That may well be with respect to passive displays; probably not with respect
to live speakers.
But I inadvertently misled by talking about endorsement. The question under
discussion was whether allowing one group and only one group to erect a
display on government property makes it government speech. The answer to
that is still yes. The nativity scene put up by the preferred group becomes
government speech, even if the endorsement test is overruled and that speech
becomes permissible.
If the nativity scene were private speech, there would be obvious viewpoint
discrimination and a Speech Clause violation. It becomes permissible only if
it is government speech -- and then only if government is permitted to
endorse the truth claims of a particular faith. These are two different
issues.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Wednesday, December 11, 2013 11:03 AM
To: Law & Religion issues for Law Academics
Subject: Re: Satanists want statue beside Ten Commandments monument at
Oklahoma Legislature
I think Doug is correct that preferential access probably triggers Allegheny
and the endorsement test.
But Justice O'Connor is long gone, and Allegheny is ripe for
re-consideration. I suspect the endorsement test would not survive
re-consideration, given the current lineup on the Court.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
My recent article, Just Another Brick in the Wall: The Establishment Clause
as a Heckler's Veto, is available at SSRN
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504>
"And against the constitution I have never raised a storm,It's the
scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from
the song, Thomas Muir of Huntershill)
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