By Kozlowski, James C.
Parks & Recreation , Vol. 30, No. 11
A public park or square is considered a "quintessential" public forum for the exercise of First Amendment free speech rights. As a result, time, place and manner restrictions on free speech activities must be reasonable and content neutral. As illustrated by the Capitol Square decision described below, such content neutrality extends to the use of religious symbolism by private groups in a public forum. As a result, the issuance of permits to private groups and individuals for displays in public parks and places must walk a fine line between the endorsement or entanglement with religious symbols in violation of the Establishment Clause and discrimination against religious symbols in violation of the Free Speech and Free Exercise of Religion Clauses. (See also the October 1989 NRPA Law Review column entitled "Constitution Bans Religious Effect in Public Holiday Displays" which described a constitutional challenge to the display of a "creche" or nativity scene on public property. Similarly, see the June 1985 NRPA Law Review, "A Christmas Carol in the Park from the Supremes.")
Government or Private Speech?
In the case of Capitol Square Review and Advisory Board. v. Pinette, 115 S.Ct. 2440, 132 L.Ed.2d 650, 63 USLW 4684, (U.S.Ohio, Jun 29, 1995) (NO. 94-780) the State of Ohio would not issue a permit for the Ku Klux Klan to display a cross in a public square. In the opinion of the State, permitting the private display of a religious symbol on the grounds of the state capitol would violate the Establishment Clause of the First Amendment. Accordingly, the specific issue before the United States Supreme Court was "whether a State violates the Establishment Clause when, pursuant to a religiously neutral state policy, it permits a private party to display an unattended religious symbol in a traditional public forum located next to its seat of government." As described by the Court, "The Establishment Clause of the First Amendment, made binding upon the States through the Fourteenth Amendment, provides that government "shall make no law respecting an establishment of religion." The facts of the case were as for lows:
Capitol Square is a 10-acre, state-owned plaza surrounding the Statehouse in Columbus, Ohio. For over a century the square has been used for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious. Ohio Admin. Code Ann. 1284-02(A) (1994) makes the square available "for use by the public...for free discussion of public questions, or for activities of a broad public purpose," and Ohio Rev. Code Ann. 105.41 (1994), gives the Capitol Square Review and Advisory Board responsibility for regulating public access. To use the square, a group must simply fill out an official application form and meet several criteria, which concern primarily safety, sanitation, and non-interference with other uses of the square, and which are neutral as to the speech content of the proposed event. Ohio Admin. Code 1284-02 (1994).
It has been the Board's policy "to allow a broad range of speakers and other gatherings of people to conduct events on the Capitol Square." Such diverse groups as homosexual rights organizations, the Ku Klux Klan and the United Way have held rallies. The Board has also permitted a variety of unattended displays on Capitol Square: a State-sponsored lighted tree during the Christmas season, a privately-sponsored menorah during Chanukah, a display showing the progress of a United Way fundraising campaign, and booths and exhibits during an arts festival.
In November 1993, after reversing an initial decision to ban unattended holiday displays from the square during December 1993, the Board authorized the State to put up its annual Christmas tree. On November 29, 1993, the Board granted a rabbi's application to erect a menorah. That same day, the Board received an application from respondent Donnie Carr, an officer of the Ohio Ku Klux Klan, to place a cross on the square on December 8, 1993, to December 24, 1993. …