City is free to stop allowing unattended nativity scenes â€" or 'winter holiday' displays â€" in a park

|The Volokh Conspiracy |

From today's decision of the Ninth Circuit in Santa Monica Nativity Scenes Committee v. City of Santa Monica:

No trip to Santa Monica, California, is complete without a visit to Palisades Park—a picturesque strip of land 14 blocks long that overlooks Santa Monica State Beach and the Pacific Ocean and is regarded as the "crown jewel" of the City's park system. Beginning in about 1955, every year during December, local residents erected a series of large dioramas in the Park depicting various scenes from the biblical story of Christmas. The display consisted of 14 booths, each 18 feet long and filled with life-sized mannequins and decorations. Putting up and taking down this elaborate display was a significant undertaking, and in 1983, the nonprofit Santa Monica Nativity Scenes Committee was organized to manage the yearly construction of the dioramas.

In 1994, the City prohibited the construction of unattended displays—i.e., large, multi-day installations—in its parks, but it nonetheless continued to allow the nativity scenes. Subsequently, in 2003, the City Council enacted an exception to the general prohibition on unattended displays. This "Winter Display" exception authorized unattended displays during the month of December, and only in Palisades Park. Under the "Winter Display" rule, all members of the community, not just the Committee, were permitted to put up displays, and display space was to be allocated on a first-come, first-served basis. The Winter Display system functioned without incident in its first few years of existence, during which time the only applicant who requested substantial display space was the Committee. In 2011, however, applications for Winter Display space surged. That year, a number of atheists who opposed the placement of religious displays in Palisades Park applied for Winter Display space in what the Committee alleges was a coordinated attempt to keep the space away from the Committee and other religious groups. The City used a lottery system it had created to allocate the available space, and the atheists received the majority of the display spots. The Committee and the atheists both vowed to flood the display-space lottery with even more applications in 2012.

Rather than continue the lottery system and expend the effort necessary to process all of these expected applications, the City elected to repeal the Winter Display exception and keep the Park free of all unattended displays. The Committee responded by suing the City, alleging that the repeal ordinance violated the Committee's right to free speech because it was an unconstitutional "heckler's veto." The Committee also alleged that the repeal violated the Establishment Clause by conveying the message that the City disapproved of Christianity.

Neither of these allegations constitutes a viable claim for relief under the First Amendment. The heckler's veto doctrine, which applies in situations where a particular speaker is silenced because his speech invites opposition, disorder, or violence, has no application in this case, which involves the City's generally-applicable repeal of a special exception to its policy of excluding unattended displays from its parks. The repeal was a content-neutral time, place, and manner regulation, not a heckler's veto. The Committee's Establishment Clause claim, meanwhile, is without foundation.

Sounds quite right to me. While a city must allow speech in public parks, which are treated as "traditional public forums," the Court has never held that a city must allow unattended displays. Indeed, in Capitol Square Review Bd. v. Pinette (1995), five Justices said such a ban would be constitutional, and the remaining four noted that it might be constitutional. And if attempts to allow some such unattended displays create undue controversy and administrative hassles, a city is free to forbid the unattended displays altogether.

Thanks to How Appealing for the pointer.

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