`
`No. _________
`================================================================================================================
`
`In The
`Supreme Court of the United States
`--------------------------------- ♦ ---------------------------------
`WADE STEVEN GARDNER, Mary Joyce Stevens, Randy
`Whittaker, Individually and on behalf of Southern War
`Cry, Amy Strickland on behalf of Veterans Monuments of
`America, Inc., Phil Walters, on behalf of Judah P. Benjamin
`Camp #2210 Sons of Confederate Veterans, and Ken Daniel,
`on behalf of Save Southern Heritage, Inc.,
`Petitioners,
`
`v.
`
`WILLIAM MUTZ IN HIS CAPACITY AS MAYOR OF
`THE CITY OF LAKELAND, FLORIDA, Tony Delgado in
`his Capacity as Administrator of the City of Lakeland,
`Florida, Don Selvege, Individually and in his Capacity as
`City of Lakeland, Florida Commissioner, Justin Troller,
`Individually and in his Capacity as City of Lakeland,
`Florida Commissioner, Phillip Walker, Individually and
`in his Capacity as City of Lakeland, Florida Commissioner,
`Antonio Padilla in his Capacity as President of Energy
`Services & Products Corp., Kenneth Detzner in his
`Capacity as Secretary of State of the State of Florida,
`Respondents.
`
`--------------------------------- ♦ ---------------------------------
`On Petition For Writ Of Certiorari
`To The United States Court Of Appeals
`For The Eleventh Circuit
`--------------------------------- ♦ ---------------------------------
`PETITION FOR WRIT OF CERTIORARI
`--------------------------------- ♦ ---------------------------------
`DAVID RHODES MCCALLISTER
`13742 17th Street
`Dade City, Florida 33525
`Telephone: 813-973-4319
`Facsimile: 352-260-0157
`DavidMcCallister@hotmail.com
`Attorney for Petitioners
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`QUESTION PRESENTED
`
`Should the government speech doctrine as recog-
`
`nized in Pleasant Grove City, Utah v. Summum be mod-
`ified in cases involving legacy monuments already in
`place in public forums?
`
`
`
`
`
`
`
`ii
`
`PARTIES TO THE PROCEEDING
`
`
`In case No. 20-13980, Petitioners Wade Steven
`
`Gardner, Mary Joyce Stevens, Randy Whittaker Indi-
`vidually and on behalf of Southern War Cry, Andy
`Strickland on behalf of Veterans Monuments of Amer-
`ica, Inc., Phil Walters on behalf of Judah P. Benjamin
`Camp #2210 Sons of Confederate Veterans, and Ken
`Daniel on behalf of Save Southern Heritage, Inc. were
`the plaintiffs in the district court proceedings and the
`appellants in the court of appeals proceedings.
`
`Respondents William Mutz, in his capacity as
`
`Mayor of Lakeland, Florida, Tony Delgado in his Ca-
`pacity as Administrator of the City of Lakeland, Flor-
`ida, Don Selvege, Individually and in his Capacity
`as City of Lakeland, Florida Commissioner, Justin
`Troller, Individually and in his as City of Lakeland,
`Florida Commissioner, Phillip Walker, Individually
`and in his Capacity as City of Lakeland, Florida Com-
`missioner, Antonio Padilla in his Capacity as President
`of Energy Services & Products Corp., Kenneth Detzner
`in his Capacity as Secretary of State of the State of
`Florida, were the defendants in the district court pro-
`ceedings and the appellees in the court of appeals pro-
`ceedings.
`
`
`
`
`
`
`
`iii
`
`CORPORATE DISCLOSURE STATEMENT
`
`
`
`Save Southern Heritage, Inc. and Veterans Monu-
`
`ments of America, Inc. are the only corporate petition-
`ers. There are no parent corporations or publicly held
`companies owning 10% or more of the Veterans Monu-
`ments of America, Inc. or Save Southern Heritage,
`Inc.’s stock.
`
`
`
`DIRECTLY RELATED CASES
`
`° Gardner v. Mutz, No. 8:18-CV-2843-T-33JSS, 2018
`WL 6061447, at *1 (M.D. Fla. Nov. 20, 2018) the
`district court denied Petitioners’ request for a tem-
`porary restraining order. Order entered on No-
`vember 20, 2018.
`
`° Gardner v. Mutz, No. 8:18-cv-2843-T-33JSS, 360
`F. Supp. 3d 1269 (M.D. Fla. 2019) the district court
`dismissed Petitioners’ First Amendment constitu-
`tional claim with prejudice and due process consti-
`tutional and state law claims without prejudice.
`Order entered January 28, 2019.
`
`° Gardner v. Mutz, No. 19-10461, 962, F.3d 1329,
`1334 (11th Cir. 2020), the Eleventh Circuit Court
`of Appeals affirmed in part and vacated in part,
`remanded the district court’s dismissal of Petition-
`ers’ claims. Judgment entered June 22, 2020.
`
`
`
`iv
`
`DIRECTLY RELATED CASES – Continued
`
`
`° Gardner v. Mutz, No. 8:18-cv-2843-T-33JSS, 488
`F. Supp. 3d 1204, 1206 (M.D. Fla. 2020), aff ’d, 857
`F. App’x 633 (11th Cir. 2021), the district court dis-
`missed the First Amendment claim without preju-
`dice for lack of standing and denied Petitioners’
`motion to amend complaint. Judgment entered
`September 22, 2020.
`
`° Gardner v. Mutz, No. 20-13980, 857 F. App’x 633,
`634 (11th Cir. 2021), the Eleventh Circuit affirmed
`the district court’s dismissal. Judgment entered
`May 24, 2021.
`
`
`
`
`
`
`
`v
`
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED...................................
`i
`PARTIES TO THE PROCEEDING ......................
`ii
`CORPORATE DISCLOSURE STATEMENT ......
`iii
`DIRECTLY RELATED CASES .............................
`iii
`TABLE OF CONTENTS .......................................
`v
`TABLE OF AUTHORITIES .................................. viii
`PETITION FOR WRIT OF CERTIORARI ..........
`1
`OPINIONS BELOW ..............................................
`1
`JURISDICTION .....................................................
`1
`STATUTES AND CONSTITUTIONAL PROVI-
`SIONS INVOLVED...........................................
`INTRODUCTION AND STATEMENT OF THE
`CASE ...................................................................
`REASONS FOR GRANTING THE PETITION ...
`
`I. Summum has taken on a life of its own
`and become a Knee-Jerk Defense to First
`Amendment Free Speech Challenges ........
`A. The Development of the Government
`Speech Doctrine ...................................
`B. Summum was a Major Departure from
`the Previous Applications of the Gov-
`ernment Speech Doctrine ....................
`
`2
`5
`
`
`
`8
`
`2
`
`6
`
`6
`
`
`
`vi
`
`TABLE OF CONTENTS – Continued
`
`9
`
`Page
`C. This Court’s Departure from the Tra-
`ditional Application of the Govern-
`ment Speech Doctrine in Summum
`has Resulted in an Expansion Into
`All Types and Modes of Speech Being
`Banned by the Government ................
` II. Summum Should Not Be Applied to Leg-
`acy Monument Cases ................................. 12
`A. Legacy Monuments do not fit within
`the holding of Summum ...................... 12
`B. American Legion’s Test may be applied
`to First Amendment Free Speech
`Cases to Narrow Summum When Leg-
`acy Monuments are Involved .............. 14
`C. If this Court Finds the American Legion
`test Unworkable Outside Establish-
`ment Clause Cases, then Petitioners
`ask that this Court Adopt Another
`Test to Narrow Summum or overrule
`Summum Altogether ........................... 16
`CONCLUSION ....................................................... 18
`
`APPENDIX
`Opinion, United States Court of Appeals for the
`Eleventh Circuit (May 24, 2021) ..................... App. 1
`Order Denying Second Motion for Leave to
`Amend Complaint (September 22, 2020) ........ App. 9
`Opinion, United States Court of Appeals for the
`Eleventh Circuit (June 22, 2020)................... App. 21
`
`
`
`vii
`
`TABLE OF CONTENTS – Continued
`
`Page
`
`Order Granting Motion to Dismiss and dismiss-
`ing Plaintiffs’ violation of First Amendment
`claim with prejudice and due process and
`state law claims without prejudice (January
`28, 2019) ......................................................... App. 47
`
`
`
`
`
`viii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`American Legion v. American Humanist Ass’n,
`___ U.S. ___, 139 S.Ct. 2067 (2019) ............. 14, 15, 16
`Brown v. Bd. of Ed. of Topeka,
`Shawnee County, Kan.,
`347 U.S. 483, 74 S.Ct. 686 (1954) ............................ 13
`Carey v. Brown,
`447 U.S. 455, 100 S.Ct. 2286 (1980) ...................... 6, 7
`Gardner v. Mutz,
`962 F.3d 1329 (11th Cir. 2020) .............................. 1, 4
`Gardner v. Mutz,
`857 F. App’x 633 (11th Cir. 2021) .............................. 4
`Hague v. Comm. for Indus. Org.,
`307 U.S. 496, 59 S.Ct. 954 (1939) .............................. 6
`Johanns v. Livestock Marketing Assn.,
`544 U.S. 550, 125 S.Ct. 2055 (2005) .......................... 7
`Leake v. Drinkard,
`20-13868, 2021 WL 4438899
`(11th Cir. Sept. 28, 2021) .................................. 10, 11
`Mech v. School Bd. of Palm Beach County, Fla.,
`806 F.3d 1070 (11th Cir. 2015) ................................ 12
`Perry Ed. Assn. v. Perry Local Educators’ Assn.,
`460 U.S. 37, 103 S.Ct. 948 (1983) .............................. 6
`Pleasant Grove City, Utah v. Summum,
`555 U.S. 460, 129 S.Ct. 1125 (2009) ................ passim
`Plessy v. Ferguson,
`163 U.S. 537, 16 S.Ct. 1138 (1896) .......................... 13
`
`
`
`ix
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Rosenberger v. Rector &
`Visitors of Univ. of Virginia,
`515 U.S. 819, 115 S.Ct. 2510 (1995) .......................... 7
`Rust v. Sullivan,
`500 U.S. 173, 111 S.Ct. 1759 (1991) .......................... 7
`Texas v. Johnson,
`491 U.S. 397, 109 S.Ct. 2533 (1989) .......................... 7
`Walker v. Texas Division, Sons
`of Confederate Veterans, Inc.,
`576 U.S. 200, 135 S.Ct. 2239 (2015) .................... 9, 10
`
`
`CONSTITUTION
`U.S. Const. amend. I ........................................... passim
`
`STATUTES
`28 U.S.C. §1254(1) ......................................................... 1
`
`BOOK
`G.K. Chesterton, Orthodoxy, 85 (1908) ...................... 18
`
`
`
`1
`
`PETITION FOR A WRIT OF CERTIORARI
`
` Wade Steven Gardner, Mary Joyce Stevens, Randy
`Whittaker Individually and on behalf of Southern War
`Cry, Andy Strickland on behalf of Veterans Monuments
`of America, Inc., Phil Walters on behalf of Judah P.
`Benjamin Camp #2210 Sons of Confederate Veterans,
`and Ken Daniel on behalf of Save Southern Heritage,
`Inc. petition for a writ of certiorari to review the judg-
`ment of the United States Court of Appeals for the
`Eleventh Circuit in the underlying case.
`--------------------------------- ♦ ---------------------------------
`
`OPINIONS BELOW
`
`
`The Eleventh Circuit’s Opinion is reported at
`Gardner v. Mutz, No. 20-13980, 857 F. App’x 633, 634
`(11th Cir. 2021) and reproduced at App. 1. The Judg-
`ment of the Eleventh Circuit for Gardner v. Mutz, No.
`19-10461, is reproduced at App. 21. The Order Denying
`Second Motion for Leave to Amend Complaint Gard-
`ner v. Mutz, No. 8:18-cv-2843-T-33JSS, 488 F. Supp. 3d
`1204, 1206 (M.D. Fla. 2020) is reproduced at App. 47.
`--------------------------------- ♦ ---------------------------------
`
`JURISDICTION
`
`
`The Eleventh Circuit Court of Appeals entered
`judgment on May 24, 2021. App. 1. This Court has ju-
`risdiction under 28 U.S.C. §1254(1).
`--------------------------------- ♦ ---------------------------------
`
`
`
`2
`
`STATUTES AND
`CONSTITUTIONAL PROVISIONS INVOLVED
`
`Congress shall make no law respecting an es-
`tablishment of religion or prohibiting the free
`exercise thereof; or abridging the freedom of
`speech, or of the press; or the right of the peo-
`ple peaceably to assemble, and to petition the
`Government for a redress of grievances.
`
`U.S. Const. amend. I.
`--------------------------------- ♦ ---------------------------------
`
`INTRODUCTION AND
`STATEMENT OF THE CASE
`
`
`Petitioners ask this Court to review the dismissal
`of Petitioners’ First Amendment claim by the District
`Court and affirmed by the Eleventh Circuit Court of
`Appeals. The case involves a Cenotaph erected in
`Lakeland, Florida, in Munn Park, a traditional civic
`public town square and centerpiece of the Nationally
`Registered Munn Park Historical District. The District
`Court denied the Petitioners’ request to amend their
`Complaint because it found amendment would be fu-
`tile to state First Amendment and Fourteenth Amend-
`ment claims.
`
`The Cenotaph was erected in 1909, it was the
`
`product of the public fundraising efforts of the United
`Daughters of the Confederacy with the permission and
`financial participation of the Lakeland City Commis-
`sion. Subsequently, the City used the Cenotaph in its
`successful request for National Register designation
`
`
`
`3
`
`for the area now known as the Munn Park Historical
`District. On December 4, 2017, the Lakeland City Com-
`mission, including the City Respondents, initiated re-
`moval of the Cenotaph from the center of Munn Park
`and the epicenter of the Historical District, and the
`City’s historic public forum.
`
`On November 20, 2018, the Petitioners brought
`
`suit to forestall the imminent removal of the Cenotaph.
`Doc. 1, Pg. 1-35. The City Respondents moved the
`District Court to dismiss the case on the grounds of
`standing and the assertion of the absolute right of un-
`fettered government speech. Respondent Padilla filed
`a separate motion to dismiss on similar grounds. The
`District Court issued an order on January 28, 2019,
`granting dismissal and closed the case.
`
`The District Court found a lack of standing as to
`
`Petitioners’ request for declaratory judgment regard-
`ing breaches of due process and dismissed the claim
`without prejudice and dismissed Petitioners’ First
`Amendment claim with prejudice. Doc. 43, Pg. 17. The
`District Court also refused to assert supplemental ju-
`risdiction of Petitioners’ state claims and dismissed Pe-
`titioners’ state law claims without prejudice. Doc. 43,
`Pg. 17. Petitioners filed a timely Notice of Appeal, but
`despite pendency of their appeal, the City Respondents
`and Respondent Padillo moved ahead with removal of
`the Cenotaph in May 2019. It was transported and re-
`erected in a newly created non-historic city park on a
`site that had been gentrified by the City from being a
`traditionally historically “black” neighborhood.
`
`
`
`4
`
`The Petitioners’ appeal was heard by the Eleventh
`
`Circuit in Gardner v. Mutz, 962 F.3d 1329, 1343 (11th
`Cir. 2020). The Eleventh Circuit held the Petitioners
`had no standing to bring their claims under Article III
`standing requirements. Doc. 48, Pg. 25. The Eleventh
`Circuit affirmed the dismissal of Petitioners’ declara-
`tory judgment claim based on due process violations
`and remanded the First Amendment claim back to the
`District Court to dismiss without prejudice to refiling
`which provided the Petitioners an opportunity to refile
`their claim. Doc. 48, Pg. 26. Thus, the case went back
`to the District Court.
`
`Once the case was remanded, the Petitioners im-
`
`mediately requested leave to amend their Complaint
`to resolve the deficiency in standing identified by the
`Eleventh Circuit so as to avoid the wasted time and
`expense of filing a new suit, Doc. 51, 1-32, despite the
`pro forma docket entry dismissal entered the same day
`the case was remanded dismissing Petitioners’ First
`Amendment claim without prejudice. On September
`22, 2020, the District Court entered an Order denying
`Petitioners’ request to amend and ordering the case to
`remain closed.
`
`Once again, Petitioners appealed to the Eleventh
`
`Circuit. In Gardner v. Mutz, 857 F. App’x 633, 634 (11th
`Cir. 2021), the Eleventh Circuit found that the Peti-
`tioners’ amended complaint had asserted sufficient
`facts to support Article III standing but affirmed the
`District Court’s dismissal based on a failure to state
`First Amendment and Fourteenth Amendment claims.
`
`
`
`5
`
`Petitioners ask this Court to take this opportunity
`
`to re-examine Pleasant Grove City, Utah v. Summum,
`555 U.S. 460, 129 S.Ct. 1125 (2009) and distinguish
`whether legacy monuments constitute government
`speech or a form of hybrid speech representing the
`partnership between government and private speech
`based on the long-standing public display of the mon-
`uments and as such, whether the removal of the mon-
`uments constitute a violation of First Amendment Free
`Speech rights. While the Cenotaph has been removed
`at this point, it is still under the control of the City and
`Petitioners seek to have the Cenotaph moved back to
`its legacy location.
`--------------------------------- ♦ ---------------------------------
`
`REASONS FOR GRANTING THE PETITION
`
`Petitioners ask the Court to grant their petition
`
`because courts across the country are indiscriminately
`applying Pleasant Grove City, Utah v. Summum and
`finding legacy monuments are not protected by the
`First Amendment. Municipalities are relying on Sum-
`mum to silence speech that they have co-authored for
`years, and which does not fit into the “government
`speech” mold that was set forth in Summum.
`
`
`
`
`
`6
`
`I. Summum has taken on a life of its own
`and become a Knee-Jerk Defense to First
`Amendment Free Speech Challenges.
`A. The Development of the Government
`Speech Doctrine.
`
`The Supreme Court long ago recognized that
`
`members of the public retain strong free speech rights
`when they venture into public streets and parks. In
`Hague v. Comm. for Indus. Org., 307 U.S. 496, 59 S.Ct.
`954 (1939), this Court recognized:
`
`Wherever the title of streets and parks may
`rest, they have immemorially been held in
`trust for the use of the public and, time out of
`mind, have been used for purposes of assem-
`bly, communicating thoughts between citi-
`zens, and discussing public questions. Such
`use of the streets and public places has, from
`ancient times, been a part of the privileges,
`immunities, rights, and liberties of citizens.
`Hague, 307 U.S. at 515-16. In places which by long tra-
`dition or by government fiat have been devoted to as-
`sembly and debate, the rights of the state to limit
`expressive activity should be sharply circumscribed.
`Perry Ed. Assn. v. Perry Local Educators’ Assn., 460
`U.S. 37, 45, 103 S.Ct. 948 (1983). In these quintessen-
`tial public forums, the government may not prohibit all
`communicative activity. Id. For the state to enforce a
`content-based exclusion it must show that its regula-
`tion is necessary to serve a compelling state interest
`and that it is narrowly drawn to achieve that end.
`Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290
`
`
`
`7
`
`(1980). The First Amendment guarantees that “the
`government may not prohibit the expression of an idea
`simply because society finds the idea itself offensive or
`disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109
`S.Ct. 2533 (1989).
`
`The Court first wrestled with the concept of gov-
`
`ernment speech in cases where public agencies ex-
`pended funds that supported private individuals or
`groups. The origin of the government speech doctrine
`is typically traced back to Rust v. Sullivan, 500 U.S.
`173, 111 S.Ct. 1759 (1991). In Rust, this Court consid-
`ered a First Amendment challenge to federal regula-
`tions that prohibited doctors who accepted certain
`federal funds from counseling patients on abortion as
`a family planning method. Rust, 500 U.S. at 191-92.
`Although the Court never used the term “government
`speech doctrine,” or any variation on the phrase, it held
`that the government need not support messages or
`speech that compete with its own viewpoint. This
`Court continued to develop the doctrine as it related to
`literal speech in Rosenberger v. Rector & Visitors of
`Univ. of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 2511
`(1995) and Johanns v. Livestock Mktg. Ass’n, 544 U.S.
`550, 125 S.Ct. 2055, 2056 (2005). Then in Pleasant
`Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct.
`1125 (2009), the Court expanded the government
`speech doctrine from literal speech to speech proposed
`or crafted by private parties and facilitated by the gov-
`ernment, by displaying the message on a government
`medium.
`
`
`
`
`
`8
`
`B. Summum was a Major Departure from
`the Previous Applications of the Gov-
`ernment Speech Doctrine.
`In Summum, this Court departed from previous
`
`cases that limited the domain of government speech to
`direct, literal government action to expand the govern-
`ment speech doctrine to permanent monuments dis-
`played on public property including those provided by
`private parties. The facts of Summum arose from a
`town rejecting the donation of a monument conveying
`religious text to be erected in a public park even
`though the park already had a privately donated
`statue of the Ten Commandments. Summum, 555
`U.S. at 465-66. This Court found that a statue in a pub-
`lic park is speech. Id. at 471. But the Court did not ap-
`ply a traditional First Amendment forum test. Instead,
`the Justices unanimously held that curation of pri-
`vately donated monuments in the park was the town’s
`own speech and thus did not violate the First Amend-
`ment rights of the donor. Id. at 481. The Court relied
`on the fact that monuments have historically been
`used by governments to express their messages, that
`the town exercised “selected receptivity” to curate its
`message, and that the public closely identifies city
`parks with the cities that own them. Id. at 471-72. Im-
`portantly, the holding recognized that the doctrine
`could apply where private parties express the govern-
`ment’s message: “[a] government entity may exercise
`[the] same freedom to express its views [even] when it
`receives assistance from private sources for the pur-
`pose of delivering a government-controlled message.”
`
`
`
`9
`
`Id. at 468. The Court emphasized the Free Speech
`Clause restricted government regulation of private
`speech, but it did not regulate government speech.
`Id. at 467. By so doing, the monument in Summum
`was immune from First Amendment restraints under
`the Free Speech Clause. Id. Both Justices Souter and
`Breyer feared an expansion of the doctrine, with
`Souter explicitly stating in his concurrence that an
`overly broad government speech doctrine would make
`it easy for the government to pick and choose among
`viewpoints, supporting those it favors and suppressing
`those it does not. Id. at 487 (Souter, J., concurring). Jus-
`tice Souter’s concern of categorical rule has become a
`harsh reality for monuments that express a different
`viewpoint than those that are currently in favor and
`has expanded in application over the years with no
`limit in sight.
`
`
`
`C. This Court’s Departure from the Tradi-
`tional Application of the Government
`Speech Doctrine in Summum has Re-
`sulted in an Expansion Into All Types
`and Modes of Speech Being Banned by
`the Government.
`
`The jump from literal speech to monuments in
`
`Summum has opened the floodgates on what the gov-
`ernment will argue is protected by the government
`speech doctrine. In Walker v. Texas Division, Sons of
`Confederate Veterans, Inc., 576 U.S. 200, 135 S.Ct. 2239
`(2015) this Court heavily citing Summum expanded
`when symbolic speech may qualify as government
`
`
`
`10
`
`speech. The Court held that restricting vanity license
`plate designs was permissible as it was govern-
`ment speech using the following test from Summum:
`(1) whether the medium of expression has tradi-
`tionally been used to express government messages,
`(2) whether the medium is “closely identified in the
`public mind” with the state, and (3) whether the state
`maintains “direct control” and “final approval author-
`ity” over the message. Walker, 576 U.S. at 212-13. Ap-
`plication of the Summum test convinced the Court that
`the license plates were government speech, as opposed
`to the creation of a public forum for private speech or
`mixed government and private speech. Id. at 208-09.
`The Walker Court did not explain exactly why it chose
`to use the Summum test or why the appellate court’s
`reasoning was incorrect or flawed. It simply applied
`the test from Summum. Id. at 207. Finally, the Walker
`Court neither explicitly endorsed the Summum test for
`all government-speech cases, nor explicitly rejected
`any of the other tests used in circuit court cases or de-
`veloped in the Summum concurrences. The dissent in
`Walker did warn about the potential pitfalls of the con-
`tinued expansion of the government speech doctrine.
`Walker, 135 S.Ct. at 2254 (Alito, J., dissenting) (“[The
`decision] establishes a precedent that threatens pri-
`vate speech that government finds displeasing.”). Again,
`the warning was ignored.
`Recently, the Eleventh Circuit decided Leake v.
`
`Drinkard, 20-13868, 2021 WL 4438899, at *1 (11th
`Cir. Sept. 28, 2021). In Leake, a member of the Sons
`of Confederate Veterans, Richard Leake, applied to
`
`
`
`11
`
`participate in the Old Soldiers Day Parade, a pro-
`American veterans’ parade funded and organized by
`the City of Alpharetta, Georgia. Id. at *1. The Sons of
`Confederate Veterans had participated in the parade
`with the Confederate Battle Flag for some 18 years
`with no problems. The City informed Leake that the
`Sons of Confederate Veterans would be allowed to par-
`ticipate, but only if it agreed not to fly the Confederate
`battle flag. Id. Leake and another member of the group
`filed suit against City officials alleging that the City
`violated their constitutional rights to speak freely
`under the First and Fourteenth Amendments. Id.
`While admitting there is no precise test to determine
`whether speech is government speech, the Eleventh
`Circuit applied its own three factor test set forth in
`Mech v. Sch. Bd., 806 F.3d 1070, 1074 (11th Cir. 2015)
`looking at: history, endorsement, and control. Id. Ap-
`plying the Mech factors to the parade and frequently
`citing Summum, the Eleventh Circuit held the Amer-
`ican war veterans’ parade, made up of hundreds of
`people, constituted government speech, and thus, the
`government was entitled to choose what viewpoints
`would and would not be expressed in the parade. Sum-
`mum has again been expanded to another form of
`speech tangentially associated with the government,
`and thus, not subject to the protections of the First
`Amendment.
`
`
`
`
`
`
`12
`
`II. Summum Should Not Be Applied to Legacy
`Monument Cases.
`A. Legacy Monuments do not fit within
`the holding of Summum.
`The Cenotaph was erected in Lakeland, Florida, in
`
`Munn Park, a traditional civic public town square and
`centerpiece of the Nationally Registered Munn Park
`Historical District. It consists of a granite base and ob-
`elisk surmounted by a statue of a Confederate soldier.
`It is some 26 feet high, weighing approximately 14
`tons. It is engraved with the words “Confederate Dead”
`as well as a poem and base relief art and the Southern
`Cross. Erected in 1909, it was the product of the public
`fundraising efforts of the United Daughters of the Con-
`federacy with the permission and financial participa-
`tion of the Lakeland City Commission. The Cenotaph
`is a legacy of speech displayed for over 109 years in a
`partnership between private individuals and organiza-
`tions and the local government. While a few currently
`in leadership positions with the City of Lakeland see a
`monument to white supremacy and slavery, others see
`the monument as a memorial to local soldiers that sac-
`rificed their lives in war.
`
`The Cenotaph is built out of stone and bronze and
`
`was meant to be permanent and withstand the passage
`of time. The women who raised the money to build the
`monument at a time when funding was scarce believed
`the natural elements would be the biggest threat and
`could not imagine the very government that partnered
`with them to place the monument in the community
`for the community would be the force that tears them
`
`
`
`13
`
`down. The Cenotaph displayed in Lakeland’s town
`square for over 109 years should be granted more pro-
`tection than a new request to erect a monument in a
`new public park as in Summum. While the government
`has the right to erect new monuments and may neces-
`sarily decide what those monuments should represent,
`the old, legacy monuments the local governments ap-
`proved of and honored for decades that have served as
`memorials to the dead deserve more protection. The
`monuments located in the National Mall in Washing-
`ton D.C. that memorialize the dead have been added to
`over time, from the Washington Monument to the Lin-
`coln Memorial, to the recent Martin Luther King Me-
`morial and represent speech the government has
`found acceptable to display over time. None of them
`have been removed. It is not a zero-sum game, where
`only one speech is allowed at a time, nor is it a chess
`game where monuments should be moved about at the
`whim of who controls the landscape. Summum recog-
`nizes the limitations of space, but such should only be
`a factor and not absolutely determinative of the place-
`ment and maintenance of legacy monuments. Nor is it
`a ping-pong game of removal and replacement from
`one administration to the next, ad infinitum.
`The Summum case has served its term; as did
`
`Plessy v. Ferguson, 163 U.S. 537, 538, 16 S.Ct. 1138
`(1896), and should be modified for the same reason
`found in Brown v. Bd. of Ed. of Topeka, Shawnee
`County, Kan., 347 U.S. 483, 74 S.Ct. 686 (1954). Sepa-
`rate is not equal when it comes to expression, as it is
`not in education, accommodation, and transportation.
`
`
`
`14
`
`Unilaterally moving expressive monuments away from
`the traditional public squares, they have occupied for
`generations is not the cure-all governments wish it to
`be when virtue-signaling their own opinions and arbi-
`trarily suppressing contrary pre-existing views.
`
`
`
`B. American Legion’s Test may be applied
`to First Amendment Free Speech Cases
`to Narrow Summum When Legacy Mon-
`uments are Involved.
`In American Legion v. American Humanist Ass’n,
`
`139 S.Ct. 2067 204 L. Ed. 2d 452 (2019) this Court re-
`cently acknowledged that a monument could have
`multiple meanings that develop over time. American
`Legion, 139 S.Ct. at 2074. The Bladensburg Peace
`Cross (“Bladensburg Cross”) was erected as a tribute
`to 49 area soldiers who gave their lives in the First
`World War. Id. at 2074. Eighty-nine years after the
`dedication of the Bladensburg Cross, the plaintiffs filed
`the lawsuit, claiming that they were offended by the
`sight of the memorial on public land. While the Ameri-
`can Legion case involves an alleged violation of the Es-
`tablishment Clause of the First Amendment and not
`the Free Speech Clause, this Court recognized that
`over time symbols like the Bladensburg Cross could
`take on special significance as a memorial symbolizing
`the community’s grief over the loss of young men who
`sacrificed their lives. Id. In American Legion, this
`Court adopted “a presumption of constitutionality” for
`religiously expressive “longstanding monuments, sym-
`bols, and practices.” Id. at 2082.
`
`
`
`15
`
`In reaching that holding, this Court provided four
`
`reasons why the application of a presumption of con-
`stitutionality was better suited for cases involving long
`standing monuments: (1) when monuments, symbols,
`or practices were originally established long ago, “iden-
`tifying their original purpose or purposes may be espe-
`cially difficult”; (2) with the passage of time, “the
`purposes associated with an established monument,
`symbol, or practice” and the reasons for maintaining
`them “often multiply”; (3) the message conveyed by the
`monument, symbol, or practice may evolve over time
`and “[t]he community may come to value them without
`necessarily embracing their religious roots”; and (4)
`when the monument, symbol, or practice has become
`familiar and of historical significance, “removing it
`may no longer appear neutral” but “aggressively hos-
`tile to religion.” Id. at 2081-85. Finally, this Court sug-
`gested that the presumption could be overcome by a
`showing of discriminatory intent in the decision to
`maintain the challenged practice or by a showing of
`“deliberate [ ] disrespect [ ]” by that practice on the ba-
`sis of religion. Id. at 2074, 2089. Petitioners request
`this same test adopted for the Establishment Clause
`be applied to First Amendment Free Speech cases in-
`volving legacy monuments.
`
`The Cenotaph shares many similarities with the
`
`Bladensburg Cross. The Cenotaph was erected over
`109 years ago while the Bladensburg Cross was
`erected over 89 years ago. While some just see the
`Bladensburg Cross as a symbol of Christianity sup-
`ported by the government, it was erected as a
`
`
`
`16
`
`memorial and over time has shown to be a location for
`the community to express their grief over the loss of 49
`local soldiers to the atrocities of war. The Cenotaph is
`seen by some as just a monument to white supremacy
`and slavery, but it too was erected as a memorial and
`over time has shown to be a location for the
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
