A false narrative is being advanced in Arkansas and elsewhere that if a government body displays a privately donated Ten Commandments monument for historical reasons, it is legally required to accept and display any and all other monuments offered by a private individual or group, even those honoring Satan.
The Satanic Temple is expected to unveil its statue honoring Satan in the days ahead and says it plans to attempt to force state officials in Arkansas to display the 8 ½ -foot bronze figurine outside the Arkansas Statehouse – where lawmakers this year approved a Ten Commandments display on public land.
The Satanic Temple would like you to believe that Arkansas is legally required to accept and display this statue. That is simply not the case. In fact, the Supreme Court of the United States unanimously rejected this very argument.
In 2009, the Court ruled 9-to-0 in Pleasant Grove City v. Summum, a Utah case I had the privilege to argue, that when the government owns and displays a statue, monument, or memorial, it is engaging in government speech which does not trigger any right of a private party to force the government to display any other monument.
In Pleasant Grove City, one of the city’s public parks has multiple permanent displays owned by the city, including a Ten Commandments monument and several other items that were privately donated. The Ten Commandments have influenced Utah law and history, and as one federal judge explained, the city accepted that monument for reasons of history, not religion. All of the items on display, and/or their donors, have historical relevance to the community.
A religious organization called Summum, which had no historical relevance or ties to the city, demanded that the city accept and permanently display its religious monument. The city said no because the monument did not meet the city’s criteria (historical relevance of the item and/or donor). Summum sued and the case made its way to the Supreme Court.
In unanimously upholding the city’s rejection of the Summum monument, the Court explained that the government has the authority to speak its own message, and the government’s selection and display of monuments is a form of government speech. The Utah Supreme Court unanimously reached the same conclusion interpreting the Utah Constitution earlier this year.
These holdings make perfect sense. If the law were otherwise, public land would become dumping grounds for monuments.
For example, the Statue of Liberty was a gift to the United States from the French people. If Summum had prevailed, however, supporters of dictatorial regimes could have demanded that a counter-monument of similar size be displayed next to the Statue of Liberty. Similarly, government-owned monuments remembering the victims of the Holocaust, or the life of the Rev. Martin Luther King, Jr., could be surrounded by counter-monuments with anti-Semitic or racist messages. Fortunately, however, the law does not require such ridiculous results.
These principles are not limited to public displays; when the government encouraged Americans to buy war bonds during World War II, or to “Just Say No” to illegal drugs, it was not required to voice opposing messages. People who disagree with a government message are free to express their own counter-messages without co-opting the government itself to do so.
The situation is quite different when the government is not speaking, but rather is only providing a location for private individuals and groups to speak. For example, if public property is made temporarily available for individuals and groups to display items of their choosing, such as seasonal displays during the holidays, freedom of speech principles are in play. These principles are inapplicable, however, when it comes to the government’s own display of statues, monuments, and memorials on its property.
The bottom line: both law and common sense dictate that no private individual or group has a right to demand that, when a government body displays a monument or statue on its property, as governments have done since time immemorial, it must accept and display any monument of the private party’s choosing.
In the case to force Arkansas to display a Satanic statue, the devil really is in the details here. The facts, along with Supreme Court precedent, provide Arkansas officials with all they need to reject such a request – without creating a constitutional crisis.
Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. He also serves as a member of President Trump’s legal team. Follow him on Twitter @JaySekulow.