Free speech in the public square

The First Amendment guarantees governments on these shores shall not prohibit individuals' right to free speech. But the amendment also dictates Congress shall make no law "regarding an establishment of religion."

"Establishment," in that context, has a specific meaning. It refers to the fact that the Church of England -- Episcopalian Protestantism, more or less -- was "established" by the government of Great Britain as that nation's official religion. Other faiths -- Catholics, Quakers -- might be extended various degrees of tolerance, at various times. Or not.

The founders of America wanted no such official picking and choosing.

Comes now the challenging case of the park in Pleasant Grove, Utah, a town of 31,000 souls, most of them Mormon.

A few years back, the city solicited and accepted 15 displays for its public park, including one that features the Ten Commandments.

In 2003, members of the Utah-based religious group known as Summum -- an offshoot of Gnostic Christianity founded in 1975 -- offered to donate a 16th monument, bearing their own seven aphorisms.

The city fathers of Pleasant Grove said, "No thanks."

This being America, Summum sued. The city was blocking the organization's right to free speech in a public forum because it disagreed with the content of the message, the group argued.

Lawyers for Pleasant Grove responded that monuments in a city park are not part of a First Amendment public forum equivalent to spoken words or leaflets. They argue that when a city decides to place a privately donated monument in a park, the display represents the city's own speech.

The objection makes practical sense. If monuments commemorating the beliefs of every fringe sect and cult had to be accepted, public parks nationwide could soon be cluttered junk yards of plaques and obelisks -- some of them pretty weird. "Accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny," writes attorney Jay Sekulow in his brief on behalf of Pleasant Grove.

But while the U.S. Supreme Court has quixotically allowed some Ten Commandments displays and barred others, the judges of the Denver-based 10th U.S. Circuit Court of Appeals long ago ruled that, in the six states under their jurisdiction, Ten Commandments displays are private speech, not government speech.

This ruling insulated municipalities from lawsuits under the establishment clause but opened them up to challenges (such as this one) under the free speech clause.

A panel of the 10th Circuit Court agreed with Summum, ordering the city to display the monument. Pleasant Grove appealed to the U.S. Supreme Court, where arguments were heard Wednesday.

The case is being closely watched by municipal officials, who could face a barrage of unwanted monuments on public lands.

The city of Casper, Wyo., for instance, is already fighting an anti-homosexual monument proposed by activist Fred Phelps. Lawyers for Mr. Phelps say the city must accept his monument because it already displays the Ten Commandments.

And what about courthouses with wall-carvings that display minimal quotations from Moses, Hammurabi or some other ancient lawgiver? Time to put the stone-carvers back to work, immortalizing the doctrines of the Rosicrucians, the Zoroastrians and the Scientologists?

We could even end up needing a monument to explain why there's no monument for the Nihilists.

On the other hand, "The most basic of First Amendment rules is that in a traditional public forum like a public park, a city may not discriminate among speakers based on the content of their speech," writes lawyer Pamela Harris, in her brief for Summum.

Yet it's hard to imagine the high court ruling that Pleasant Grove must display the new plaque or monument. For one thing -- where? Wouldn't there soon be follow-up lawsuits, complaining that the "bigger" religions get prime placement, while the monuments of less-favored denominations wind up over by the outhouse?

The most sensible, least intrusive solution would probably be to order up only the least specific, blandest and most inoffensive displays in the public parks -- just as municipal Christmas displays have now morphed into generic "holiday season" snowflake cavalcades, with loudspeakers blaring "Jingle Bells" and "Rudolph the Red-Nosed Reindeer," but never a hint of "Silent Night" or "Oh Come All Ye Faithful."

And that's very sad.