Freedom From Religion Foundation v. Abbott, et al., No. A-16-CA-00233-SS (W.D. Tex.) October 13, 2017.

The Freedom From Religion Foundation (FFRF), active in advocacy for church-state separation and in promotion of non-theism, sought and obtained a permit from the Texas State Preservation Board to erect a secular display in the state Capitol building, to be shown on several days during December, 2015. FFRF created a “Bill of Rights Nativity” celebrating its adoption on December 15, 1791.  FFRF’s display depicted historic figures surrounding a manger cradling the Bill of Rights.

FFRF’s display disconcerted Texas’ governor, who implored the State Preservation Board to remove FFRF’s exhibit, urging that the celebration of the Bill of Rights failed to promote a public purpose, as required of Capitol exhibits by the state’s administrative code.

Although he acknowledged the satirical nature of FFRF’s Bill of Rights Nativity, the governor expressed his offense and demanded its removal, a request that was complied with on day before the scheduled expiration of the exhibit.  

The Federal District Court for the Western District of Texas has concluded that the removal of the FFRF display constituted viewpoint discrimination as a matter of law. The court refused to countenance the argument that FFRF had waived any First Amendment rights, where no such provision could be found in the documents reflecting the exhibit arrangement, nor could waiver of such central rights be implied.

While the government may restrict speech within a limited public forum, those restrictions must be reasonable in light of the forum’s purpose, and must not discriminate on the basis of viewpoint, the court noted.  Even if the government might have had legitimate reasons to exclude FFRF’s exhibit, that does not preclude examination of the existence of viewpoint discrimination.  A legitimate government purpose cannot serve as a cloak with which to clothe viewpoint discrimination.

The court found unavailing the defendant’s rationalization that removal was necessary because FFRF mocked others’ views, thereby disserving the public good of encouraging diverse viewpoints.  As the Supreme Court recently found refusal to grant trademark registration to “offensive” material to be viewpoint discrimination, the public expression of ideas may not be prohibited because some found them offensive.  Matal v. Tam, 528 U.S. ___ (2017).  As giving offense is a viewpoint, removing FFRF’s exhibit because it might offend is viewpoint discrimination.  

The court that defendants had presented no evidence supporting a ruling that as a matter of law the government did not have as its purpose the silencing of secular speech. Summary judgment on defendant’s’ Establishment Clause defense was denied.

Of necessity a public purpose would have been found in order to approve the installation of the FFRF’s exhibit, the court noted, calling into question the governor’s purpose in ordering its removal.  The law prohibiting viewpoint discrimination was well established at the time of the FFRF episode.  Yet as questions remained concerning the governor’s engagement in viewpoint discrimination, the court declined to rule that qualified immunity would be available to the governor.

The FFRF, bearing the burden of establishing the inapplicability of qualified immunity to the Establishment Clause claim, failed to submit evidence to support its position, requiring entry of judgment for the governor on that issue.

Where protective orders routinely shield high level government officials from being obliged to provide deposition testimony, in this case the governor is individually a defendant having knowledge of the case unavailable elsewhere.  Taking the governor’s testimony is allowable, but will be limited to one hour.

In sum, the existence of FFRF’s free speech claim has been determined in FFRF’s favor, the governor has qualified immunity concerning the establishment clause claim, but not the free speech claim.  Establishment Clause claims against the governor and director of the State Preservation Board are to proceed as well as the free speech claim against the governor individually.

Freedom from Religion Found., Inc. v. Abbott (W.D. Tex., 2017)