I have to disagree with part of John Parry's post. A ban on all religious speech in the park would not simply be content discrimination. It would also be viewpoint discrimination, as we learn from Lamb's Chapel and Good News Club. Thus, even if the park were a nonpublic forum, so that reasonable content discrimination would be permissible, religious speech could not be banned from the park.
My understanding, though, is that streets and parks are traditional public forums; thus even viewpoint-neutral content-based regulation is probably impermissible. I certainly hope that some way can be found to keep this terrible monument out of the park, but it can't be done by banning religious speech. A more promising approach (as others have suggested) would be to prohibit all permanent private monuments (probably a reasonable, content-and-viewpoint-neutral time, place, and manner regulation) and to take up the Eagles on their offer to remove the Ten Commandments monument. I'd have to think more about whether a prohibition on monuments that personally attack an individual could be upheld. If for some reason the anti-Shepard monument is placed in the park, it likely will not remain legible (or in one piece) for long, unless it is guarded day and night. I don't think the city has an obligation to guard it, as long as the city does not discriminate in its protection of the private monuments in the park or in its enforcement of vandalism ordinances. This is not to say that a city has no obligation to protect those who would speak in person in the parks, but I don't think that the obligation to protect against intimidation of speakers can be extended to an obligation to protect an inanimate object placed permanently in a park. Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Parry, John [mailto:[EMAIL PROTECTED] Sent: Monday, October 13, 2003 11:18 AM To: [EMAIL PROTECTED] Subject: Re: to condemn Matthew Shepard, Pastor plans monument for City Park Some questions about this very interesting problem: Isn't there a clear difference between the monument and Cohen? In Cohen, the jacket is a moving, temporary thing, whereas the hell monument is intended, I assume, to be permanent. I think Justice Harlan might have found this to be a relevant difference at the time he wrote Cohen. Has the law changed so much? (Remembering, too, that Virginia v. Black suggests a certain amount of play in the doctrines.) Why is the park a public forum? One option is that it is a public forum simply because it is a place in which people traditionally have spoken freely. Or, it could be that the presence of the 10 commandments monument makes the park a public forum. But could a park be a public forum for temporary or verbal communication, but not for permanent, written communications? (This ties in with the Cohen point.) If so, then the city could ban all permanent forms of speech in the park and require removal of the 10 commandments memorial. Alternatively, couldn't the park also be a non-public forum that the government has made available for religious speech? In that case, the issue would be viewpoint discrimination, and the city would be out of luck if it wants to keep the 10 commandments monument. But it would be free to engage in content discrimination and ban all religious speech (or ban all permanent forms of religious speech), while allowing other forms of speech (perhaps commercial expression!). John T. Parry Associate Professor of Law University of Pittsburgh School of Law 3900 Forbes Avenue Pittsburgh, PA 15260 412-648-7006 -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Marci Hamilton Sent: Monday, October 13, 2003 1:49 PM To: [EMAIL PROTECTED] Subject: Re: Fw: to condemn Matthew Shepard, Pastor plans monument for City Park In a message dated 10/12/2003 11:58:11 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: > Wouldn't NEA v. Finley support a similar argument? Finley would help only on the theory that the limitation of decency was in place in order to protect children. a limit that makes some sense when the content is indecent. The Court signalled that if the recipients of the art were to be limited to adults, a different result might have accrued. Here, it is religious/political speech that is not inapproprate for children to see in the same sense that sexually explicit speech might be. Given the high value of religious and political speech by themselves, it would seem the value of this statement is extremely high, as unpopular as it would be. I do not see the difference between the statue proposed for Casper and the jacket worn in Cohen v. California.... It's very hard to keep offensive speech out of the public square. Marci
