"With the limited resources cities have, this is one solution to solve that problem," White said.

Summum attorney Brian Barnard, however, said Tuesday's decision violates those earlier decisions and plans an appeal.

"The right to free speech is not so easily taken away by government agencies and governments playing games," Barnard said. "What they did was manipulate the facts in the hope that the judge would say, 'OK, the First Amendment is no longer implicated.' And obviously they were successful."

Summum must wait until the case is entirely resolved to file its appeal, however. Benson noted that Summum may still be entitled to monetary damages stemming from the city's behavior prior to selling the property. The group seeks $20 for injuries it allegedly suffered from the denial of its free-speech rights.

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E-mail: awelling@desnews.com