Claim Against School Board That Refused to Display "Satan Loves the First Amendment" Banner Can Go Forward

[1.] The factual allegations from today's decision by Robert Scola (S.D. Fla.) in Stevens v. School Bd. of Broward County:

The Plaintiff, The Reverend Dr. Timothy "Chaz" Stevens, is an ordained minister of The Church of Satanology and Perpetual Soiree. The Church "promote[s] religious plurality, secularism, and the separation of church and state through public expressions of minority viewpoints." As such, "displaying banners with messages advocating for religious freedom and First Amendment principles is a form of sacred observance, deeply and doctrinally rooted in The Church's belief that such advocacy is a moral and spiritual obligation." Displaying banners with phrases such as "Satan Loves the First Amendment" "are essential to fulfilling [the Church's] religious mission."

Between December 2023 and September 2024, the Defendant, the School Board of Broward County, Florida …, allowed religious organizations, such as Calvary Chapel and Potter's House, to display banners at West Glades Middle School, in Parkland, Florida, and Coral Springs High School, in Coral Springs, Florida, respectively. Such displays "carried religious messages and were permitted without issue." These banners were displayed despite the school board's policy "prohibit[ing] using school facilities to promote religious, commercial, or political interests without board approval and requir[ing] that signage not be 'sectarian in nature.'" Specifically, the policy states:

[F]acilities owned or leased by the School Board shall not be used for advertising or otherwise promoting the interests of any commercial, religious, political or other non-district agency or organization except as permitted through Board approved agreements, School Board policies, or State Statutes.

In October 2023, Stevens asked a high school and a middle school that they "display a 'Satan Loves the First Amendment' banner"; both refused, and removed banners for Calvary Church that had been displayed on the schools' property. The school board also "adopted a new policy that 'provide[s] better oversight' of the banner approval process by having '[a] regional superintendent [] approve requested banners,'" but the court held that "because Reverend Stevens has plausibly alleged an unofficial custom or policy of viewpoint discrimination (as the Court discusses below), the new policy does not affect the Court's analysis on the school board's motion to dismiss."

[2.] The court concluded that Stevens had adequately alleged that the school board's practices violated the Free Speech Clause:

The school board has arguably created a limited public forum at its schools by allowing some advertisements to be displayed on school grounds. "[G]overnmental entities establish limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects." … [In] a limited public forum …[,] "the government 'may impose restrictions on speech that are reasonable and viewpoint-neutral.'"

For a restriction to be viewpoint neutral, "the 'government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.'" Restrictions are reasonable when they are "wholly consistent with the government's legitimate interest in preserving the property for the use to which it is lawfully dedicated, and prohibited speech must be naturally incompatible with the purposes of the forum." …

As alleged, the school board's policy … is facially viewpoint neutral, and Reverend Stevens does not argue that such policy is unreasonable…. [But] the instances cited in the complaint plausibly allege "a practice or custom" of viewpoint discrimination by the school board ….

[3.] The court also concluded that Stevens had adequately alleged an Establishment Clause violation, given his allegations that the school has "put[] up some religious banners while declining to display his religion's banners":

The Establishment Clause "mandates government neutrality between religion and religion, and between religion and nonreligion." … [T]he Supreme Court has replaced the Lemon test [formerly used in Establishment Clause cases] with one that focuses on "historical practices and understandings." Despite its notice of supplemental authority, the school board does not attempt to show that any Establishment Clause claim by Reverend Stevens is insufficient under the Supreme Court's new Establishment Clause standard….

[4.] The court allowed Stevens' FRFRA (Florida Religious Freedom Restoration Act) claim to go forward as well:

Under the FRFRA, "a plaintiff has the burden of showing that: 1) he or she has engaged in the exercise of religion; and 2) that the government has substantially burdened this religious exercise." Only then does "the burden shift to the government to demonstrate that its action: 1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest."

Under the FRFRA, the exercise of religion means "an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious beliefs." The statute thus covers "conduct that, while not necessarily compulsory or central to a larger system of religious beliefs, nevertheless reflects some tenet, practice or custom of a larger system of religious beliefs." …

At the motion to dismiss stage, the Court must, of course, accept the allegations in the complaint as true…. Reverend Stevens alleges that the Church of Satanology "mandate[s] that members engage in public forums to promote the constitutional principles of the First Amendment," and as such "viewing public displays—such as banners—[are] vital expressions of [the Church's] religious philosophy." Moreover, "[f]or adherents, displaying banners with messages advocating for religious freedom and First Amendment principles is a form of sacred observance, deeply and doctrinally rooted in The Church's belief that such advocacy is a moral and spiritual obligation."

Therefore, Reverend Stevens has adequately alleged that he "has engaged in the exercise of religion." The school board's arguments as to the lack of evidence regarding the Church's tenets are better addressed on a motion for summary judgment or at trial, not on a motion to dismiss. And by preventing Reverend Stevens from displaying these banners, the school board has allegedly "substantially burdened this religious exercise."

In its motion, the school board only argues that Reverend Stevens cannot plead the elements of a FRFRA claim for which he has the burden. The school board's arguments as to its compelling state interest will not be considered given that they were only made in the reply and "not raised in the motion itself."

[5.] Finally, the court rejected Stevens' claim under Florida Statute § 871.04, which provides,

No person … shall publish … with reference to an establishment any advertisement that the patronage of any person is not welcome, or is objectionable, or is not acceptable because of the person's religion….

The court concluded that the statute doesn't apply here, in part because

Reverend Stevens does not allege that a banner was published on school property stating that he was not welcome because he is a member of the Church of Satanology…. The thrust of Reverend Stevens's complaint is that his church was prohibited from posting banners while other churches were allowed to do so. Those actions fall outside the ambit of § 871.04.