Remember How Gov Greg Abbott (TX) Ordered a Winter Solstice Nativity Removed from the Capitol?


 

Remember How Gov Greg Abbott (TX) Ordered a Winter Solstice Nativity Removed from the Capitol?
 


3 November 2017 at 3:54:14 PM
salon

He was sued... and lost in US District Court. . Abbott has appealed (10/24/2017

The Freedom From Religion Foundation has prevailed in federal court against Texas Governor Greg Abbott, who ordered the removal of FFRF's winter solstice Bill of Rights Nativity from the Texas Capitol in 2015.

In his decision, handed down late on Friday, Oct. 13, U.S. District Judge Sam Sparks for the Western District of Texas – Austin Division, ruled that Abbott violated FFRF's free speech rights. 

FFRF had placed a duly permitted display celebrating the Winter Solstice and Bill of Rights Day, in response to a Christian nativity at the Texas Capitol. The display, depicting founding fathers and the Statue of Liberty celebrating the birth of the Bill of Rights (adopted Dec. 15, 1791), had the requisite sponsorship from a Texas legislator.

Abbott, as chair of the Texas State Preservation Board, ordered FFRF's display taken down only three days after it was erected, lambasting it as indecent, mocking and contributing to public immorality.

"Defendants have justified removal of FFRF's exhibit by arguing the exhibit's satirical tone rendered it offensive to some portion of the population. That is viewpoint discrimination," writes Sparks in a 24-page ruling. The court also held that a reasonable official in Governor Abbott's position would have known that removing FFRF's display based on its viewpoint would violate FFRF's First Amendment rights, thus FFRF can sue Governor Abbott in his personal capacity.

"It is 'beyond debate' the law prohibits viewpoint discrimination in a limited public forum," Sparks ruled.

Sparks did not find that Abbott's actions violated the Establishment Clause, but also ruled in FFRF's favor that FFRF has the right to depose the governor for one hour. Abbott had fought the request for a deposition.

FFRF Co-President Annie Laurie Gaylor praised the ruling as a very strong decision for FFRF, for free speech and for the rights of nonbelieving citizens. "We'd rather keep divisive religious — and irreligious — views out of state capitols. But if the government creates public forums, and permits Christian nativities in them, there must be room at the inn for the rest of us."

FFRF is a national state/church watchdog with more than 29,000 nonreligious members. It requested the right to put up a December display at the request of some of its more than 1,200 Texas members.

The case is Freedom From Religion Foundation v. Governor Greg Abbott, Cause No. A-16-CA-00233-SS. FFRF was represented by Attorney Richard L. Bolton with FFRF Attorney Sam Grover as co-counsel. More history about the case may be found here

From Justice Sam Spark's opinion, selected.

1. Defendants' Removal of FFRF's Exhibit Constitutes Viewpoint Discrimination as a Matter of Law. Government restrictions on speech in a limited forum must be viewpoint neutral. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829-3 1 (1995). Viewpoint discriminationi.e., "discrimination because of the speaker's specific motivating ideology, opinion, or perspective"is presumed impermissible when directed against speech otherwise within a forum's limitations. Id.; see also Reed v. Town of Gilbert, 135 S. Ct. 2218, 2230 (2015). The Supreme Court has emphasized First Amendment jurisprudence "use[s] the term 'viewpoint discrimination' in a broad sense." See Matal v. Tam, 137 5. Ct. 1744, 1763 (2017) ("We have said time and time again that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." (internal quotation marks omitted)).6 Moreover, "[t]he existence of reasonable grounds for limiting access to a nonpublic forum . . . will not save a regulation that is in reality a facade for viewpoint-based discrimination." Cornelius v. NAACP Legal Def & Educ. Fund, Inc., 473 U.S. 788, 811 (1985); see also id. at 8 11-12 ("While we accept the validity and reasonableness of the justifications offered by [the government] for excluding [certain groups from the nonpublic forum], those   justifications cannot save an exclusion that is in fact based on the desire to suppress a particular point of view."). According to Defendants, the record demonstrates FFRF's exhibit was only removed because its "mocking" and "satirical" tone did not serve a public purpose. Defs.' Second Mot. Summ. J. [#66] at 8. For example, in his August 18, 2016 letter to FFRF, then Executive Director Sneed stated "an exhibit that celebrates the Bill of Rights and the Winter Solstice without mocking the sincerely held religious beliefs of other Texans would be welcome in the exhibition areas of the Capitol . . . [and] approved." August Letter from Sneed to Rep. Howard at 57. Similarly, in its 30(b)(6) deposition, the Office of the Governor explained "a display or exhibit which mocks any particular viewpoint is contrary to the general welfare because the general welfare is served by a diverse set of viewpoints." Clay Dep. at 32. The gist of Defendants' argument is that they removed the exhibit because of its offensive tone, rather than on the basis of its nontheistic viewpoint, and that while the latter constitutes viewpoint discrimination, the former does not. Defs.' Second Mot. Summ. J. [#66] at 7. The Court finds it is unnecessary to decide whether Defendants removed the exhibit for its satiric tone or for its nontheistic point of view, because under the Supreme Court's recent decision in Matal v. Tam, either motive constitutes impermissible viewpoint discrimination. In Matal, the Supreme Court held a prohibition on registration of trademarks offensive to any group, institution, or belief constituted viewpoint discrimination as a matter of law. See Matal, 137 S. Ct. at 1753-54, 1763-1764 (invalidating Lanham Act's disparagement clause). Matal takes significant pains to emphasize "the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Id. at 1763 (internal quotation marks omitted). In the Court's view, denying registration to offensive marks constituted viewpoint discrimination because "[g]iving offense is a viewpoint." Id. Here, Defendants have justified removal of FFRF's exhibit by arguing the exhibit's satirical tone rendered it offensive to some portion of the population. That is viewpoint discrimination. Defendants contend removal of the exhibit for its satirical tone cannot constitute viewpoint discrimination because the exhibit's tone ostensibly violated the Preservation Board's public purpose requirement. Defs.' Second Mot. Summ. J. [#66] at 8. To the contrary, however, reasonable grounds for restricting access to a limited public forum do not preclude finding a particular decision to limit access to the forum constitutes viewpoint discrimination. Cf Cornelius, 473 U.S. at 811 ("The existence of reasonable grounds for limiting access to a nonpublic forum . . . will not save a regulation that is in reality a façade for viewpoint-based discrimination."); see also Rosenberger, 515 U.S. 819, 829-31 (1995) (holding viewpoint restrictions in limited public forums impermissible). The public purpose requirement cannot insulate conduct otherwise constituting viewpoint discrimination from constitutional scrutiny. Defendants' assertion that "Matal in no way suggested that the standard it applied to the Lanham Act's disparagement ban was the same as the standard that applies to restrictions on limited public fora" is similarly unconvincing. Defs.' Resp. Pl.'s Second Mot. Summ. J. [#69] at 77 Matal drew an express parallel between the government's ban on registration of disparaging trademarks and the government's ability to control speech in limited public fora, before emphasizing "even in such cases [where government has created a limited public forum for private speech], what we have termed viewpoint discrimination is forbidden." 137 5. Ct. at 1763; In fact, Defendants appear to suggest Matal's treatment of viewpoint discrimination is inapposite because trademarks are an area of special First Amendment scrutiny. See Defs.' Resp. Pl.'s Second Mot. Summ. J. [#69] at 7. In reality, the opposite is true: Matal struck down the disparagement clause on the basis of viewpoint discrimination in spite of the fact the case involved trademarks. See Matal, 137 S. Ct. at 1764-65 ("[T]he disparagement clause caimot withstand even Central Hudson review. . . . If affixing the commercial label permits the suppression of any speech that may lead to political or social 'volatility,' free speech would be endangered.").  see also id. at 1768 (Kennedy, J., concurring) ("It is telling that the Court's precedents have recognized just one narrow situation in which viewpoint discrimination is permissible: where the government itself is speaking or recruiting others to speak on its behalf."); Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2256 (2015) (Alito, J., dissenting) ("[W]hat Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.").8 In conclusion, because the ostensibly mocking tone of the FFRF exhibit is Defendants' sole stated reason for removing the exhibit from the Ground Floor Rotunda, the Court finds Defendants have engaged in viewpoint discrimination as a matter of law. The Court therefore GRANTS Plaintiff's Motion for Partial Summary Judgment and DENIES Defendants' Second Motion for Summary Judgment with respect to FFRF's freedom of speech claim. ...

In conclusion, if Governor Abbott request to remove the exhibit was motivated by the exhibit's viewpoint, Governor Abbott violated FFRF's clearly established First Amendment right to be free from viewpoint discrimination in a limited public forum. Because there is a disputed issue of material fact as to whether Governor Abbott violated clearly established law by engaging in viewpoint discrimination, summary judgment on Governor Abbott's claim of qualified immunity is inappropriate. See Heaney, 846 F.3d at 802 n.3 ("When qualified inmunity depends on disputed issues of fact, those issues must be determined by the jury." (internal quotation marks omitted)). Therefore, with respect to Governor Abbott's assertion of qualified immunity from FFRF's freedom of speech claim, the Court DENIES Governor Abbott's Motion for Judgment on the Pleadings and DENIES Defendants' Second Motion for Summary Judgment.  

 

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