Instead of further tinkering with current law, this Essay proposes a new test that looks outside the prevailing framework, drawing on an analogy to the real property law of easements. An easement confers three main rights and obligations: first, the holder of the easement has a right to use property owned by another; second, the owner of the servient land must not unreasonably interfere with the easement holder’s use; and third, the easement holder must not unreasonably interfere with use by the servient owner.29  In a traditional public forum, members of the public are the easement holders, and the government is the servient owner.  The public, then, has the right to enter and use the traditional public forum, the government must not unreasonably interfere with that use, and the public must not unreasonably interfere with the government’s continued ownership.

The public’s constitutional easement is nonexclusive, meaning that it is held by multiple parties (i.e., members of the public) simultaneously.30  Holders of such easements “must exercise their rights so that they do not unreasonably interfere with each other.”31 Courts have held that permanent structures can unreasonably interfere with a nonexclusive easement.32 The analogy to the permanent monument context is straightforward.  Members of the public simultaneously hold a constitutional easement to use a traditional public forum for assembly and debate, extending to all portions of the forum that are not reasonably used by the government. A permanent monument would exclude others from making use of a portion of the constitutional easement, thus “unreasonably interfer[ing]” with use of the park by other members of the public.

Placement of a permanent monument, then, is not part of the public’s constitutional easement over a traditional public forum.  Further, “permanent monuments in the public park” would not be a designated public forum because the government gives private monuments selective—not general—access to the park.33  This would leave the right to place a monument in the category of the public’s right to use a nonpublic forum, wherein speech regulations must be viewpoint neutral and reasonable.  Limits on placement of public monuments will surely be reasonable, in that they “preserve the property under its control for the use to which it is lawfully dedicated.”34

The second requirement—that the regulation be viewpoint neutral—places greater limits on the government.  Viewpoint neutrality is violated when the government “denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”35 A local government could plausibly claim that politically charged or inflammatory permanent monuments would make the park less inviting for its intended use by the entire community, thus working an indefinite exclusion.  The government’s purpose, then, would be to maximize use of the public park, and not to suppress the speaker’s viewpoint.  The outcome of the Summum case would depend on the government’s reason for excluding the monument, which the Tenth Circuit did not decide.36

Why Adopt the Constitutional Easement Approach?

The constitutional easement approach has rhetorical, functional, and doctrinal support in the Supreme Court’s public forum decisions.  Rhetorically, the Court already speaks the language of easments in this context, consistently describing traditional public forums as subject to a right of “use of the public.”  Functionally, the traditional public forum balances the competing rights of a land owner (the government) whose real property (the traditional public forum) is burdened by the right of third parties (the public) to use the property.  This is the same balance sought by the law of easements.  And doctrinally, the constitutional easement approach makes sense because the Court has previously adapted its public forum doctrine to specific government functions.  For example, when the government acts as a public broadcaster37 or a patron of the arts,38 the Court has tailored its analysis to those roles. Similarly, the constitutional easement approach tailors First Amendment doctrine to the government’s rights and obligations as the landowner of a traditional public forum.


Lower courts have bent and stretched the existing public forum rules in their attempt to solve the puzzle of permanent monuments, but without success.  By thinking of the public’s right to use a traditional public forum as a constitutional easement, courts can now solve the puzzle: a permanent monument would be an exclusive use of the forum that unreasonably interferes with the government’s ownership and the public’s right to use.  Thus, such monuments are not within the public’s right to use public parks, streets, and other traditional public forums.dingbat



Copyright © 2009 Northwestern University Law Review.

Paul E. McGreal is Professor of Law, Southern Illinois University School of Law.

Thanks to Peter Alexander, Cheryl Anderson, Keith Beyler, Cindy Buys, Brannon Denning, William Drennan, Lenny Gross, Sue Liemer, Hokulei Lindsey, Alice Noble-Allgire, Rocky Rhodes, and Mark Schultz for comments on prior drafts. I also received helpful feedback at a Southern Illinois University School of Law Faculty Scholarship Workshop. All errors that remain are mine.

This Editorial is based on the following Essay: Paul E. McGreal, The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums, 103 NW. U. L. REV. COLLOQUY 185 (2008).
Click Here for the Full Essay

  1. 483 F.3d 1044 (10th Cir. 2007), cert. granted, 128 S. Ct. 1737 (2008).
  2. See, e.g., Graff v. City of Chicago, 9 F.3d 1309, 1314 (7th Cir. 1993); Kaplan v. City of Burlington, 891 F.2d 1024, 1029 (2d Cir. 1989); Tucker v. City of Fairfield, 398 F.3d 457, 462-63 (6th Cir. 2005); see also People for Ethical Treatment of Animals v. Gittens, 414 F.3d 23, 28-29 (D.C. Cir. 2005).
  3. Perry, 460 U.S. at 45.
  4. Id.
  5. Int’l Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672 (1992) (airport); Adderley v. Florida, 385 U.S. 39 (1966) (prison).
  6. Perry, 460 U.S. at 45.
  7. Id.
  8. Id.
  9. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001).
  10. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 678 (1998) (emphasis added).
  11. Id. at 679.
  12. City of Pleasant Grove v. Summum, 483 F.3d 1044, 1047 (10th Cir. 2007), cert. granted, 128 S. Ct. 1737 (2008).
  13. See The Teachings of Summum are the Teachings of Gnostic Christinaty, available at http://www.summum.us/philosophy/gnosticism.shtml (last visited Aug. 15, 2008).
  14. See Summum, 483 F.3d at 1047.
  15. Id. at 1048.
  16. See, e.g., Summum v. Pleasant City Grove, 499 F.3d 1170, 1172-73 (10th Cir. 2007) (Lucero, J., dissenting from denial of rehearing en banc); id. at 1175 (McConnell, J., dissenting from denial of rehearing en banc); id. at 1178-79 (Tacha, J., response to dissent from denial of rehearing en banc).
  17. Id. at 1178 (Tacha, J., response to dissent from denial of rehearing en banc).
  18. Summum, 483 F.3d at 1053.
  19. Summum, 499 F.3d at 1179 n.1 (denial of rehearing en banc).
  20. See, e.g., Perry, 460 U.S. at 45.
  21. In dicta, four Justices have stated that the public does not have such a right. See Capital Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 783 (1995) (Souter, J., concurring in part and concurring in the judgment) (joined by O’Connor and Breyer, JJ.); id. at 802-03 (Stevens, J., dissenting). Four other Justices stated that such a ban may be justified as a time, place, and manner restriction. Id. at 761 (Scalia, J., announcing the judgment of the Court) (joined by Rehnquist, CJ. and Thomas and Kennedy, JJ.). In other contexts, however, the Court has held that a complete ban on general mode of speech, such as yard signs and handbilling, violates the First Amendment. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994); Schneider v. State, 308 U.S. 147, 162-163 (1939); Martin v. Struthers, 319 U.S. 141, 145-47 (1943).
  22. Id. at 1175.
  23. See Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005).
  24. Government speech that endorses religion may still run afoul of the Establishment Clause of the First Amendment.
  25. Summum v. Pleasant City Grove, 499 F.3d 1170, 1172 (10th Cir. 2007) (emphasis added) (denial of rehearing en banc).
  26. Id. at 1178-79 & n.1 (Tacha, J., response to dissent from denial of rehearing en banc).
  27. See Summum, 499 F.3d at 1172-73 (citing Perry, 460 U.S. at 49 (teacher mailboxes were a nonpublic forum); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 801 (1985)). Further, the Court’s decision in International Society for Krishna Consciousness v. Lee (ISKCON) implicitly rejects such an approach. 505 U.S. 672 (1992).
  28. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 678 (1998) (emphasis added).
  29. See RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES §§ 1.2, 4.9. 4.10 (2000).
  31. Id. § 4.12 (2000) (emphasis added).
  32. See, e.g., Goss v. Johnson, 243 N.W.2d 590 (Iowa 1976).
  33. See supra notes 16-17 and accompanying text.
  34. U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 130 (1981) (quoting Greer v. Spock, 424 U.S. 828, 836 (1976)).
  35. Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 805 (1985) (emphasis added).
  36. Id. at 1055 n.9.
  37. See Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 672-75 (1998) (permitting the government to make decisions about art funding based on content).
  38. See United States v. American Library Ass’n, Inc., 539 U.S. 194, 205 (2003) (plurality opinion); Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 585 (1998) (permitting the government’s exercise of editorial judgment as a public broadcaster).

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