Excluding Religious Speakers and "Holiday Tree"

[Rick Duncan]

Alan has a good point here. *If* we view this as a
pure *government speech* case, then the equal access
cases would not apply and the program is
constitutional. But by inviting citizens to
participate in decorating the tree it seems to me that
the state of Wisconsin has created some kind of forum
for private expressive involvement.

Can the government get around Good News simply by
putting up a sign saying "we adopt the speech of the
Boy Scouts and Girl Scouts and other groups we permit
to meet on campus as our own speech, therefore our
decision not to adopt the speech of the Good News Club
as our own is permissible under the government speech
doctrine." Is it really so easy to avoid the Court's
equal access rules?

Cheers, Rick Duncan

--- "A.E. Brownstein" <aebrownstein at UCDAVIS.EDU>
wrote:
> 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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> > > Listen to your Yahoo! Mail messages from any
> phone.
> > > http://phone.yahoo.com
> > >
> > >


=====
"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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