robertmw at MINDSPRING.COM
Thu Dec 11 18:09:17 PST 1997
At 04:52 PM 12/11/97 EST, Jim Henderson wrote:
>In a message dated 97-12-11 14:52:33 EST, Art Spitzer wrote:
><< He assures me that Independence Hall is *not* a public forum, and that if,
>contrary to his expectation, the creche is displayed inside Independence
>he will be in court before the day is out. >>
>Well, it may be a public forum now (assuming the creche display is
>Governments can create a forum by their practices, after all. Although it
>appears not to be the case now, what would the argument be that would result
>in the creche being removed, if the creche is just the first instance of the
>public's use of a newly designated forum.
This illustrates the need for federal, state and local governments to have
clearly defined rules about public access to its public fora. *If*
Independence Hall intends to convert what was not a traditional public
forum into one, it should do so publicly, presumably in compliance with the
Administrative Procedures Act, or its local equivalent.
By announcing the rules with respect to what is reasonable time, place and
manner restrictions in advance the government can pretermit debate on this
aspect of the case.
> Also, how comfortable is the free
>speech component of the ACLU with the notion of attacking a private creche
>(because of its religious content) in a public forum.
Engaging in public forum analysis automatically means it becomes a free
speech issue, not an establishment clause issue. The question assumes too
much by presuming in advance that the ACLU's objection to an establishment
clause violation (proved by the fact that it is *not* a traditional public
forum, and that therefore free speech analysis does not apply) will become
content-based discrimination when applied to the free speech analysis when
new rules are announced and it *does* become public.
* * * * * * * * * * * * *
Rob Weinberg, Montgomery, AL
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