Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 29 (1995)

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Cite as: 515 U. S. 753 (1995)

Opinion of O'Connor, J.

Capitol Square is owned by the State, and that the large building nearby is the seat of state government. See post, at 792-793 (Souter, J., concurring in part and concurring in judgment); post, at 806 (Stevens, J., dissenting). In my view, our hypothetical observer also should know the general history of the place in which the cross is displayed. Indeed, the fact that Capitol Square is a public park that has been used over time by private speakers of various types is as much a part of the display's context as its proximity to the Ohio Statehouse. Cf. Allegheny, supra, at 600, n. 50 (noting that "[t]he Grand Staircase does not appear to be the kind of location in which all were free to place their displays for weeks at a time"). This approach does not require us to assume an " 'ultrareasonable observer' who understands the vagaries of this Court's First Amendment jurisprudence," post, at 807 (Stevens, J., dissenting). An informed member of the community will know how the public space in question has been used in the past—and it is that fact, not that the space may meet the legal definition of a public forum, which is relevant to the endorsement inquiry.

Justice Stevens' property-based argument fails to give sufficient weight to the fact that the cross at issue here was displayed in a forum traditionally open to the public. "The very fact that a sign is installed on public property," his dissent suggests, "implies official recognition and reinforcement of its message." Post, at 801. While this may be the case where a government building and its immediate curtilage are involved, it is not necessarily so with respect to those "places which by long tradition or by government fiat have been devoted to assembly and debate, . . . [particularly] streets and parks which 'have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.' " Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45 (1983) (quoting Hague v. Committee for Industrial Organization, 307

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