Of course. If it is Govt speech, no public forum issue. If the display touches
on religion, it may or may not violate the EC. The Court has come down on both
sides of the EC issue in passive display cases, and the current personnel on
the Court may be on the side of permitting most passive religious displays.
We all agree on that.
But there may be cases where the Govt permits a group preferential access
without wishing (or intending) to adopt its display as the Govt's own speech.
It is just an influential local group--the local VFW, the local NAACP, the
local Planned Parenthood in some communities--that requests access, and the
Govt says "go ahead, put up your display."
In these cases, it makes a big difference whether the forum is a designated
public forum or a nonpublic forum. If it is a nonpublic forum, those wishing to
force access will lose unless they can demonstrate viewpoint discrimination.
And it is not difficult to draft a nonpublic forum policy that would allow the
Govt to exclude outside groups, such as the Satanists, from forcing their way
into the forum for local groups. Indeed, every public law school in the country
has a forum for student groups that excludes non-student groups. Insiders are
in and outsiders are out.
Indeed, in passive religious display cases, the Govt's strongest position is to
argue that it is a Govt display and it is permissible under Van Orden. It is
usually those trying to remove the display who argue public forum hoping to
force the Govt to either remove the Ten C display or permit a Satanic display.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
My recent article, Just Another Brick in the Wall: The Establishment Clause as
a Heckler's Veto, is available at SSRN
"And against the constitution I have never raised a storm,It's the scoundrels
who've corrupted it that I want to reform" --Dick Gaughan (from the song,
Thomas Muir of Huntershill)
________________________________
From: "Volokh, Eugene" <vol...@law.ucla.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; Alan
Brownstein <aebrownst...@ucdavis.edu>
Sent: Friday, December 13, 2013 8:36 PM
Subject: RE: Satanists want statue beside Ten Commandments
monument at Oklahoma Legislature
I’m not Alan, but I would think that a county can certainly
allow the MLK display and label it government speech, without being required to
accept other displays from Satanists, Klansmen, or anyone else.
The complicating factor is that, when a county allows religious
monuments, it may be inclined not to label them government speech (since so
labeling them might trigger Establishment Clause objections). That’s why we’ve
got a potentially live free speech issue here, I think.
Eugene
From:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Friday, December 13, 2013 6:23 PM
To: Alan Brownstein; Law & Religion issues for Law Academics
Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma
Legislature
I have a question for Alan. Suppose a county courthouse allows a private group,
say the NAACP, preferential access to put up a display celebrating the life of
MLK. Must the county now allow the Satanist group access to this non-public
forum to put up a display celebrating the life of Satan? Access to the local
chapter of the KKK to put up a display disparaging MLK? Access to a Christian
group to put up a Nativity Display?
Or must the county deny the NAACP's access in order to avoid opening up the
courthouse to other private groups, including groups who show up merely for the
purpose of forcing the county to silence the NAACP?
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
My recent article, Just Another Brick in the Wall: The Establishment Clause as
a Heckler's Veto, is available at SSRN
"And against the constitution I have never raised a storm,It's the scoundrels
who've corrupted it that I want to reform" --Dick Gaughan (from the song,
Thomas Muir of Huntershill)
________________________________
From:Alan Brownstein <aebrownst...@ucdavis.edu>
To: Rick Duncan <nebraskalawp...@yahoo.com>; Law & Religion issues for Law
Academics <religionlaw@lists.ucla.edu>
Sent: Friday, December 13, 2013 4:32 PM
Subject: RE: Satanists want statue beside Ten Commandments monument at Oklahoma
Legislature
Wow! Allowing local groups with longstanding ties to the community preferential
access to non-public forums (or denying access or providing less favorable
access to outside groups or local groups without longstanding ties to the
community.) What a great way to mask viewpoint discrimination and not only to
promote and preserve religious hierarchy but also to entrench the current
political power structure of the community at the same time.
I hope the communities that adopt this policy are up-front about it in the
literature describing their areas. First they should list all of the public
property to which this policy of preferential access should apply -- which, of
course, will be most of the public property in the town other than streets and
parks: interior sidewalks, the lobby of government office buildings, bus
terminals, train stations and airports, government workplace charity drives
etc. Next they should list all of the religious, ethnic, and political groups
they consider to be either outsiders or lacking longstanding ties to the
community. If they are going to treat new residents or visitors as second class
citizens they ought to at least let them know ahead of time.
Alan
________________________________
From:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on
behalf of Rick Duncan [nebraskalawp...@yahoo.com]
Sent: Thursday, December 12, 2013 8:53 AM
To: Douglas Laycock; 'Law & Religion issues for Law Academics'
Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma
Legislature
Doug is absolutely correct here.
The Govt wins if this is government speech and the Ten C display does not
violate the EC, either because a majority decides the endorsement test does not
apply or, if it does apply, the display does not amount to an endorsement of
religion (perhaps a majority may conclude that the purpose and effect do not
endorse religion, but merely recognize the historical significance of the Ten
Commandments in the local community).
If this is some kind of forum for private speech--even if it is a non-public
forum--Pl wins if this amounts to viewpoint discrimination. But if it is a
non-public forum, and the restriction amounts to content or speaker but not
viewpoint discrimination, the Govt will win if the content or speaker exclusion
is reasonable. So a policy that allows local groups with longstanding ties to
the community preferential access, if used to exclude an outside group with
minimal ties to the community, may be permissible in a non-public forum.
I think this is correct. No?
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
My recent article, Just Another Brick in the Wall: The Establishment Clause as
a Heckler's Veto, is available at SSRN
"And against the constitution I have never raised a storm,It's the scoundrels
who've corrupted it that I want to reform" --Dick Gaughan (from the song,
Thomas Muir of Huntershill)
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