As we start to approach the "holiday season" (which now officially begins in August according to Hallmark and Wal-Mart), government officials may begin to make plans for seasonal decorations on public property, including Christmas trees, menorahs and other traditional holiday symbols. In the course of making these plans you may have a local resident or community organization apply to erect their own, private, holiday display either alongside or separately from the community’s. Uh oh, alarm bells are ringing in your head – have I just stepped into Constitutional quicksand? Do I have to permit the private holiday display? Should I remove the government-sponsored display? What do I have to do to avoid getting sued, or to win a potential claim?
The questions presented by this issue affect two parts of the First Amendment, the freedom of religion and the establishment clause. If the government denies a private party the opportunity to display religious-oriented symbols has it engaged in an unconstitutional, content-based regulation of religious speech? If the government selectively chooses to display the symbols of only one holiday has it violated the establishment clause, which protects against the government conditioning the receipt or exercise of rights, privileges or benefits on the practice of or affiliation with a particular religion? This article will briefly explain the applicable rules.
The Supreme Court and the Seventh Circuit each have found that publicly-funded holiday displays, unrelated to the provision of any other public service, are not a violation of the establishment clause. For nearly 30 years judicial decisions have held that the publicly-sponsored display of holiday symbols is not necessarily the endorsement of a particular religion or any religion. Rather, this is recognized as "governmental speech." This is not to say it cannot be used as evidence of an unlawful preference when viewed in the totality of the circumstances. Therefore, officers should exercise their discretion with care.
The Government Speech Doctrine acknowledges the ability for governmental entities to make content-based choices and to engage in viewpoint-based funding decisions. The doctrine stands for the principle that when the government itself speaks, rather than making a forum available for private speech, it is constitutionally entitled to make content-based choices. As a result, public holiday displays are permitted where there is no evidence that private sponsors exercised any editorial control and the government bears the ultimate responsibility for the content of the display.
Whether or not the government may restrict a resident from also displaying a private holiday display on public property is a separate question. For this purpose, the courts have identified a three-step framework for analyzing restrictions on private speech on government property, including: 1) whether the speech is protected by the First Amendment; 2) identifying the Government’s ability to limit access based on the nature of the public or non-public forum; and 3) whether justifications for exclusion from the relevant forum satisfy the requisite standard.
In the case of religious displays, the type of expression being exercised is clearly protected by the First Amendment. The protection of political and religious speech strikes at the core of the protections guaranteed by the First Amendment. However, the second two steps in the analysis largely turn on whether the property where the display is erected is considered a traditional public forum.
A traditional public forum, such as a street or a park, is property that by long tradition or by government fiat has been devoted to assembly and debate. A designated, or limited, public forum, in contrast, is a forum created by the government, not through inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for communicative conduct. Courts look to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.
In both a traditional and a designated public forum, reasonable time, place and manner regulations are permissible, but any content-based prohibition is permissible only if it is necessary to serve a compelling state interest and is drawn narrowly to achieve that interest. This standard places a great burden on the government to justify its regulation. In nonpublic forums the government may restrict access to such forums so long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view. This test is much more deferential to a governing body’s legislative decisions.
Based on the foregoing reasoning, the ability for the government to restrict private holiday displays on public property depends on whether the location of the proposed display is a traditional public forum. If so, the government may only enforce content neutral restrictions. The types of permitted conditions include size, duration, registration, and insurance, so long as the application of such rules does not necessarily result in more favorable treatment for any particular point of view. The availability of space for private displays may be limited on a first-come, first-serve basis. Finally, the rules may ensure that the principal purpose of the public property is protected (e.g. limitation of displays interfering with a bike path traversing a community park).
In contrast, a citizen may not demand permission to place a holiday display on any parcel of public property, especially if the location is not a public forum. For example, property owned and used for the operation of public utilities may not be a public forum unless the government has expressly created an area for expressive conduct or communication. In this case, the government may deny the resident the opportunity to erect a private holiday display.
Moving forward, it is important to take an inventory of the public property owned or controlled by the public body to determine which parcels may be considered a traditional or designated public forum. In addition, the establishment of content neutral rules in advance will help you be prepared for when a resident makes the request. It is much more difficult to deny or limit private displays when the decision is made on an ad hoc basis or if the rules are put in place after the application has been filed.
Authored by Adam Simon. Initially published in Ancel Glink's
Local Government News (Fall 2013)
