In 1994, the City of Santa Monica banned unattended displays in all its parks. That ordinance was later amended to include an exception for "winter displays.” After it was flooded with requests for winter displays and there wasn’t enough space in the park to accommodate all of the applications, the City implemented a lottery system to divvy up the display space. As a result of the lottery, most of the spaces were used for atheist group displays, and the City decided to go back to its original policy of banning all unattended displays.
After the City adopted the ban, the Santa Monica Nativity Scenes Committee sued, claiming the ban violated its right to free speech by amounting to a prohibited "heckler's veto." The district court disagreed, and dismissed the Committee’s lawsuit. On appeal, the Ninth Circuit Court of Appeals upheld the ban, finding that the heckler's veto doctrine was inapplicable and the ordinance was a content-neutral time, place, and manner restriction that was narrowly-tailored to its legitimate purpose and left open alternative channels of communication. Santa Monica Nativity Scenes Committee v. City of Santa Monica, No. 13-55011 (9th Cir. Apr. 30, 2015).
First, the Court held that the Committee's claim might have had merit if the city had banned all religious displays based on the atheists’ complaints, but it did not do so. The Court also evaluated whether the regulation was a neutral time, place, and manner restriction. The important government interests were protecting the park for aesthetic purposes and conserving the government's resources. The Court also found the ordinance was narrowly tailored, and that it left open alternative channels of communication, including that the Committee could "erect its unattended nativity scenes on private property, and it [could] speak in many other ways in Palisades Park, including erecting one-day, attended displays, leafleting, preaching, holding signs, and caroling."
Post Authored by Julie Tappendorf