No. 21-600
`
`In the
`Supreme Court of the United States
`__________________
`
`WADE STEVEN GARDNER, ET AL.,
`Petitioners,
`
`v.
`
`WILLIAM MUTZ, IN HIS CAPACITY AS MAYOR OF THE
`CITY OF LAKELAND, FL., ET AL.,
`Respondents.
`
`__________________
`On Petition for Writ of Certiorari to the
`United States Court of Appeals
`for the Eleventh Circuit
`__________________
`BRIEF FOR THE RESPONDENTS
`IN OPPOSITION
`__________________
`
`JACK REITER
` Counsel of Record
`KRISTIE HATCHER-BOLIN
`MARK N. MILLER
`GRAYROBINSON, P.A.
`One Lake Morton Drive
`Lakeland, FL 33801
`(863) 284-2200
`Jack.reiter@gray-robinson.com
`Kristie.hatcher-bolin@gray-robinson.com
`Mark.miller@gray-robinson.com
`
` Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`
`
`In the
`Supreme Court of the United States
`__________________
`
`WADE STEVEN GARDNER, ET AL.,
`Petitioners,
`
`v.
`
`WILLIAM MUTZ, IN HIS CAPACITY AS MAYOR OF THE
`CITY OF LAKELAND, FL., ET AL.,
`Respondents.
`
`__________________
`On Petition for Writ of Certiorari to the
`United States Court of Appeals
`for the Eleventh Circuit
`__________________
`BRIEF FOR THE RESPONDENTS
`IN OPPOSITION
`__________________
`
`JACK REITER
` Counsel of Record
`KRISTIE HATCHER-BOLIN
`MARK N. MILLER
`GRAYROBINSON, P.A.
`One Lake Morton Drive
`Lakeland, FL 33801
`(863) 284-2200
`Jack.reiter@gray-robinson.com
`Kristie.hatcher-bolin@gray-robinson.com
`Mark.miller@gray-robinson.com
`
` Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ....................................... ii
`
`BRIEF IN OPPOSITION ............................................ 1
`
`INTRODUCTION ........................................................ 1
`
`STATEMENT OF THE CASE .................................... 2
`
`REASONS TO DENY THE PETITION ...................... 6
`
`I. The Eleventh Circuit properly concluded
`that the Confederate Monument, including
`the City Commission’s Decisions with
`respect
`to
`its placement,
`constitute
`Government Speech .............................................. 6
`
`
`
`A. Pleasant Grove City v. Summum
`controls the disposition of permanent
`monuments on public property ...................... 7
`
`
`B. Petitioners have no free speech rights in
`the Confederate Monument or
`its
`location ............................................................ 9
`
`
`II. American Legion did not create free speech
`rights in public monuments ................................ 13
`
`
`CONCLUSION .......................................................... 17
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Cases
`
`American Legion v. American Humanist Ass'n,
` 139 S. Ct. 2067, 204 L. Ed. 2d 452 (2019) ...... 13, 14, 15
`
`Bd. of Regents of Univ. of Wisconsin Sys. v.
`Southworth, 529 U.S. 217 (2000) .......................... 17
`
`
`Camreta v. Greene,
` 563 U.S. 692 (2011) .................................................. 2
`
`Capitol Square Review & Advisory Board v. Pinette,
`115 S. Ct. 2440 (1995) ............................................ 14
`
`
`Gardner v. Mutz,
` 857 Fed. Appx. 633 (11th Cir. 2021) ....................... 5
`
`Gardner v. Mutz,
` 962 F. 3d 1329 (11th Cir. 2020) ............................... 4
`
`Johanns v. Livestock Mktg. Ass'n,
` 544 U.S. 550 (2005) .......................................... 16, 17
`
`Pleasant Grove City v. Summum,
` 555 U.S. 460 (2009) ........................................ passim
`
`Rosenberger v. Rector & Visitors of the Univ. of Va.,
`515 U.S. 819 (1995) ................................................ 17
`
`
`Walker v. Texas Div., Sons of Confederate Veterans,
`Inc., 135 S. Ct. 2239 (2015) .............. 9, 10, 12, 15, 16
`
`
`
`
`
`
`
`1
`
`BRIEF IN OPPOSITION
`
`Respondents, William Mutz, in his official
`
`capacity as Mayor of the City of Lakeland, Anthony
`Delgado, in his official capacity as City Manager of
`the City of Lakeland, Don Selvage, individually and
`in his official capacity as City of Lakeland
`Commissioner, Justin Troller, individually and in his
`official capacity as a City of Lakeland Commissioner,
`Phillip Walker, individually and in his official
`capacity as a City of Lakeland Commissioner, and
`Antonio Padilla, individually and in his capacity as
`President of Energy Services & Products Corp.
`(“Respondents”),
`respectfully
`request
`that
`the
`Petition for Writ of Certiorari be denied.
`
`
`INTRODUCTION
`
`individuals and
`Petitioners, a group of
`associations with an expressed interest in promoting
`and preserving the history of the Confederacy, have
`challenged the Lakeland City Commission’s decision
`to relocate a Confederate Monument from City-
`owned Munn Park to City-owned Veterans Park,
`both of which are situated within the corporate limits
`of the City of Lakeland. Petitioners sued the current
`Mayor and former and current City Commissioners
`who voted to relocate the Monument (as opposed to
`the entire City Commission), the City Manager who
`directed the relocation, and the contractor the City
`hired to move the Monument to Veterans Park.
`
`
`Petitioners claim free speech rights in the
`Monument
`itself,
`including decisions regarding
`where it should be placed. In their brief, Petitioners
`
`
`
`2
`
`
`claim that because the Confederate Monument has
`been situated in Munn Park since 1909, it is a
`“legacy” monument and cannot be removed—or in
`this case, even relocated to another park—and must
`remain in Petitioners’ preferred park in perpetuity.
`But this contention is entirely inconsistent with the
`government speech doctrine as set forth in Pleasant
`Grove City v. Summum, 555 U.S. 460 (2009).
`
` This Court “sparingly exercise[s]” its power to
`grant certiorari, and this case does not present any
`basis for departing from the consistent application of
`this principle. Camreta v. Greene, 563 U.S. 692, 709
`(2011). For the reasons discussed below, this Court
`should deny certiorari review. There is no conflict
`among the
`lower courts with respect to the
`application of the government speech doctrine in a
`case presenting these facts. And both the Middle
`District of Florida and
`the Eleventh Circuit
`appropriately applied this doctrine when they found
`further amendment would be futile because a
`permanent monument placed in a public park is not
`subject to the Free Speech Clause of the First
`Amendment to the United States Constitution.
`
`
`STATEMENT OF THE CASE
`
`The subject of this dispute is a Confederate
`Monument originally installed in 1909 in Munn
`Park. Munn Park is centrally located in downtown
`Lakeland and situated within a nationally-registered
`historic district. (App. 24-25). The Lakeland City
`Commission voted
`to move
`the Confederate
`Monument from Munn Park to another city park,
`Veterans Park. Petitioners sued Respondents in
`
`
`
`3
`
`
`the Lakeland City
`following
`November 2018
`Commission’s decision and asserted that relocating
`the Monument violated their free speech rights under
`the First Amendment and their due process rights
`under the Fourteenth Amendment.
`(App. 25).
`Principal to this proceeding is Petitioners’ contention
`that the City’s relocation of the Monument to another
`city park violated their free speech rights because the
`Monument “communicated minority political speech
`in a public forum.” (App. 25).
`
`Only one Petitioner, Steven Gardner, claimed
`to be a citizen and taxpayer of the City of Lakeland.
`But all Petitioners alleged they had an interest in the
`Confederate Monument
`either because
`their
`ancestors were among the “Confederate Dead,” or
`based upon their interest in preserving Southern
`history, educating the public regarding Southern
`history, and preserving monuments to members of
`the Confederacy. (App. 41-43).
`
`Respondents moved to dismiss the original
`Complaint, both for lack of standing and for failure to
`state a cause of action. The District Court agreed.
`(App. 61). It dismissed the First Amendment claim
`with prejudice, finding Petitioners could not establish
`a violation of their First Amendment rights. (App.
`61). The District Court also dismissed the due
`process claim, without prejudice, based on lack of
`standing. (App. 61).
`
`On appeal, the Eleventh Circuit affirmed in
`part, and reversed in part. The Circuit Court agreed
`Petitioners lacked standing to assert a claim for
`violation of their due process rights and affirmed the
`
`
`
`4
`
`
`dismissal of the due process claim without prejudice.
`Gardner v. Mutz, 962 F. 3d 1329, 1343 (11th Cir.
`2020). But the Circuit Court vacated the dismissal of
`the First Amendment claim with prejudice, finding
`the District Court erred in “bypassing standing to
`address the merits” and concluding Petitioners did
`not satisfy Article III standing. Id. at 1339, 1341-43,
`1344. As such, it vacated the District Court’s order
`and remanded for entry of an order dismissing
`Petitioners’ First Amendment
`claim without
`prejudice. Id. at 1344.
`
`On remand, after the District Court dismissed
`Petitioners’ First Amendment
`claim without
`prejudice for lack of jurisdiction, Petitioners moved
`for leave to amend. In their proposed Amended
`Complaint, Petitioners alleged that the individual
`and associational Petitioners had gathered before the
`Confederate Monument in its then-current location
`in Munn Park to honor Confederate dead, to express
`their speech, and to “engage and educate the public.”
`(App. 3-4). They also alleged that certain Petitioners
`publish literature about the Monument. (App. 4).
`Petitioners continued to assert that moving the
`Monument
`to another park diminished and
`suppressed their speech, thereby violating their free
`speech rights.
`
`Respondents opposed Petitioners’ attempt to
`amend, maintaining they still had not demonstrated
`standing, and that even if they could, their state and
`federal claims failed as a matter of law. (App.13).
`Respondents
`therefore maintained amendment
`would be futile. (App. 13). The District Court agreed
`and denied leave to amend. (App. 18-19). The
`
`
`
`5
`
`
`District Court determined that even if Petitioners
`could establish standing, their free speech and due
`process claims would be subject to dismissal on the
`merits. (App. 18-19).
` First, because both the
`Confederate Monument and the decision to relocate it
`“are government speech—not Plaintiffs’ speech . . .
`[the] First Amendment claim fails as a matter of
`law.” (App. 18) (citing Pleasant Grove City v.
`Summum, 555 U.S. 460, 472 (2009)). Second, and
`related
`to
`the
`first, because
`the Monument
`constitutes government speech, Petitioners could not
`establish “the deprivation of a constitutionally
`protected
`liberty or property
`interest”
`in the
`Monument to sustain a due process claim. (App. 19).
`
`Petitioners again appealed to the Eleventh
`Circuit, which affirmed the District Court’s order
`denying leave to amend. Gardner v. Mutz, 857 Fed.
`Appx. 633, 635–36 (11th Cir. 2021). While the
`Eleventh Circuit found Petitioners had standing to
`challenge the relocation of the Monument,
`it
`concluded the District Court “correctly concluded
`that they failed to state a claim, as to both their First
`and Fourteenth Amendment claims.” Id. at 635. The
`Circuit Court explained that “Monuments in public
`parks, even when
`funded by private parties,
`constitute government speech,” which “doesn't violate
`the Free Speech Clause of the First Amendment.” Id.
`at 635. As such, it concluded “the City's relocation of
`the monument didn't violate the plaintiffs’ rights . .
`..” Id. at 636. And because Petitioners “didn't allege
`that the City deprived them of any constitutionally
`protected liberty or property interest by relocating
`the monument,” the Eleventh Circuit concluded that
`“on the facts alleged, the City didn’t violate the Due
`
`
`
`6
`
`
`Process Clause of the Fourteenth Amendment.” Id.
`This Petition followed.
`
`
`REASONS TO DENY THE PETITION
`
`
`
`I. The Eleventh Circuit properly concluded
`that the Confederate Monument, including
`the City Commission’s Decisions with
`respect
`to
`its placement,
`constitute
`Government Speech.
`
`Petitioners do not maintain the Eleventh
`Circuit’s decision raises a federal question on which
`there is conflict among other United States courts of
`appeals or state courts of last resort. Nor do
`Petitioners maintain the Eleventh Circuit’s decision
`conflicts with this Court’s precedent.
` Rather,
`Petitioners appear to argue that this case raises an
`important federal question that this Court should
`settle.
`
`But there is nothing to settle. The Eleventh
`Circuit decided this matter based on the government
`speech doctrine as set forth in Pleasant Grove City v.
`Summum, 555 U.S. 460, 129 S. Ct. 1125 (2009).
`Petitioners simply disagree both with the application
`of the government speech doctrine in this case and
`with Summum generally, wrongly characterizing it
`as a “departure” from this Court’s First Amendment
`jurisprudence. Both positions are incorrect. The
`Confederate Monument,
`including
`the City
`Commission’s decisions concerning its placement,
`squarely constitute government speech, and the
`Eleventh Circuit correctly concluded that Petitioners
`have no free speech rights in government speech.
`
`
`
`
`
`7
`
`A. Pleasant Grove City v. Summum controls
`the
`disposition
`of
`permanent
`monuments on public property.
`
`
`In Pleasant Grove City v. Summum, 555 U.S.
`
`460, 472 (2009) this Court clarified that while public
`parks are traditional public forums, the monuments
`that governments place in such spaces generally “are
`meant to convey and have the effect of conveying a
`government message, and thus they constitute
`government speech.” 555 U.S. at 472. The plaintiffs
`in Summum alleged that Pleasant Grove City
`violated their free speech rights when it denied them
`a permit to construct their own monument in a city
`park that housed various monuments, including a
`donated Ten Commandments monument. Id. at 466.
`The plaintiffs complained that the city discriminated
`against them by permitting the construction of a Ten
`Commandments monument in the same public park
`where the plaintiffs were denied a permit to
`construct their own monument, thereby violating
`their free speech rights. Id.
`
`The Tenth Circuit reversed the district court
`order denying the plaintiffs’ request for a preliminary
`injunction, reasoning that a park is a traditional
`public forum and that the city “could not reject the
`Seven Aphorisms monument unless
`it had a
`compelling justification that could not be served by
`more narrowly tailored means.” Id. But this Court
`vacated the Tenth Circuit’s decision because “[t]he
`Free Speech Clause restricts government regulation
`of
`private
`speech...[but]
`does not
`regulate
`government speech. Id. at 467. As this Court
`explained, the government “has the right to ‘speak
`
`
`
`8
`
`
`for itself’” and has long used monuments and statues
`to do so. Id.
`
`The fact that a private group funded the Ten
`Commandments monument in Pleasant Grove’s park
`did not alter the application of the government
`speech doctrine. It did not matter whether the
`government erected the monument itself or accepted
`a monument donated by a private party.
` “A
`government entity may exercise this same freedom to
`express its views when it receives assistance from
`private sources for the purpose of delivering a
`government-controlled message.” Id.
`
`select
`decision makers
`“Government
`monuments
`that portray what
`they view as
`appropriate
`for the place
`in question....,” and
`therefore they need not accept every privately funded
`monument offered. Id. at 472. This is so because the
`monuments the government chooses to erect “are
`meant to convey and have the effect of conveying a
`government message,” and are thus government
`speech. Id. This Court rejected the Summum
`plaintiffs’ contention “that a monument can convey
`only one
`‘message’—which
`is, presumably, the
`message intended by the donor.” Id. at 474.
`
`In this case, Petitioners assert the same
`argument the Summum plaintiffs pushed—that the
`Monument conveyed the message of the donors,
`principally
`the UDC, and by extension,
`the
`Petitioners. The Eleventh Circuit properly rejected
`this argument.
`
`
`
`
`
`
`9
`
`B. Petitioners have no free speech rights in
`the Confederate Monument or
`its
`location.
`
`
`While Petitioners claim the City’s relocation of
`the Monument violated their individual speech
`rights, their allegations demonstrate the decisions to
`construct, maintain, and ultimately relocate the
`Monument constitute government speech.
` For
`example, Petitioners allege City Commission meeting
`minutes reflect that the Commission approved the
`UDC’s petition to construct the Monument in Munn
`Park in 1908. (App. 24-25).
` So according to
`Petitioners, the City controlled the selection of the
`Monument in 1908 through an official act of the City
`Commission, sanctioned the
`installation of the
`Confederate Monument in Munn Park, and—over a
`century after the Monument’s installation—decided
`to move the Monument to Veterans Park after it
`received complaints from constituents. (App. 24-25).
`Both the Monument itself and the City’s decisions
`regarding
`its placement constitute government
`speech, and thus, are not subject to the Free Speech
`Clause.
`
`
`
`This conclusion is buttressed not only by
`Summum, but also this Court’s decision in Walker v.
`Texas Div., Sons of Confederate Veterans, Inc., 135 S.
`Ct. 2239, 2249 (2015). In Walker the Sons of
`Confederate Veterans (“SCV”) challenged the Texas
`Department of Motor Vehicles Board’s rejection of
`their proposal for a specialty license plate featuring
`the Confederate battle flag, arguing the DMV’s
`rejection violated their First Amendment right to
`freedom of speech. 135 S. Ct. at 2243-44. But this
`
`
`
`10
`
`
`Court rejected the SCV’s challenge, concluding the
`state’s
`specialty
`license
`plates
`constituted
`government speech and were not subject to the Free
`Speech Clause of the First Amendment. Id. at 2245-
`46.
`
`
`The Court explained that license plates have
`long been used to “communicate[] messages from the
`States,” such as “slogans to urge action, to promote
`tourism, and to tout local industries.” Id. at 2248.
`Texas
`had
`“selected
`various messages
`to
`communicate through its license plate designs,” and
`the license plate designs were “closely identified”
`with the State of Texas as each plate “is a
`government article serving the governmental purpose
`of vehicle registration and identification.” Id. at 2248-
`49. The state also “maintain[ed] direct control over
`the messages conveyed on its specialty plates,”
`including having sole control of “the design, typeface,
`color, and alphanumeric pattern for all license
`plates.’” Id. at 1249.
`
`Summum and Walker controlled the Eleventh
`
`Circuit’s decision here. The City spoke when its
`Commission approved, through a vote, the UDC’s
`petition to install the Monument in 1908 and when
`the City unveiled the Monument in Munn Park in
`1910. The City spoke again when it decided to move
`that Monument to Veterans Park in 2018. These
`official government acts,
`culminating
`in
`the
`construction and placement of the Monument itself,
`constitute the speech of the City, not Petitioners.
`Petitioners just happen to agree with some of those
`decisions, but the fact that they approved of the
`placement of the Monument in Munn Park does not
`
`
`
`11
`
`
`endow them with personal constitutional rights in
`the Monument, let alone the right to dictate its
`placement.
`
`
`Petitioners have argued that the Confederate
`Monument constituted a
`limited public
`forum,
`erected to perpetuate the viewpoint of the UDC and
`likeminded citizens.
` Petitioners therefore have
`claimed that moving the Monument from one public
`park to another has rendered their speech ineffective
`because it eliminated their public podium. But in
`Summum this Court rejected the application of the
`public forum principles Petitioners attempt to invoke
`here with respect to the Monument. “[A]s a general
`matter, forum analysis simply does not apply to the
`installation of permanent monuments on public
`property.” 555 U.S. at 480.
`
`And most importantly, Petitioners have made
`no allegation that the City prevented them from
`speaking at Munn Park, where the Confederate
`Monument was located, at Veterans Park, where it
`now sits, or at any other City park or public place.
`Instead, Petitioners’ free speech and due process
`claims are premised upon their preference that the
`Monument remain in Munn Park. According to
`Petitioners,
`the Monument’s
`relocation alone
`infringed upon their free speech rights.
`
`
`But these allegations fail to articulate the
`deprivation of any constitutional right. Relocating
`the Monument does not prevent Petitioners from
`saying (nor does it compel Petitioners to say)
`anything. Petitioners may continue to exercise their
`speech rights at Munn Park, the same space they
`
`
`
`12
`
`
`allegedly used prior to the move. And they also may
`go to Veteran’s Park where the Monument now sits—
`or any other park—to express their free speech
`rights. Moving the Monument did not hinder
`Petitioners’ speech in any way.
`
`Petitioners have suffered no injury to their
`free speech rights because the Monument, including
`decisions
`regarding
`its
`location,
`constitute
`government speech:
`
`When government speaks, it is not
`barred by the Free Speech Clause from
`determining the content of what it says.
`That freedom in part reflects the fact
`that it is a democratic electoral process
`that first and foremost provides a check
`on
`government
`speech.
`Thus,
`government
`statements
`(and
`government actions and programs that
`take the form of speech) do not normally
`trigger the First Amendment rules
`designed to protect the marketplace of
`ideas. Instead, the Free Speech Clause
`helps produce informed opinions among
`members of the public, who are then
`able to
`influence the choices of a
`government that, through words and
`deeds, will reflect its electoral mandate.
`
`
`Walker, 135 S.Ct. at 2245-2246 (internal quotation
`marks and citations omitted).
`
`
`The same is true here. When the Monument
`first
`installed
`in Munn Park, the City
`
`was
`
`
`
`13
`
`
`Commission spoke in support of a memorial to dead
`Confederate soldiers at a time when, according to
`Petitioners’ own allegations, many veterans of the
`Civil War were living in the Lakeland area. But the
`government speech doctrine gives the City the choice
`to determine the content of its speech, including the
`choice to change the content in response to the
`concerns of its constituents. That happened here in
`2017 and 2018 when numerous citizens voiced their
`concern that the Monument served to glorify the
`cause of the Confederacy. Under the government
`speech doctrine, the City had the choice to determine
`it no longer wanted to display the Monument in the
`City’s central public park.
`
`II. American Legion did not create free speech
`rights in public monuments.
`
`Petitioners argue that because the Confederate
`Monument was installed in 1909, it is a “legacy”
`monument and thus, that the City should be forced to
`maintain it in perpetuity. Not only is that contrary
`to the government speech doctrine, but the case
`Petitioners rely upon, American Legion v. American
`Humanist Ass’n, 139 S. Ct. 2067, 204 L. Ed. 2d 452
`(2019), provides no support for this position.
`
`American Legion concerned an Establishment
`Clause challenge to the maintenance of a cross on
`public property. Petitioners acknowledge as much,
`but completely ignore the significant distinction
`between the legal challenge in that case and the
`claims Petitioners promote here. In American Legion
`the plaintiffs sought the removal of a large cross
`erected on public property as a monument to area
`
`
`
`14
`
`
`soldiers who lost their lives during World War I. 139
`S. Ct. at 2074. The plaintiffs asserted the cross’s
`presence on public land and the use of public funds to
`maintain it violated the Establishment Clause. Id.
`
`The American Legion plaintiffs challenged the
`city’s authority to maintain a religious symbol on
`public property as unconstitutionally “respecting an
`establishment of religion.” Petitioners, however,
`challenge the City Commission’s decision to relocate
`the Confederate Monument to Veterans Park as a
`violation of their
`free speech rights.
` These
`challenges not only concern different clauses of the
`First Amendment, but different
`limitations on
`government action.
`
`The Establishment Clause acts as a limitation
`on government speech. “By its terms that Clause
`applies only to the words and acts of government.”
`Capitol Square Review & Advisory Board v. Pinette,
`115 S. Ct. 2440, 2447-48, 2449 (1995) (plurality
`opinion) (observing that where the Court has “tested
`for endorsement of religion, the subject of the test
`was either expression by the government itself, . . . or
`else government action alleged to discriminate in
`favor
`of
`private
`religious
`expression
`or
`activity.”)(emphasis in original). The Free Speech
`Clause, on the other hand, “restricts government
`regulation of private speech.” Summum, 555 U.S. at
`467.
`
`
`Petitioners do not claim that the City’s
`decision to relocate the Monument constitutes an
`establishment of religion, nor could they. Besides, as
`the Eleventh Circuit observed, in Establishment
`
`
`
`15
`
`
`Clause cases, the plaintiffs typically are requesting
`the removal of an offending display, and here,
`Petitioners sought to enjoin the City from moving the
`Monument on the ground that doing so violated their
`free speech rights.
`
`Throughout their Petition, Petitioners conflate
`
`the Free Speech Clause and the Establishment
`Clause, twisting American Legion into a mandate
`that would require the City not only to maintain the
`Monument, but to locate it in Petitioners’ preferred
`park (Munn Park) in perpetuity. But nothing in
`American Legion requires a municipality to maintain
`any monument in perpetuity, let alone prevent a city
`from moving the statue from one public park to
`another. American Legion does not require or even
`hint at the outcome Petitioners propose here, nor
`does American Legion conflict with Summum or
`Walker, or compel this Court to reconsider these
`cases.
`
`At the core of Petitioners’ argument in their
`
`brief is a misunderstanding of the Establishment
`Clause, which is a limitation on government speech.
`American Legion, as Petitioners note, provides that
`with established monuments “[t]he passage of time
`gives
`rise
`to
`a
`strong
`presumption
`of
`constitutionality.” 139 S. Ct. at 2085. But American
`Legion did not create an individual right under the
`Free Speech Clause to compel governments to
`maintain monuments on public lands simply because
`some constituents support a meaning they ascribe to
`these structures.
`
`
`
`
`16
`
`
`Petitioners’ position is simply untenable as
`
`this Court recognized in both Summum and Walker.
`In Summum, the Court explained that requiring the
`government, under public forum principles, to erect
`monuments on “both sides” of an issue simply is not
`workable. 555 U.S. at 480. “The obvious truth of the
`matter is that if public parks were considered to be
`traditional public forums for the purpose of erecting
`privately donated monuments, most parks would
`have little choice but to refuse all such donations.” Id.
`
`And as government speech, it is permissible
`
`for governments, such as the City Commission here,
`to promote a message it believes important to its
`constituents:
`
`
`Were the Free Speech Clause interpreted
`otherwise, government would not work. How
`could a city government create a successful
`recycling program if officials, when writing
`householders asking them to recycle cans and
`bottles, had to include in the letter a long plea
`from the
`local trash disposal enterprise
`demanding the contrary? How could a state
`government effectively develop programs
`designed
`to
`encourage
`and
`provide
`vaccinations, if officials also had to voice the
`perspective of those who oppose this type of
`immunization? It is not easy to imagine how
`government could function if it lacked the
`freedom to select the messages it wishes to
`convey.
`
`
`Walker, 135 S.Ct. at 2245-2246 (internal quotation
`marks and citations omitted); see also Johanns v.
`
`
`
`17
`
`
`Livestock Mktg. Ass'n, 544 U.S. 550, 559
`(2005)(noting that “some government programs
`involve, or entirely consist of, advocating a position”).
`
`“[W]hen the State is the speaker, . . .it is
`
`entitled to say what it wishes.” Rosenberger v. Rector
`& Visitors of the Univ. of Va., 515 U.S. 819, 833
`(1995). But the mere fact that the Free Speech
`Clause does not limit the government’s speech does
`not
`leave dissenting citizens without recourse.
`Government officials are
`“accountable
`to
`the
`electorate and the political process for its advocacy.”
`Bd. of Regents of Univ. of Wisconsin Sys. v.
`Southworth, 529 U.S. 217, 235 (2000). So “[i]f the
`citizenry objects, newly elected officials later could
`espouse some different or contrary position.” Id.
`That is what happened here. Citizens spoke in 1908
`and the City acted by erecting the Monument in
`Munn Park. More than a century later, the citizens
`of Lakeland spoke again on the subject Monument,
`and the City acted accordingly by relocating the
`Monument in response to citizen concerns. The
`government speech doctrine grants the City the
`flexibility
`to
`change
`its messaging without
`implicating the Free Speech Clause. Recourse
`against government messaging lies at the ballot box,
`not the courts.
`
`
`CONCLUSION
`
`the
`to dictate what
`Petitioners want
`
`government says through its monuments, and while
`such speech is limited in some instances by the
`Establishment Clause, the Free Speech Clause does
`not compel the government to convey Petitioners’
`
`
`
`18
`
`
`the very relief
`is
`preferred message, which
`Petitioners seek in their Petition. For these reasons,
`the Petition should be denied.
`
`
`Respectfully submitted,
`
`JACK REITER
` Counsel of Record
`KRISTIE HATCHER-BOLIN
`MARK N. MILLER
`GRAYROBINSON, P.A.
`One Lake Morton Drive
`Lakeland, FL 33801
`(863) 284-2200
`Jack.reiter@gray-robinson.com
`Kristie.hatcher-bolin@gray-robinson.com
`Mark.miller@gray-robinson.com
`
`
`
`
`
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