Excluding Religious Speakers and "Holiday Tree"

[A.E. Brownstein]

I'm not sure that the tree is a designated public forum. If it is the
"state holiday tree", the state could accept responsibility for the
messages communicated on it and identify them as government speech. Surely,
the state could decide to have a holiday tree without religious ornaments,
it the state used its own ornaments. I don't know that asking private
individuals to loan ornaments to the state to be part of a state display
necessarily transforms the tree into a forum for private speech.

Perhaps the state should put a disclaimer on the tree to make it clear that
the tree represents the state's celebration of the holiday, not that of the
individual donors of ornaments. If a disclaimer adequately communicates
that speech on public property is private speech and not government speech
for Establishment Clause purposes,  perhaps a disclaimer also adequately
communicates that speech on public property is government speech and not
private speech for free speech clause purposes.

Alan Brownstein
UC Davis


At 12:36 PM 10/02/2001 -0500, you wrote:
>Responding to Rick's comment that government "often attempts to exclude
>*all* religious viewppoints from various fora," we have just such a
>situation in Wisconsin.
>
>The state Dept. of Administration solicits the public to contribute
>decorations for the state "holiday tree" displayed in the capitol rotunda,
>but has issued the specific restriction, "Ornaments cannot be of a religious
>nature."
>
>It seems clear that the state has designated the tree as a forum for
>symbolic or other expression about the "holidays," but has engaged in
>viewpoint discrimination forbidden in Lamb's Chapel, Good News Club,
>Rosenberger, Cornelius, Perry Ed. Assn., etc.
>
>Since the state itself can include religious symbols in a holiday display so
>long as religion doesn't "dominate," it seems obvious that religious symbols
>donated by the public could also be included in a holiday tree display in a
>"non dominating" arrangement - and that the state violates free exercise and
>free speech when it specifically excludes them.
>
>Mike Dean
>Milwaukee, WI
>
>----- Original Message -----
>From: "Rick Duncan" <conlawprof at YAHOO.COM>
>To: <RELIGIONLAW at listserv.ucla.edu>
>Sent: Monday, October 01, 2001 10:11 AM
>Subject: Re: Religious Speakers and Non-Public Fora
>
>
> > Following up on Gary's question, would Lamb's Chapel
> > have come out differently if the rules discriminated
> > against secular speech rather than religious speech?
> > In Lamb's Chapel, the school district allowed property
> > to be used for social, civic, or recreational uses but
> > specifically stated that  the "school premises shall
> > not be used by any group for religious purposes."
> >
> > Suppose instead the school district announced that the
> > social/civic policy did not allow the "school premises
> > to be used by any group for secular purposes." Surely,
> > this policy would also violate the Free Speech Clause
> > even if the Court decided the case as a nonpublic
> > forum case. As in Lamb's Chapel, the school would be
> > involved in multiple suppression of viewpoints (all
> > religious viewpoints in Lamb's Chapel and all secular
> > viewpoinrts in the hypo). Ditto in Rosenberger if the
> > University had funded student newspapers but adopted a
> > policy withholding funds from papers that adopt
> > secular perspectives. I don't think that any case that
> > struck down a ban on all religious speech would come
> > out differently if the government had instead adopted
> > a ban on all secular speech. The free speech
> > protections would be the same, no?
> >
> > The only reason these cases don't come up is that the
> > government would never adopt a policy excluding all
> > secular speech from nonpublic fora, but it often
> > attempts to exclude *all* religious viewppoints from
> > various fora.
> >
> > Cheers, Rick Duncan
> >
> >
> > =====
> > "Do you not think an angel rides in the whirlwind and directs the storm."
> >     --President George W. Bush (quoting John Page)
> >
> > "When the Round Table is broken every man must follow Galahad or Mordred;
>middle things are gone."  -C.S. Lewis
> >
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