I'm not Alan, but I would think that a county can certainly allow the MLK display and label it government speech, without being required to accept other displays from Satanists, Klansmen, or anyone else.
The complicating factor is that, when a county allows religious monuments, it may be inclined not to label them government speech (since so labeling them might trigger Establishment Clause objections). That's why we've got a potentially live free speech issue here, I think. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Friday, December 13, 2013 6:23 PM To: Alan Brownstein; Law & Religion issues for Law Academics Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature I have a question for Alan. Suppose a county courthouse allows a private group, say the NAACP, preferential access to put up a display celebrating the life of MLK. Must the county now allow the Satanist group access to this non-public forum to put up a display celebrating the life of Satan? Access to the local chapter of the KKK to put up a display disparaging MLK? Access to a Christian group to put up a Nativity Display? Or must the county deny the NAACP's access in order to avoid opening up the courthouse to other private groups, including groups who show up merely for the purpose of forcing the county to silence the NAACP? 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) ________________________________ From: Alan Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> To: Rick Duncan <nebraskalawp...@yahoo.com<mailto:nebraskalawp...@yahoo.com>>; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Friday, December 13, 2013 4:32 PM Subject: RE: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Wow! Allowing local groups with longstanding ties to the community preferential access to non-public forums (or denying access or providing less favorable access to outside groups or local groups without longstanding ties to the community.) What a great way to mask viewpoint discrimination and not only to promote and preserve religious hierarchy but also to entrench the current political power structure of the community at the same time. I hope the communities that adopt this policy are up-front about it in the literature describing their areas. First they should list all of the public property to which this policy of preferential access should apply -- which, of course, will be most of the public property in the town other than streets and parks: interior sidewalks, the lobby of government office buildings, bus terminals, train stations and airports, government workplace charity drives etc. Next they should list all of the religious, ethnic, and political groups they consider to be either outsiders or lacking longstanding ties to the community. If they are going to treat new residents or visitors as second class citizens they ought to at least let them know ahead of time. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Rick Duncan [nebraskalawp...@yahoo.com] Sent: Thursday, December 12, 2013 8:53 AM To: Douglas Laycock; 'Law & Religion issues for Law Academics' Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Doug is absolutely correct here. The Govt wins if this is government speech and the Ten C display does not violate the EC, either because a majority decides the endorsement test does not apply or, if it does apply, the display does not amount to an endorsement of religion (perhaps a majority may conclude that the purpose and effect do not endorse religion, but merely recognize the historical significance of the Ten Commandments in the local community). If this is some kind of forum for private speech--even if it is a non-public forum--Pl wins if this amounts to viewpoint discrimination. But if it is a non-public forum, and the restriction amounts to content or speaker but not viewpoint discrimination, the Govt will win if the content or speaker exclusion is reasonable. So a policy that allows local groups with longstanding ties to the community preferential access, if used to exclude an outside group with minimal ties to the community, may be permissible in a non-public forum. I think this is correct. No? 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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