Private Religious Speech on Public Property

Religious speech by private citizens or groups on public property is protected by the free speech and free exercise clauses of the First Amendment. While the free exercise clause may provide somewhat different or greater protection for worship services and other ritual speech on private property, cases involving private religious speech on public property generally have been decided under the free speech clause. They most often address whether religious speakers have the same access to public property as nonreligious speakers.

Government may not exclude private religious speech from public places or programs solely because that speech is religious or contains a religious perspective. Content based restrictions on religious speech in traditional or designated public forums are subject to strict judicial scrutiny. Such restrictions are constitutional only if they are justified by a compelling governmental interest and if they are the least speechrestrictive means available to achieve that interest.

Traditional public forums are public places traditionally open for private expressive activities, such as streets, sidewalks, and parks. Designated public forums include government property or programs that the government has opened for use by the public for expressive activities. The First Amendment generally requires that private religious speakers be treated no differently in traditional or designated public forums than private nonreligious speakers. The Supreme Court held in Widmar v. Vincent, 454 U.S. 263 (1981), that a state university that makes its facilities generally available to student groups may not deny equal access to student groups desiring to use the facilities for religious worship and discussion.

Granting religious speakers access to traditional and designated public forums on terms equal to those of nonreligious speakers does not constitute an unconstitutional establishment of religion. The Court in Widmar rejected the university’s argument that it had a compelling interest in excluding such groups to avoid violating the establishment clause. By opening a forum to a broad class of religious and nonreligious student groups, the university would remain neutral, not placing its imprimatur on any particular group or ideology. The Supreme Court followed the same reasoning in Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990), which upheld the federal Equal Access Act. The act prevents any public school that receives federal funding and opens its facilities to noncurricular student groups from denying equal access to student religious groups.

The Court reasoned that the act did not advance or endorse religion in violation of the establishment clause because secondary school students can understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis. Courts have taken a similar approach in cases involving the private placement of religious symbols on public property. In Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995), the Supreme Court held that a state could not deny the Ku Klux Klan permission to erect a cross in a state-owned plaza surrounding the state capitol that was used for other secular and religious public speeches and displays. The plurality and concurring justices agreed that the display did not create the perception that the state was endorsing religion, despite its close proximity to state capitol.

Even if the government property or program is not a traditional or designated public forum, excluding religious speakers may amount to impermissible viewpoint discrimination. Government may limit speakers or subjects in a nonpublic forum (or limited public forum) to preserve the purpose for which the property or program was created only if the restrictions are reasonable and viewpoint neutral. The Supreme Court in Lamb’s Chapel v. Center Moriches Union Free School District (508 U.S. 384, 1993) held that a school district could not deny a private religious group permission to use its facilities after hours to show a film series teaching Christian family values when other social and civil organizations were permitted to use the facilities for their expressive activities. The Court assumed that even if the after-hours program was not a public forum, the ban on religious speech was unconstitutional viewpoint discrimination because it barred religious perspectives on family and child-rearing issues but allowed secular perspectives. As in Widmar, the Court rejected the school’s establishment clause defense because no endorsement or support could be inferred from the state’s neutral treatment of religious and secular viewpoints.

Religious speech also was considered a viewpoint in Rosenberger v. Rector and Visitors of the University of Virginia (515 U.S. 819, 1995). The university used student activity fees to pay the costs of printing extracurricular student-edited publications, but refused to fund a student Christian magazine. The Supreme Court held that the funding restriction constituted impermissible viewpoint discrimination because it disfavored student publications with religious perspectives, while encouraging a diversity of views from secular student publications. The university would not violate the establishment clause if it paid the printing costs of the student religious publication because religious and nonreligious speakers would be treated evenhandedly, the students’ religious speech could not reasonably be attributed to the school, and no state funds would go directly to the magazine.

Government may not avoid viewpoint discrimination by adopting facility-use programs that permit private religious speakers to hold meetings for discussion of secular matters from a religious perspective, but deny use for religious worship or instruction. The Supreme Court in Good News Club v. Milford Central School (533 U.S. 98, 2001) rejected such a distinction as constitutionally insignificant. The school offered a limited public forum for the use of its facilities after hours, but denied the use of such facilities to a private Christian children’s club on the ground that their meetings involved religious worship, instruction, and prayer. Following Lamb’s Chapel and Rosenberger, the Court held that the school discriminated against the religious group because of its religious viewpoint.

Private religious speech on public property generally enjoys the same constitutional protection as private nonreligious speech. To exclude such speech simply because of its religious nature or content constitutes impermissible subject or viewpoint discrimination under the free speech clause. While giving private religious speech preferential access to a public forum may violate the establishment clause, the Supreme Court repeatedly has rejected the claim that granting religious speakers equal or neutral access to a public forum constitutes an establishment of religion.

E. GREGORY WALLACE

References and Further Reading

  • Brownstein, Alan, Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality, Journal of Law & Politics 18 (2002): 119.
  • Gey, Steven G., When Is Religious Speech Not ‘‘Free Speech?’’ University of Illinois Law Review (2000): 379.
  • Laycock, Douglas, Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, Northwestern University Law Review 81 (1986): 1.

Cases and Statutes Cited

  • Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990)
  • Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995)
  • Good News Club v. Milford Central School, 533 U.S. 98 (2001)
  • Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)
  • Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)
  • Widmar v. Vincent, 454 U.S. 263 (1981)
  • Equal Access Act, 28 U.S.C. } 4071

See also Public Forum Doctrines; Religion in Public Universities; Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); Viewpoint Discrimination in Free Speech Cases

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