Last week, the United States Court of Appeals for the Ninth Circuit upheld a Santa Monica City ordinance which prohibited unattended exhibits in Palisades Park, among them displays of the Nativity Scene, erected annually by the Santa Monica Nativity Scenes Committee. The Court found that the City’s ordinance was a valid content-neutral time, place, and manner regulation.
Residents of Santa Monica began erecting the Nativity Scene in Palisades Park as early as the 1950s. In 2003, the City passed an ordinance precluding unattended dioramas at the Park. The City, however, provided for a “Winter Display” exception, which allowed for unattended installations or unattended displays in Palisades Park during the month of December.
All Santa Monica residents were entitled to apply for a “Winter Display” space in the park. Spots were limited and offered on a first-come lottery basis.
The Winter Display system functioned without incident in its first few years of existence, during which time the only applicant who requested substantial display space was the Santa Monica Nativity Scene Committee. But in 2011, a group of atheists were able to secure most of the Winter Display spots. The Committee and the atheists, now in direct competition for the spots, both vowed to flood the display-space lottery with even more applications in 2012.
In early 2012, the Santa Monica City Attorney recommended that the Council eliminate the Winter Display exception for two reasons. First, Santa Monica residents wanted to preserve the aesthetic qualities of the Park and retain the ability to “look at the ocean vista,” rather than the Winter Displays. Second, the lottery system for display space was “time consuming and costly” to operate and required the investment of hundreds of hours of staff time – a problem that was likely to intensify because both groups planned to “flood” the lottery process.
The City Council agreed with the City Attorney and, on June 26, 2012, unanimously adopted Ordinance 2401, w
hich repealed the Winter Display exception. In response, the Nativity Scene Committee sued the City Council in the Central District of California, alleging violations under the U.S Constitution of First Amendment right to free speech and the Establishment Clause.
In ruling that the City did not violate the Committee’s First Amendment rights, the Court first determined that Ordinance 2401 was content-neutral as it was an “evenhanded regulation,” which did not single out the Committee’s speech (e.g., Nativity Scene display), but rather treated “all potential displays equally.”
Second, the Court found that the Ordinance was narrowly tailored to serve two significant governmental interests – preservation of aesthetic qualities of Palisades Park (prevention of obstruction of view of the ocean) and conserving the City’s resources that would be necessary to administer the Winter Display’s lottery system.
Lastly, the Court found that the Committee had at its disposal “many alternative avenues” to communicate its religious message, including, erecting its unattended nativity scenes on private property, erecting one-day, attended displays, leafleting, preaching, holding signs, and caroling.
The Court summarily dismissed the Committee’s allegation that the City violated the Establishment Clause. The Court found that the Committee could not demonstrate that the City was motivated by an impermissible purpose.
The recent decision illustrates the factors a public municipality must consider before restricting speech at a public forum. Although a number of other restrictions exist, where a public entity intends to effectuate a place, time, and manner restriction, it must ensure that the restriction is content neutral, tailored to serve a significant government interest, and allows for an alternative avenue of communication.