Monumetos públicos e a liberdade de expressão nos Estados Unidos

Prof. Farlei Martins envia para ser postada a seguinte noticia do jornal "New York Times" publicada em 26 de fevereiro de 2009.
Justices Rule Sect Cannot Force Placing of Monument
WASHINGTON — The Supreme Court ruled unanimously on Wednesday, in one of the
most closely watched free speech decisions in years, that a tiny religious
sect could not force a Utah city to let it erect a monument to its faith in
a public park.

The fact that there is already a Ten Commandments monument in the park in
Pleasant Grove City does not mean that city officials must also allow the
religious group called Summum to place a monument there to the Seven
Aphorisms of its faith, the justices ruled.

“We think it is fair to say that throughout our nation’s history, the
general government practice with respect to donated monuments has been one
of selective receptivity,” and properly so, Justice Samuel A. Alito Jr.
wrote for the court.

The case has been of keen interest to local and state officials across the
country, as reflected in the fact that more than 20 cities and states, along
with the federal government, sided with Pleasant Grove City in the matter.
Not least among the officials’ concerns is what kinds of markers and
monuments, if any, they might be forced to allow in public areas if Summum
prevailed.

And while the case of Pleasant Grove City v. Summum, No. 07-665, involves
religion, the real issue was free speech, not the separation of church and
state, both of which are addressed in the First Amendment to the
Constitution.

The Summum group has contended that the Pleasant Grove City officials were
no more entitled to discriminate among private monuments donated to a public
park than they were entitled to forbid speeches and leaflets advocating
viewpoints that they found unpalatable.

But Justice Samuel A. Alito Jr., writing for the court, said the arguments
embraced by Summum were not really the right way to look at the case. The
core issue is not private speech in a public forum but, rather, the power of
government to express itself, in this case by selecting which monuments to
have in a public park, Justice Alito wrote.

“The Free Speech Clause restricts government regulation of private speech,”
Justice Alito noted. “It does not regulate government speech.”

While a government entity is quite limited in its ability to regulate or
restrict private speech in traditional public forums, like parks, the
government entity “is entitled to say what it wishes,” Justice Alito wrote,
citing earlier Supreme Court rulings. If the people do not like what their
government officials say or stand for, they can vote them out of office, he
wrote.

Not that government, through its officials, can say whatever it wants
whenever it wants, Justice Alito observed. For one thing, government
expressions must not violate the First Amendment’s ban on endorsement of a
particular religion. Moreover, what government officials say may be limited
“by law, regulation, or practice.”

“And of course, a government entity is ultimately ‘accountable to the
electorate and the political process for its advocacy,’ ” Justice Alito
wrote, quoting from an earlier Supreme Court decision.

Justice Stephen G. Breyer emphasized in a concurring opinion that, while the
Summum members have been thwarted in their bid to have a monument erected,
“the city has not closed off its parks to speech; no one claims that the
city prevents Summum’s members from engaging in speech in a form more
transient that a permanent monument.” In other words, Summum members, like
other citizens, can presumably hand out leaflets or stand on soapboxes and
hold forth on the issues of the day.

The small park where the sect wanted its monument placed has a dozen or so
monuments donated by private groups or individuals. Besides the Ten
Commandments monument, they include an historic granary and the city’s first
fire station, a wishing well and other displays reflecting the history of
the area.

In its ruling on Wednesday, the high court overturned a decision by the
United States Court of Appeals for the 10th Circuit, which had sided with
Summum and told the city to allow the group’s monument to be erected at
once.

The Summum group was founded in 1975, and contains elements of Egyptian
faiths and Gnostic Christianity. The word Summum derives from Latin, and
refers to the sum of all creation. It seems clear from the history of the
court case that not all the group’s aphorisms resonate with the descendants
of Mormon pioneers. (“Nothing rests; everything moves; everything vibrates,”
one aphorism reads.)

The issues raised by the Summum lawsuit have been of interest to legal
scholars as well as government officials. “No prior decision of this court
has addressed the application of the Free Speech Clause to a government
entity’s acceptance of privately donated, permanent monuments for
installation in a public park,” Justice Alito noted.