Merry Litigation and Happy Attorneys’ Fees: Holiday Displays on Downtown Public Property
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 crèche 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.
• 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 for an event of similar character based on a disagreement with the viewpoints of the group wishing to use the property. Similarly, the local government’s meetings of the governing body might be considered limited public fora, because the local government allows for general public comment on items not related to the agendas.
Thus, if the government allowed the Young Democrats to hold a meeting in a limited public forum, it would have to allow the Young Republicans to do the same. However, it could allow community organizations to use the facility while excluding investment seminars. Such selectivity by the government would be constitutionally prohibited in a traditional or designated public forum.
A nonpublic forum is any other public property that has not been traditionally used for or designated for use as a forum for expressive activity.23 For example, an elevated sidewalk extending from a U.S. Postal Service office to the public sidewalk was determined to be a nonpublic forum, as distinguished from the sidewalk adjacent to the street, which is considered a traditional public forum.24
• What Kind of Forum is a Downtown Traffic Circle, and What Conditions May the Local Government Place on Private Expression in the Traffic Circle? — Many Florida local governments are replacing intersections with traffic circles. These features are not new to transportation planning in Florida, but have been growing in popularity as a way to provide traffic calming and better traffic flow. For example, the original plan for the City of Hollywood is built around two large traffic circles on Hollywood Boulevard, with large developable parcels in the middle of those circles — one is currently the location of city hall, and the other is a major city park. The original plan for the City of Coral Gables includes traffic circles at key points. Sarasota has St. Armand’s Circle on St. Armand’s Key.
The area inside of a traffic circle has the characteristics of two of the quintessential traditional public fora: parks and city sidewalks. It is made up of the center of the traffic circle and the public green space within the landscaped medians of the surrounding streets and sidewalks. Where such a traffic circle is located in the hub of the local government’s commercial center and has consistently functioned as an open and accessible public space in which it frequently hosts public gatherings and special events, a court would likely deem it to be a traditional public forum25 and would apply the strict scrutiny analysis outlined above to any local government restriction on the public’s right of free expression in the traffic circle.
The local government probably could not demonstrate a compelling governmental interest to justify eliminating all expressive activity or all religious expression from the downtown traffic circle. Thus, as a practical matter, the local government may only enforce reasonable, content-neutral restrictions as to the time, place, or manner of private religious expression or other expression.26 Such restrictions must be tailored to serve a significant governmental interest and must leave open ample alternative means of communication.27 In contrast, small traffic circles located inside single-family residential areas that have not been used as the site of gatherings and special events may not be categorized by a court as traditional public fora.
• What Private Expression Must the Local Government Allow in the Traffic Circle? — In a public forum, such as a downtown traffic circle, there is no question that private groups, whether religious or not, may express their views and ideas.28 Just as a political party may be present to speak its message and even solicit donations, a religious group is free to speak, sing, pray, and bring in signs and symbols expressing its beliefs subject to time, place, and manner restrictions.29 However, the local government is not legally required to permit private persons or groups to place unattended displays in the traffic circle.30 If the local government does allow private holiday displays, it must do so on a nondiscriminatory, content-neutral basis. It should also provide guidelines as to what size of display is appropriate, what safety measures must be adhered to, and how long the display may remain.
Importantly, the local government may not prevent private religious expression in a public forum solely because the local government fears that members of the public will mistakenly believe that the local government sponsors the expression. Religious speech enjoys the same protection as any other speech.31 In a decision binding in Florida, a federal appellate court ruled that the state was required to permit a Jewish group to erect a menorah in a public park where the state and city did not otherwise prohibit members of the public from erecting displays, regardless of their secular or religious nature.32 The court specifically rejected the state’s argument that such a display might cause the appearance that the state endorsed a particular religion.33 The court determined that such a possibility could be remedied by a well-placed sign explaining that the state did not erect the display and does not endorse a particular religion.34
• What Restrictions Govern Local Government-sponsored Holiday Displays on Public Property? — The local government is prohibited by the Establishment Clause from taking actions that would give the appearance that it is endorsing a particular religion. Often referred to as the “separation between church and state,” this provision of the Constitution has been the subject of numerous court cases in recent years that have affected the type of displays governments may erect.
The Supreme Court, however, has been reluctant to create a “bright-line test” to state explicitly what types of government-sponsored holiday displays are permissible under the Establishment Clause.35 Instead, the Supreme Court has applied a set of criteria, known as the Lemon test, after the name of the case in which it was first applied, as the primary method for analyzing Establishment Clause claims.36
To be held constitutional under the Lemon test, a challenged governmental action must 1) have a secular purpose; 2) have as its primary effect neither the advancement nor the inhibition of religion; and 3) not create excessive government entanglement with religion.37 Challenged conduct that does not meet all three criteria will be deemed to be unconstitutional under the Establishment Clause. A challenge to a government-sponsored holiday display would be analyzed under these criteria.
• Can the Local Government Erect a Holiday Display that Includes Religious Symbols? — Although the Establishment Clause prohibits the local government from promoting or endorsing religion, it does not prevent the local government from erecting a holiday display on local government property, provided that the display is deemed to have a secular purpose. Recent Supreme Court cases have provided some guidance as to what is considered secular and what is considered religious.
The U.S. Supreme Court has ruled, for example, that a state-sponsored display of an 18-foot menorah next to a 45-foot Christmas tree, accompanied by a sign saluting liberty in front of a government building, was a secular display and, thus, not a violation of the Establishment Clause.38 Significantly, the fact that the menorah was on loan from a religious group and that the city stored and maintained it did not violate the Establishment Clause. The ownership and control of the display does not determine whether it is constitutional; the context is the key.
The Court indicated, however, that had the menorah been displayed alone or in a less secular context, it might have reached a different result. Thus, the context in which symbols are displayed helps determine whether they have a secular or religious message.39 The Allegheny Court reasoned that, since the Christmas tree is widely accepted as the preeminent secular symbol of Christmas, its presence, along with the sign delivering a secular message, gave the entire display a secular character.40 Also, in Lynch v. Donnelly, 465 U.S. 668 (1989), the Supreme Court ruled that a crèche, which was owned by the city and was part of a large holiday display including a Christmas tree, Santa Claus, and other nonreligious holiday-themed items, did not violate the Establishment Clause due to its context as one part of an overall holiday display.41
On the other hand, in the same case, the Court decided that a crèche located in the grand staircase of the county courthouse with a sign proclaiming “Glory to God in the Highest” was not secular in nature, but rather was an endorsement of the Christian religion.42 Even though the government did not own the crèche, its location in the “main” and “most beautiful” part of the county building, which was not a public forum, along with the religious nature of the sign, suggested the government’s endorsement of a religious message in violation of the Establishment Clause.43
Since the determination of whether a religious symbol such as a menorah will be considered to have a secular purpose depends on the context in which it is displayed, an otherwise secular display could potentially lose its secular status if it was used for a religious purpose, such as a religious ritual. In Allegheny, the Supreme Court intimated that, had the menorah been used for a ritual purpose, it might not have been considered a secular symbol and, thus, would not have passed constitutional scrutiny.44
Whether a display is permissible under the Establishment Clause depends on the appearance and context of the display. In Allegheny and other relevant cases, the displays of religious symbols passed constitutional scrutiny as components of an overall secular holiday display. These cases support the constitutionality of the local government’s ownership or sponsorship of a menorah or crèche, if either or both are displayed in context among an overall display of secular, holiday-themed items.45
However, the local government should avoid permitting sectarian items included in the display to be used in religious rituals or activities, as a court may find this to have the primary effect of promoting religion and create excessive entanglement with a religious group in violation of the second and third prongs of the Lemon test.46 Ensuring that the menorah is appropriately lit should not be an issue, and neither should the kind of brief and civic prayer traditionally given at governing body meetings. A more explicitly sectarian and complete religious observance will be an issue if the display is local government-sponsored.
• Private Displays — A court interpreting the Constitution would likely deem a downtown traffic circle to be a traditional public forum for free expression. As such, the local government may impose only reasonable restrictions on the time, place, and manner of private expression, including religious expressions, such as private displays of religious holiday symbols. This may include a policy under which private users may not place unattended holiday displays, or the displays must otherwise meet neutral requirements such as size, location, and duration.
If the local government elects to permit unattended private holiday displays, it must provide access to the traffic circle and any assistance it chooses to offer on a nondiscriminatory basis. The local government may not restrict the content of such displays, and private persons may engage in religious ceremony or speech at these displays. It should also erect a sign to make clear to members of the public that such displays are private expression and should not be endorsed or sponsored by the local government.
Under the applicable case law, ceremonial prayer and worship activities related to a privately placed menorah or crèche would be considered private religious expression within the public forum and must be permitted subject to reasonable, content-neutral time, place, and manner restrictions, in order to comply with the free exercise rights of such private groups under the First Amendment.
• Local Government-sponsored Displays — Establishment Clause cases concerning government-sponsored holiday displays are decided on a case-by-case basis. With regard to a holiday display placed by the local government, the relevant case law does not distinguish between inclusion of a menorah or crèche that is donated to the local government or such items that are loaned to the local government by a private party or group, but erected and maintained by the local government. Court cases have considered both situations constitutionally permissible, provided that these symbols are displayed within the context of an otherwise secular holiday display. If the local government includes a menorah or crèche within the local government-sponsored holiday display, the local government must ensure that the overall display continues to feature secular symbols, such as the Christmas tree or a dreidel.
However, if the local government owns or sponsors a menorah or crèche within its holiday display, the local government should avoid condoning the use of these items for ritual religious purposes in a manner that would be perceived by a reasonable observer to be an endorsement of religion. For example, any special event associated with the lighting of a local government-owned or local government-sponsored menorah should not include religious prayer, worship songs, or the like to avoid creating a reasonable inference of government endorsement of religion. If the local government desires to accept a menorah and include it as part of the local government display, it may be advisable to combine the menorah lighting event with a Christmas tree lighting event as one holiday celebration. Observance of these guidelines will help to minimize the local government’s exposure in the event of an Establishment Clause challenge.
1 Although private religious speech on government property is also protected under the Free Exercise Clause, these cases are usually resolved under the Free Speech Clause. Summum v. Callaghan, 130 F.3d 906, 913 (10th Cir. 1997).
2 See U.S. Const. amend. I.
3 The Florida Constitution contains an establishment clause in art. I, §3 and a free speech clause in art. I, §4. Our research has located no decisions interpreting these provisions in a manner inconsistent with the interpretations of like provisions of the U.S. Constitution. Accordingly, the instant analysis, though equally applicable under the Florida Constitution, is limited to judicial interpretations of the U.S. Constitution.
4 Lynch v. Donnelly, 465 U.S. 668, 687 (1989).
5 See, e.g., Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 250 (1990).
6 United States v. Kokinda, 497 U.S. 720, 726-727 (1990).
7 Perry Educational Assn. v. Perry Local Educator’s Assn., 460 U.S. 37, 45 (1983). Governments may enforce content-neutral regulations on the time, place, and manner of private expression in public fora, so long as the restrictions are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Perry, 460 U.S. at 45.
8 Perry, 460 U.S. at 45; Kokinda, 497 U.S. at 725-726.
9 Perry, 460 U.S. at 45.
11 United States v. Grace, 461 U.S. 171, 179 (1983).
12 Hawkins v. City and County of Denver, 170 F.3d 1281, 1288 (10th Cir. 1999); ACLU v. City of Las Vegas, 13 F. Supp. 2d 1064, 1074 (D. Nev. 1998). See also International Society for Krishna Consciousness (ISKON) v. Lee, 505 U.S. 672, 700 (1992), Justice Kennedy concurring (“In some sense the government always retains authority to close a public forum, by selling the property, changing its physical character, or principal use”). Although a concurrence is not considered binding, this opinion provides a strong indication that a Florida court would rule that a government may eliminate a traditional public forum by selling the property or altering its nature. However, as shown below, the government is subject to constitutional restraints even in a nonpublic forum.
13 Grace, 461 U.S. at 180.
14 Evans v. Newton, 382 U.S. 296 (1966)
(court disregarded sham transfer of a city park made to avoid prohibitions against racial segregation by government).
15 Perry, 460 U.S. at 45.
18 Perry, 460 U.S. at 46.
19 Good News Club v. Milford Central School, 121 S. Ct. 2093 (2001); Bloedorn v. Grube, 631 F.3d 1218 (11th Cir. 2011).
20 Good News Club, 121 S. Ct. at 2100.
22 Id. at 2097.
23 Kokinda, 497 U.S. at 726; ISKON, 505 U.S. at 679.
24 Kokinda, 497 U.S. at 727.
25 Although the Supreme Court has not decided a case involving an identical piece of property, the Court’s clear identification of parks, streets, medians, and sidewalks as quintessential traditional public fora suggests that a traffic circle is a traditional public forum. Lower courts in other jurisdictions have determined that similar public places are traditional public fora. See, e.g., Krafchow v. Town of Woodstock, 62 F. Supp. 2d 698 (N.D. NY 1999). (“Village Green” which was only 145 feet by 50 feet in size was still considered a traditional public forum); Acorn v. City of New Orleans, 606 F. Supp. 16 (D.C. La. 1984) (New Orleans’ “neutral ground” areas, which are medians in divided streets that separate traffic flow going in opposite directions were found to be traditional public fora). If the local government’s policies for the area include allowing the placement of a privately sponsored menorah or other holiday decorations, that would further support the conclusion that the traffic circle would also be considered a “designated public forum” and the local government would be bound by the same restrictions. See Snowden v. Town of Bay Harbor Islands, Florida, 358 F. Supp. 2d 1178 (S.D. Fl. 2004) (the U.S. District Court for the Southern District of Florida found that the grassy median dividing the Broad Causeway was a designated public forum, because the town had consistently allowed display of a privately owned menorah there).
26 For example, nonprofit groups in Miami Beach may use tables for solicitation only from 8 a.m. to one half hour after sunset. The 11th Circuit Court of Appeals reasoned that the city had a significant government interest in protecting the groups and the public from criminal activities, where the non-profit groups carried large amounts of cash, and were not protected by enclosed structures, and thus were vulnerable targets for criminal activity. One World One Family Now v. City of Miami Beach, 175 F.3d 1282 (11th Cir. 1999).
27 Chabad Lubavitch of Georgia v. Miller, 5 F.3d 1383 (11th Cir. 1993).
28 Capital Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995).
29 Kokinda, 497 U.S. at 723.
30 Capital Square, 515 U.S. at 760. The local government could adopt a policy that would prohibit any persons or entities other than the local government from leaving any materials or erecting any unattended display on any public property overnight. This would allow the local government to erect an annual holiday display but prohibit private parties or groups from doing so. Alternatively, the local government could regulate such activity. It is recommended that the local government adopt a written policy, rather than handle applications on a case-by-case basis, to avoid claims that the local government is basing its decisions regarding the use of the public forum on the content of the expression.
32 Chabad, 5 F.3d at 1383.
34 Id. at 1386. However, a case involving a private religious display in a non-public forum would likely reach the opposite result. Allowing a private religious display, such as a menorah, cross, or crèche standing alone in a non-public forum, or in a public forum in which displays are generally prohibited, could be deemed to be a government endorsement of a particular religion or religious group in violation of the Establishment Clause. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989).
35 Lynch v. Donnelly, 465 U.S. at 687.
36 See Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).
38 County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989).
39 Id. at 613.
40 Id. at 614.
41 Lynch, 465 U.S. at 668.
42 Allegheny, 492 U.S. at 601.
43 Id. at 599.
44 Id. at 621, fn. 70. The mere fact that a government-sponsored display that has a secular purpose also provides an incidental benefit to a religious group does not cause the display to violate the Establishment Clause. Lynch, 465 U.S. at 682.
45 Courts have consistently held that the temporary display of religious-oriented symbols on public property was constitutionally permissible under the First Amendment where sectarian objects, including a nativity scene and menorah, were displayed with a variety of other secular holiday items. See, e.g., American Civil Liberties Union v. City of Florissant, 186 F.3d 1095 (8th Cir. 1999), reh’g and reh’g en banc denied, (Sept. 30, 1999); Doe v. City of Clawson, 915 F.2d 244 (6th Cir. 1990) (holding that a Nativity scene near city hall was not a violation where there were other secular Christmas decorations nearby); Mather v. Village of Mundelein, 864 F.2d 1291 (7th Cir. 1989), reh’g denied, 869 F.2d 356, 13 Fed. R. Serv. 3d 71 (7th Cir. 1989) (holding that inclusion of a Nativity scene on the lawn of the village hall during the Christmas season was constitutionally permissible, as the overall display also contained lights on evergreens, a wreath, and banner over the main door, Santa Claus and a sleigh, carolers, snowmen, carriage lights, wreaths, and two soldiers in the shape of nutcrackers. The secular nature of most of the symbols included did not demonstrate the city’s support for a religion).
46 Lemon, 403 U.S. at 619-622.
Susan L. Trevarthen and Johanna Lundgren practice law with the firm of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., in Ft. Lauderdale. They represent local governments on land use, zoning, and municipal issues, and their practices include extensive work related to First Amendment limitations on municipal regulation and activities.
This column is submitted on behalf of the City, County and Local Government Law Section, Kenneth A. Tinkler, chair, and Jewel White, editor.