Merry litigation and happy attorneys' fees: holiday displays on downtown public property.

• Author: Trevarthen, Susan L.
• Position: City, County and Local Government

What types of holiday displays may a local government authorize within its public rights of way, parks, and other public properties? How are features such as downtown traffic circles treated under the governing case law?

As discussed below, local governments may erect holiday displays on their property, and those displays may include religious holiday symbols such as a creche and menorah only if they are displayed amongst secular holiday items like the Christmas tree. Furthermore, in areas deemed to be a public forum for free expression, local governments must allow private religious expression, but may prohibit persons from placing unattended displays there or adopt other policies governing how such displays will be handled (i.e., size, length of display, safety of proposed location and installation, etc.).

Relevant Constitutional Provisions

The use of local government property for government-sponsored holiday displays or for private religious expression primarily implicates the Establishment Clause and the Free Speech Clause of the First Amendment. (1) The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion...." The Free Speech Clause provides that "Congress shall make no law ... abridging the freedom of speech." (2) These provisions are made applicable to state and local governments through the 14th Amendment.

The Free Speech Clause dictates what conditions the local government may place on private expression on local government property. It prevents the government from restricting the content, and in some cases, the manner of expression of members of the public. The Establishment Clause restricts the types of holiday displays the local government may erect on local government property. (3) It prohibits government from appearing to take a position regarding adherence to any religious organization or belief. (4) The Supreme Court has explained that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." (5)

The first part of this analysis examines the conditions the local government may place on private expression on public property under the Free Speech Clause.

Analysis

* What Conditions May the Local Government Place on Private Expression in Public Rights of Way?--The local government's ability to control or limit private speech or expression is determined according to the location and context of the expression. The conditions that the local government may place on expression in a public place depend on whether that place is deemed to be a "public forum" for free expression. (6) Free speech rights are most extensive in a public forum, where governmental regulations of the content of expression are subject to "strict scrutiny" analysis, meaning that they must be narrowly drawn to serve a compelling governmental interest. (7)

Thus, in order to determine how the local government may condition the use of public property for private expression, it is necessary to determine whether the area is considered a public forum for First Amendment purposes and, if so, what kind of public forum it is. As shown below, a court would most likely determine that rights of way and parks are traditional public fora for free expression.

* How Do Courts Determine What Constitutes a Public Forum? -Courts examine the physical nature of the property as well as its historical and designated uses to determine whether a public place constitutes a public forum. The Supreme Court has identified four classifications of public property under First Amendment jurisprudence: 1) the traditional public forum, 2) the designated public forum, 3) the limited public forum, and 4) the nonpublic fora. (8)

A traditional public forum is public property, which by its very nature is the type of property that has historically been held in trust for the use of the public and has traditionally been used for purposes of assembly, communication of thoughts, and discussion of public questions. (9) The Supreme Court has identified city streets and sidewalks and public parks as quintessential examples of traditional public fora. (10) These types of property are generally considered, without further inquiry, to be public fora. (11)

Although these types of public property are almost always deemed to be traditional public fora, it is possible for them to be converted to nonpublic fora if their physical nature is altered. (12)

Conversely, the government cannot change the forum status of public property merely by declaring it to be a nonpublic forum. (13) Thus, the local government could not change public property into a nonpublic forum simply by erecting a fence around it or barring any further activity therein. The ownership or nature of the property must be changed. Moreover, in order to change its public forum status, a sale of public property must be a legitimate transfer of ownership and control. If the local government remains entwined in the management or control of the property, it remains subject to constitutional constraints. (14)

A designated public forum is public property that the government has opened for public use as a place for expressive activity, although not traditionally used for such purposes. (15) School board meeting rooms and state university meeting facilities are examples of designated public fora. (16) Unlike a traditional public forum, a designated public forum may lose its public forum status if the government removes the public forum designation. (17) However, as long as the property remains a public forum, the government is bound by the same restrictions as apply in a traditional public forum. (18)

A limited public forum is public property that the government has designated for only certain types of activities. (19) When the state establishes a limited public forum, it is not required to allow persons to engage in every type of speech and may be justified in reserving the forum for certain groups. (20) However, any restrictions must not discriminate against speech based on its viewpoint and must be reasonable in light of the purpose served by the forum. (21)

For example, a school district may allow use of its classrooms after school hours for social and civic events that promote the welfare of the community, such as Cub Scouts and YMCA activities. In this case, the constitutional right of access would only extend to events of similar character. (22) However, the government could not deny access to the property...