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Media Alerts - Santa Monica Nativity Scenes Committee v. City of Santa Monica - Ninth Circuit
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June 9, 2015
  Santa Monica Nativity Scenes Committee v. City of Santa Monica - Ninth Circuit
Headline: City's decision to ban all "unattended displays," including the decades-old practice of exhibiting nativity scenes during the month of December, in a public park is not unconstitutional.

Area of Law: First Amendment Free Speech Clause, Heckler's Veto; First Amendment Establishment Clause

Issue Presented: Does a City violate the Free Speech and Establishment Clause of the First Amendment when it opens up a public forum for religious and non-religious speech in the form of an unattended display, then subsequently prohibits all unattended display speech.

Brief Summary: It had been a tradition in the City of Santa Monica to open up the renowned Palisades Park every December for the Santa Monica Nativity Scene Committee to erect biblical displays that told the story of Christmas. In 2003, the City enacted the "Winter Display" ordinance which allowed all members of the public to construct unattended displays in Palisades Park. In 2011, however, applications for Winter Display space surged when a number of atheists who opposed the placement of religious displays in Palisades Park applied for Winter Display space in what the Committee alleged was a coordinated attempt to keep the space away from the Committee and other religious groups. In June 2012, the City repealed the "Winter Display" ordinance in response to the City Attorney's recommendation that eliminating the Winter Display [ordinance] would "serve the purpose[s] of resolving the controversy, eliminating legal risks, conserving the staff time and resources necessary to operate a constitutionally valid regulatory system, conforming usage of Palisades Park to the long standing, City-wide standard which prohibits unattended displays in parks, and protecting the views of the park and ocean."

The Committee challenged the City's decision to repeal the "Winter Display" ordinance claiming that, under the Free Speech Clause, the repeal should be considered content based pursuant to the "heckler's veto" and that the repeal constituted a violation of the Establishment Clause. The court rejected both claims because the City's repeal of the ordinance did not silence particular speech or a particular speaker, but rather was a generally applicable regulation meant to balance competing speech rights, and was narrowly tailored to serve significant government interests to avoid the increased costs of maintaining and regulating the controversial annual event and to preserve the aesthetic qualities of the park.

Significance: There is no First Amendment Free Speech violation when a public entity enacts a generally applicable ordinance that does not single out any particular form of speech but prohibits all speech in the form of an unattended display in a traditional public forum like a public park. A public entity does not violate the First Amendment establishment clause when it prohibits the construction of a nativity scene for secular purposes like improving the aesthetics of a public park and alleviating administrative burdens on the entity.

Extended Summary: Every year since 1955, Santa Monica locals erected biblical displays during the month of December in Palisades Park. Managing this yearly event was a significant undertaking and in 1983, the Santa Monica Nativity Scenes Committee (Committee) was organized to manage the annual event.

In 1994, Santa Monica enacted a city ordinance that prohibited the construction of unattended displays in the park. Every year during December, however, the City simply overlooked the fact that the Committee continued to erect a nativity scene in Palisades Park. In 2003, the City Council carved out a "Winter Display" exception to the general prohibition of unattended displays which authorized all members of the community, including the Committee, to erect unattended displays in Palisades Park in the month of December on a first-come first-serve basis.

The "Winter Display" system subsequently adopted a lottery system due the increased number of religious and non-religious persons who wanted display space in the Park. In 2011, a number of atheists who opposed religious displays in public succeeded in obtaining a large percentage of the available Winter Display space. Additionally, members of the public held protests near the Committee's nativity scenes which drew unwanted attention and required increased regulation. These protests became the basis of the Committee's "heckler's veto" argument. The flood of lottery applicants also proved to be an onerous burden on the City due to the costly and time-consuming nature of managing the lottery and event. As a result, the City of Santa Monica elected to repeal the Winter Display exception and keep Palisades Park free from all unattended displays. The ordinance that repealed the Winter Display exception prevented the Committee from continuing to erect nativity scenes.

The Committee challenged the City's repeal of the Winter Display exception contending that the repeal violated the Committee's free speech right because the repeal was not content neutral under the "heckler's veto" doctrine. The Committee also alleged the City had conveyed a message of disapproval of the Christian Religion which also violates the Establishment Clause.

The District court granted the City's 12(b)(6) motion. On appeal by the Committee, the Circuit court reviewed the lower courts ruling under a de novo standard of review.

In a public forum, like Palisades Park, the government's ability to regulate speech is significantly restricted. Content-neutral time, place, and manner regulations are permitted in public forums so long as the regulations are "narrowly tailored to serve a significant governmental interest and leave open ample alternative channels of communications." The panel noted that the Committee did not dispute that the City's repeal of the "Winter Display" exception is facially content-neutral because it bans all unattended displays and does not discriminate against particular displays based on their content.

The Committee did contend, however, that the repeal of the Winter Display was a "heckler's veto" because the City Council enacted it in response to the atheists' objections to the Committee's nativity scenes. The "heckler's-veto" doctrine holds that "a regulation of speech is to be deemed content based when 'listeners react to speech based on its content and the government then ratifies that reaction by restricting the speech in response to the listeners' objections.'" The doctrine essentially prohibits a government regulation based on the "secondary effect" of a certain form of speech.

The Ninth Circuit panel rejected the "heckler's veto" claim. The panel instead found that the City adopted a generally applicable regulation for the purpose of balancing competing speech rights rather than to suppress a particular message because of the public's reaction to it. The City did not repeal the ordinance to silence protests that resulted from the nativity scenes; the ordinance was abandoned as a reaction to the many problems that arose such as the expensive and time consuming regulation by the City of the annual event.

The panel also held the Committee failed to present evidence of an Establishment Clause violation. Under the Lemon Test, a regulation violates the Establishment Clause if it (1) lacks a secular legislative purpose, (2) its primary effect is to advance or inhibit religion, or (3) fosters excessive government entanglement. The City had a secular purpose for repealing the statute because of increased time and effort required to maintain the Winter Display. The primary effect of the repeal was not to inhibit Christianity but, rather, to maintain the aesthetics of Palisades Park and to alleviate administrative burdens on the City. The Committee did not address the third prong of the test.

To read the full opinion, please visit:

Panel: Michael J. Melloy, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

Date of Issued Opinion: April 30, 2015

Docket Number: 13-55011

Decided: Affirmed the decision of the District Court for the Central District

Case Alert Author: Brian D. Shapiro

Counsel: William J. Becker (argued), The Becker Law Firm, Los Angeles California; Michael J. Peffer, Pacific Justice Institute, Santa Ana, California, for Plaintiff-Appellant.

Yibin Shen (argued), Deputy City Attorney, Jeanette Schechtner, Chief Deputy City Attorney, Barry A. Rosenbaum, Senior Land Use Attorney, Heidi Von Tongeln, Deputy City Attorney, Santa Monica, California, for Defendant-Appellee.

Author of Opinion: Judge Bybee

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 06/09/2015 05:08 PM     9th Circuit  

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