For millions of Americans, December brings celebrations of religious and secular holidays. But the uniqueness of the season also brings lawsuits that center on First Amendment principles – and how people display their feelings.
A common denominator of past constitutional controversies has been the appearance of nativity scenes on government-owned property viewable to the public. But this season, there is also a new dispute about advertising on Washington, D.C. buses that centers on the First Amendment and the holiday season.
As for nativity scenes this year, in Boca Raton, Florida, there was a controversy about the appearance of a decoration from The Satanic Temple near a public nativity scene. Any conflict there died out when a permit deadline was missed to place the decoration in a public location.
However, in October 2017 a federal judge ruled against Texas Governor Greg Abbott in a different nativity controversy. Abbott had ordered the removal of a satirical nativity scene from the state capitol. The scene replaced the traditional nativity characters with three Founding Fathers looking at the Bill of Rights. It was approved by the state’s preservation board and located near other holiday scenes.
U.S. District Judge Sam Sparks said Abbott violated the First Amendment by “arguing the exhibit's satirical tone rendered it offensive to some portion of the population. That is viewpoint discrimination. … It is 'beyond debate' the law prohibits viewpoint discrimination in a limited public forum.” Abbott will appeal the ruling.
A different kind of controversy is brewing in the nation’s capital, Washington, D.C. There, Archdiocese officials have sued the Metropolitan Area Transit Authority (or Metro) over the Metro’s decision to not display Archdiocese advertising on public transportation. Specifically, the Metro turned down ads for a campaign called “Find the Perfect Gift” that depicted three shepherds, two animals and a star in a landscape scene.
The Metro said the images in the ads ran afoul of its ban on issue-oriented advertising. The Archdiocese claims its First Amendment rights are being violated because the Metro has approved ads promoting the Salvation Army and the practice of yoga.
“The First Amendment, with its guarantees of free speech and the free exercise of religion, prevents the government from denying speech on the unreasonable, arbitrary, and discriminatory grounds put forward by [the Metro],” the Archdiocese attorneys argue. “Court should … allow the Archdiocese to convey its message of hope on public buses during this holiday season.”
The Metro’s issue-oriented advertising ban is already the target of another lawsuit, featuring the combination of the American Civil Liberties Union, PETA, and Milo Yiannopoulos, all of whom had ads blocked under the policy.
One issue in the Metro lawsuit case will be if public transit systems qualify as designated or limited public forums. In a designated public forum, any restriction on free speech must be very targeted, or tailored, to serve a compelling public interest. Limited public forums allow free speech to be restricted if rules are “viewpoint neutral.”
The United States Supreme Court passed on a case about a similar issue back in 2016, American Freedom Defense Initiative v. King County. Justice Clarence Thomas disagreed with denying the case. “This case involves a type of forum that has prompted especially stark divisions among federal courts of appeals: advertising in public transit spaces,” Thomas said. “Whether public transit advertising spaces are designated or limited public forums determines what speech millions of Americans will—or will not—encounter during their commutes.”
Regarding public nativity scenes, the Supreme Court has ruled on the issue in the past. In Lynch v. Donnelly (1984), the Court was asked to consider if the First Amendment prohibited a town from including a Nativity scene in its annual Christmas display. The holiday display in Pawtucket, Rhode Island, included the crèche along with other secular symbols such as a plastic reindeer, a Santa Claus house, and a Christmas tree.
Chief Justice Warren Burger allowed the crèche to stay at the exhibit. Court observers at the time saw the presence of the reindeer as broadening the purpose of the display.
Another holiday-related decision in 1989 clarified the Court’s position on crèches. In County of Allegheny v. American Civil Liberties Union, the Court said in a 5-4 decision that of two public-sponsored holiday displays in Pittsburgh, Pennsylvania, only one was permissible.
Inside a court house the county had set up a crèche that omitted a plastic reindeer, a Christmas tree or a Menorah. The Justices objected to that display. A second display outside the Allegheny County courthouse featured a Menorah, a Christmas tree and a sign honoring Liberty. “We agree that the creche display has that unconstitutional effect, but reverse the Court of Appeals' judgment regarding the menorah display,” said Justice Harry Blackmun.
After Lynch and Allegheny, the Court has mostly stayed out of cases involving the holiday season.
Scott Bomboy is the editor in chief of the National Constitution Center.