Late last month, in an unpublished opinion, the Michigan Court of Appeals determined that a monument commemorating those who served and died in the Vietnam War, located on land owned by the City of Grand Haven, was government speech and not subject to First Amendment limitations. The monument, placed on a sand dune along the Grand River, contains a lifting mechanism that allows the monument to display a cross or, when certain attachments are included on the monument, an anchor. When members of the community requested that the monument be lifted to display the cross, the city would raise the lifting mechanism.
In 2015, the city passed a resolution allowing the monument to display only the anchor, not the cross. Members of a local church challenged the resolution as violating the free speech and equal protection provisions of the Michigan Constitution. The trial court granted summary judgment to the city on the grounds that the monument was government speech.
On appeal, the plaintiffs argued that the government property on which the monument is located was a limited public forum, and that the city’s decision to stop displaying the cross constituted viewpoint discrimination. However, applying Pleasant Grove City v. Summum’s statement that “[p]ermanent monuments displayed on public property typically represent government speech,” the appellate court agreed with the trial court that the monument was government speech. In a detailed analysis applying the three-factor government speech test from Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court determined that the monument on public land traditionally conveyed messages from the government, that passersby would interpret the message to be that of the government, and that the government maintained control over the message displayed by the monument. Even though the monument was lifted only at the request of private individuals, the court found that was no different from the case in Walker, where individuals requested special license plate designs that the state subsequently adopted.
As the court concluded, “Because the Free Speech Clause does not regulate government speech, and because the freedom of government to speak includes the right to removal of speech with which the government disapproves, Resolution 15–013, which prohibited the lifting mechanism of the Dewey Hill monument from being raised to show the cross, did not violate the Free Speech Clause.”