Re: Monuments

[Marty Lederman]

Marci is correct, insofar as the 10th Circuit's Summum decision is concerned, because that decision appears to hold that a city may not be (viewpoint-) selective in choosing which privately donated monuments to erect on public grounds.  But my point was that the Summum holding cannot possibly be correct.  The fact that the monuments are privately donated, or privately funded, does not change the fact that they are monuments belonging to the city, and the fact that they are forms of government _expression_ once the city erects them on public property -- especially where, as in the Summum case (and presumably in Caspar, as well), the city insists that the _expression_ is that of the government.  Surely, for instance, just because the Hirschhorn Museum here in DC has placed some privately donated Henry Moore sculptures in its sculpture garden, it is not required to give equal pride of place to sculptures of mine that I "donate" to the museum.  (A boy can dream, right?)  And the Hirshhorn may even decline to display privately donated sculptures because of the "viewpoints" they convey.  Forum analysis is simply inapposite, not only because it is government _expression_, but also because the monuments/sculptures (in this case, Caspar's Ten Commandments monument) has not been erected in order "to encourage a diversity of views from private speakers."  ALA, 123 S. Ct. at 2305. ----- Original Message ----- From: Marci Hamilton To: [EMAIL PROTECTED] Sent: Monday, October 13, 2003 8:49 PM Subject: Re: Monuments In a message dated 10/13/2003 4:36:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: The state must be free to reject monuments or, indeed, to tear down those already erected because the space now has higher and better uses. sandy This is not the Casper case, where both "monuments" were given by private entities, rather than constructed by the government.  While I agree with Sandy that publicly funded monuments are free to take a position on behalf of the govt, I fail to see how the govt can choose between privately donated statues...like these ones.  Lynch and Rosenberger and the public forum cases don't give the city much latitude here.  Marci