Summary of Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)
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.