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Capitol
Square Review and Advisory Bd. v. Pinette,
515 U.S. 753 (1995)
Author: Sam Biers
Facts: The 10 acre plaza
surrounding the Capital building has been used for both secular and religious
public gatherings. Capital Bd has allowed unattended displays at X-mas, Hannaka,
and other events. It then issued a ban against unattended, but reversed it and
authorized X-mas tree and Menorah. On the very day permission was granted to
display the Menorah, KKK filed an application to place a large cross on the
square. That request was denied.
Issue(s):
Whether OH violated the Est Cl by permitting a private party to display an
unattended religious symbol in a traditional public forum adjacent to the seat
of Govt, when OH had a religion neutral policy?
Holding:
Religious expression/speech does not violate Est Cl where it 1) is purely
private; and 2) occurs in a traditional or designated public forum, publicly
announced, and open to all on equal terms. States may not ban all private
religious speech from a public forum, or discriminate against it by requiring
religious speech alone to disclaim public sponsorship.
Procedure:
OH KKK filed suit seeking an injunction to issue the permit; D. Ct issued the
injunction and Bd permitted the erection of the cross. The Bd then rec’d
multiple requests to erect crosses on the grounds. Ct of App Affirmed.
Rule(s):
1st Amend.
Rationale:
KKK free speech issue does not concern religion, it is the political content of
the display. Compliance with Est Cl is a compelling St. Int that justifies
content-based restrictions on speech. Applying Lamb and Widmar,
here the State is not sponsoring Resp’s expression, the expression was made on
Govt property that was opened to the public for speech, by an application
process that is the same for all private groups.
There really isn’t an
“endorsement test” gleened from prior decisions. It’s an odd comparison
that Govt endorses a religious display by giving it the same access as all other
displays located in public forum. Allegheny the Govt Prop was not open
to all, so Govt was favoring sectarian expression. Lynch the nativity
scene did not violate Est Cl b/c Govt did not endorse religion. Neither case
requires Govt’s neutral treatment of private religious expression as invalid.
Also,an open forum and private sponsorship which result in erroneous conclusions
do not count, and incidental benefits to religious groups are insufficient
defenses to Est Cl.
Speech
Unless Govt has encouraged a mistaken perception that private speech is Govt
speech, it is an invalid defense. If Govt gives sectarian religious speech
preferential access to a forum that would violate Est Cl and Free Sp Cl b/c it
would involve content discrimination.
Under Est Cl it only
applies to WORDS and ACTS of Govt, it was not intended to restrict purely
private religious speech incidentally linked to the State by the forum.
DISSENT: Private religious
speech should receive less protection similar to Comm Speech. Est Cl creates a
strong presumption of Govt endorsement when religious symbols are unattended on
Govt Prop
Pl’s A:
The forum’s proximity to the seat of Govt will produce the public perception
that religious symbol has the Govt’s approval-this requires application of
“endorsement” test b/c Rbl observer could mistake private expression for
official endorsement of religion–Govt content based restriction is valid.
Whenever private speech is mistaken for Govt speech, then Govt should be able to
deny private speech in a public forum.
Df’s A: (Resp) This
case is a free speech case–KKK’s right to present the message of the cross’s
display.
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