Merry Litigation and Happy Attorneys’ Fees: Holiday Displays on Downtown Public Property

Local governments can put up holiday displays on their property, but they have to be careful about showing religious symbols. They can only display religious symbols like a crèche or menorah if they’re shown with other non-religious holiday items, like a Christmas tree. In some places, the government has to let people put up their own religious displays, but they can make rules for how those displays can be put up. The rules might cover things like how big the display can be, how long it can be there, and where it can be placed. This is because of the First Amendment to the Constitution, which protects freedom of speech and prevents the government from favoring one religion over another. Local government can control private speech in public places like parks and rights of way, but it depends on whether that place is considered a “public forum” for free speech. If it is, the government’s limits on speech must be very important and very specific. Courts usually say that parks and rights of way are traditional places for free speech. Courts determine if a public place is a public forum by looking at the physical property and its historical use. There are four types of public property: traditional public forum, designated public forum, limited public forum, and nonpublic forum. Traditional public fora are places like streets and parks that have always been used for public expression. Designated public fora are places the government has opened for public use. Limited public fora are places the government has set aside for certain activities. The government can’t change a public property into a nonpublic forum without a legitimate change in ownership. And in public forums, the government can’t restrict speech based on viewpoint. A downtown traffic circle is like a park or a city sidewalk, so it’s considered a place where people can express themselves freely. If the local government wants to limit what people can do there, the rules have to be fair and not show favoritism. If the traffic circle is in a busy area and people use it for events and gatherings, the government can’t restrict free speech there without a good reason. The local government can’t ban all expressive or religious activities in the downtown traffic circle. They can only enforce reasonable rules about when and how these activities can happen. In a public area like the traffic circle, private groups can share their beliefs and ideas, as long as they follow the rules. The government doesn’t have to let people leave displays in the traffic circle, but if they do, they have to treat everyone fairly and make sure the displays are safe. The local government can’t stop people from expressing their religion in a public place just because they’re worried people will think the government supports that religion. A court ruled that a Jewish group could put up a menorah in a public park, as long as the government doesn’t stop others from putting up displays too. The government isn’t allowed to show support for any one religion. There are some rules the government has to follow when it comes to holiday displays on public property, but it’s a bit complicated. A challenge to a holiday display would be looked at to see if it meets these rules. The local government can put up a holiday display that includes religious symbols as long as it also has a secular purpose. The Supreme Court has said that a display with both a Christmas tree and a menorah, along with a sign about liberty, is okay because it’s seen as a secular display. It doesn’t matter that the menorah came from a religious group, as long as the overall context is not promoting one religion over others. The context in which religious symbols are displayed helps determine whether they have a secular or religious message. For example, a Christmas tree and other non-religious holiday items alongside a crèche can make the entire display secular. But if a crèche is displayed with a religious sign in a non-public area, it may be seen as endorsing a religious message.

The Supreme Court said that if a religious symbol is used for a religious purpose, like a ritual, it may not be considered secular. So, a display with a menorah or crèche can be constitutional if it’s part of an overall display of secular, holiday-themed items. But the local government should avoid letting these items be used for religious rituals, as that could be seen as promoting religion too much.

In short, how a display looks and what’s around it matters when deciding if it’s allowed. And the government should make sure that religious items in the display are not being used for religious activities. The local government can’t stop private individuals from putting up holiday displays in the downtown traffic circle, as long as the displays follow neutral rules. If the local government wants to put up its own holiday display, it can include religious symbols like a menorah or crèche, but it has to also include secular symbols and make it clear that the display is not sponsored by the government. If the local government wants to include religious displays like a menorah or crèche in holiday decorations, they should make sure they’re not being used for religious ceremonies. For example, if they have a menorah, they can have a lighting event together with a Christmas tree lighting event to make it a holiday celebration for everyone. This will help prevent any legal issues related to favoring one religion over another. The government can close a public space by selling it or changing its use, but they still have to follow the rules in a nonpublic space. In the past, a city tried to avoid rules about segregation by transferring a park to a different owner, but the court didn’t allow it. In another case, a school had to let a club meet on its property, even if it didn’t agree with the club’s message. The Supreme Court has not specifically said that a traffic circle is a public forum, but other courts have said that similar places are. If the local government allows holiday decorations in the traffic circle, it would be considered a public forum and the government would have to follow the same rules for it. In Miami Beach, nonprofit groups can only solicit from tables during certain hours because of safety concerns. The local government can make rules about who can put up displays on public property. They can allow their own displays but may have to be careful about allowing private groups to put up religious displays in certain places. The government needs to make sure that their displays have a secular purpose and don’t promote any specific religion. In simple terms, courts have said it’s okay to display religious symbols on public property as long as there are also other non-religious holiday decorations. This article was written by lawyers who work with local governments on legal issues, including the First Amendment. It was submitted on behalf of a section of the Florida Bar that focuses on city and county laws.

Source: https://www.floridabar.org/the-florida-bar-journal/merry-litigation-and-happy-attorneys-fees-holiday-displays-on-downtown-public-property/