Italian Sons & Daughters of America v. City of Pittsburgh, decided yesterday by the Pennsylvania Commonwealth Court (Judge Patricia A. Mccullough, joined by Judges Renée Cohn Jubelirer, Christine Fizzano Cannon, Ellen Ceisler, Lori A. Dumas, and Stacy Wallace, and with Judge Michael H. Wojcik concurring in the result), reversed a trial court's decision approving of Pittsburgh's removal of a Columbus statue from a public park. The trial court had held that the removal didn't violate the First Amendment, because monuments permanently erected in a park were "government speech," but the Commonwealth Court concluded that the removal did potentially violate state law:
Here, in its First Amended Complaint, ISDA does not challenge Mayor Peduto's or the Art Commission's actions on First Amendment grounds; nor does ISDA contest that the placement of the Statue in Schenley Park constitutes government speech that the City otherwise may regulate, change, or remove as it sees fit. Thus, ISDA does not argue that … government speech principles … are inapplicable. Rather, ISDA argues that Mayor Peduto and the Art Commission, in taking action to remove the Statue, did not comply with applicable provisions of the Charter and Code, violated ISDA's rights to due process, violated public trust principles, and breached a contract entered into between the City and ISDA's putative predecessor, the Sons of Columbus.
In issuing its decision, the trial court did not make any findings of fact and did not rule on any of Appellees' expressly pleaded preliminary objections, including the objection to ISDA's standing. Instead, the trial court broadly concluded that, because the Statue constitutes government speech, ISDA cannot, as a matter of law, plead a viable claim because the City is free to do with the Statue as it pleases, notwithstanding any local or state-wide legislation or other restrictions to the contrary … [on the view that] "Local ordinances and state laws cannot be used to restrict future government's speech rights." ….
[But a]lthough a government generally may determine those views that it will espouse by way of its own speech, it nevertheless may not do so in violation of applicable "law, regulation, or practice." … The fact that … monuments or pieces of art constitute "government speech" only protects the government from certain First Amendment challenges. It does not, as the trial court here concluded, give government "free reign" to act as it pleases in defiance of the law….
