Excluding Religious Speakers and "Holiday Tree"

[A.E. Brownstein]

Let's leave the criticism of the mayor issue aside for the moment because
there may be implied structural constraints that limit government speech in
favor of particular officeholders or candidates.

If the government is not independently constrained from communicating the
particular message in question, I think it has unfettered discretion to say
whatever it wants to say and only what it wants to say. I think the
government performs an indispensable editorial function whenever it speaks.
It decides what it wants to say. If private parties are invited to assist
the government in communicating that message, government performs an
indispensable editorial function in deciding which private speech is
helpful and which is not. I think the opinion in Forbes supports this
analysis even if the holding is more limited. Kennedy says the choice of a
commencement speaker or the choice of speakers in a government speakers
series should be immune from claims of viewpoint discrimination. I don't
see why the choice of physical ornaments in a government display is
intrinsically different.

I think the government could erect a family values display to express the
government's position on family values issues. Only messages consistent
with those family values would be permitted. A message supporting gay
rights could be rejected. Do you disagree, Michael? I would oppose that
choice, but I think it is constitutionally permissible under current
authority. I don't think the constitution inhibits the government from
speaking through private parties. I'm not sure that I see why the holiday
tree is necessarily any different except that it has a different name and
purpose. It is still a government expressive display. At least it could be
a government expressive display. The government certainly has the choice to
make a holiday tree that operates as a designated public forum. But I think
it also has the choice to make a holiday tree that constitutes government
speech.

There are various factors that might make it easier to conclude that the
expressive activity is government speech for constitutional purposes and
others which might mitigate against such a finding. The government may have
to be clear about the expression being government speech to avoid confusion
about who is responsible for the message or messages. There may be monopoly
situations that raise special problems. In some cases, the government may
allow so many diverse and inconsistent views to be expressed that the
private messages can not be understood to be government speech because the
government would be saying directly contradictory things at the same time.
There may be other factors to consider too. I don't want to suggest that
this is an easy issue. It isn't.

As for the ACLU, I don't know what they would say. It probably depends on
which chapter one asks. They haven't always been consistent on these
issues.  But to be fair, I probably haven't always been consistent on these
issues either. My thoughts on issues like these are still a work in progress.

Alan Brownstein
UC Davis


At 11:44 AM 10/03/2001 -0600, you wrote:
>I have a question for Alan. Suppose someone prepared a secular message that
>is unwelcome to the government, such as criticism of the mayor, or support
>for gay rights. Is it your assumption that the government would be free to
>reject it? Do you think the ACLU would agree? In order for the messages to
>be "government speech," doesn't the government have to be able to exercise
>essentially unfettered discretion to accept or reject messages? (I don't
>think Forbes is entirely on-point; it is a difficult case, but I think it
>represents a separate analytical category when the government is performing
>an indispensable editorial function, which is not true of the holiday tree.)
>
>
>Michael W. McConnell
>University of Utah College of Law
>332 S. 1400 East Room 102
>Salt Lake City, UT 84112
>
>
> > -----Original Message-----
> > From: A.E. Brownstein [mailto:aebrownstein at UCDAVIS.EDU]
> > Sent: Wednesday, October 03, 2001 10:50 AM
> > To: RELIGIONLAW at listserv.ucla.edu
> > Subject: Re: Excluding Religious Speakers and "Holiday Tree"
> >
> >
> > Rick asks a very good but very hard question. How do we draw the line
> > between government speech and designated forums. I don't
> > think the case law
> > gives us a very clear answer, but I can suggest two factors
> > that I think
> > are very relevant although they may not  always be
> > controlling. 1. When the
> > government property in question is being used for expressive
> > purposes, it
> > is easier for the government to argue that the speech it
> > allows on public
> > property is government speech (or to put it another way -- that the
> > editorial discretion government exercises in deciding which
> > speech to allow
> > is itself communicative in nature.) The Supreme Court's
> > opinion in Forbes
> > suggests this factor as does Judge Posner in Chicago Acorn,
> > SEIU Local No.
> > 880 v. Metropolitan Pier and Exposition Authority, 150 F. 3d
> > 695 (7th Cir.
> > 1998). 2. When there is an imprimatur of government approval or
> > endorsement, there is a stronger case that the  expressive
> > activity should
> > be construed to be government speech. See Hazelwood.
> >
> > Here I think the holiday tree display is expressive in nature. Empty
> > classrooms after school ends are just vacant government
> > property that are
> > not being used for state expressive purposes.
> >
> > Let me ask a different question, Rick. Isn't there a problem
> > if we construe
> > the holiday tree to be a designated public forum? This isn't
> > a very neutral
> > symbol. The tree is strongly associated with a religious
> > holiday and that
> > association is furthered if religious symbols adorn it.
> > While the state
> > may declare that this forum is formally open to the expression of
> > non-Christians, many devout Jews, Moslems, and members of other faiths
> > would not hang ornaments on the tree. Should the state be sponsoring
> > designated public forums associated with particular religious
> > holidays? And
> > if the state can do that, isn't there some obligation to
> > create comparable
> > designated public forums associated with the religious
> > holidays of other
> > faiths.
> >
> > When my children were younger they enjoyed crafting religious holiday
> > symbols and would have been thrilled to have them publicly
> > displayed. A
> > state holiday sukkah would be nice, for example. It is not an overtly
> > religious symbol and there is plenty of room to hang symbols.
> >
> > If as you suggested in your earlier post, not allowing
> > religious ornaments
> > on a holiday tree demonstrates official hostility toward religion and
> > suggests that religious citizens are not regarded as valued
> > members of the
> > Wisconsin community, would you agree that by allowing
> > religious ornaments
> > on a holiday tree but not creating comparable designated
> > forums associated
> > with the religious holidays of other faiths, the state demonstrates
> > official hostility toward non-Christians and regards them as less than
> > valued members of the community. Would you also agree that
> > this status harm
> > is constitutionally cognizable?
> >
> > Alan Brownstein
> > UC Davis
> >
> >
> >
> > At 12:31 PM 10/02/2001 -0700, you wrote:
> > >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
> > > > > >
> > > > > >
> > > > __________________________________________________
> > > > > > Do You Yahoo!?
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> > > > > >
> > > > > >
> > >
> > >
> > >=====
> > >"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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