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School Libraries in Peril

Guest blog by Shireen Campbell and Skylar McVicar

Fueled by legislative actions in multiple states, wholesale objections to school library books have risen dramatically in the past few months.  News stories document books covered with brown paper, empty shelves, and even proposals to defund entire state library systems.  If a book includes a queer character who dares to live happily or shows that policing practices may vary depending on one’s skin color, the book has likely landed on a list of objectionable materials.

Current and seemingly successful statewide legislative efforts to edit school library content mark an alarming escalation in attempts to control what reading children can access at the local school district level.  How are the censors making such headway when multiple court cases have established that school library collections are crucial to the unimpeded exercise of First Amendment rights?

As held by the Supreme Court majority in the landmark 1982 Board of Education, Island Trees Union Free School District No. 26 v. Pico, “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” School libraries are a crucial site for access to new ideas, and, as held in Minarcini v. Strongsville City School District (1976), for both dissemination and discussion of these ideas.

The right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.

(Union Free V. Pico)

Given prior court decisions that upheld student First Amendment rights to receive information through school libraries, we question if the recent wave of legislative actions in pursuit of sanitizing collections is likely to be deemed unconstitutional.  One potential answer is to analyze what actions and opinions are common to school boards that previously attempted and failed to limit library content in four precedent-setting cases. In each case, the board’s actions impeded student recipient’s “right to receive” (Union Free V. Pico) by

  • Ignoring existing policy around objections to materials in a classroom or library context
  • Insisting that opinion, hearsay, and/or misinterpretation of literature or its pedagogic purposes outweigh any expert knowledge
  • Advocating a return to or defense of traditional “universal” values over cultural change

For example, in Minarcini, a 6th Circuit Court of Appeals case from 1976, a school board member complained about Heller’s WW2 classic Catch 22 and two Kurt Vonnegut novels. In response, the school board created a committee to review the books and met with a faculty and citizens committee, both of which argued for the inclusion of the books in the library.  However, the school board ignored the recommendations of the committees they created and removed the books anyway. 

Two decades later, in Case Vs. Unified School District (1995), the Missouri district had no policy for assessing book donations.  When the groundbreaking lesbian teen romance 1982’s Annie On My Mind, and another book were donated to high school libraries in the district, board members criticized the “homosexual” content. The school board then created a policy for book donations that included a review committee and asked them to examine the donated books.  Subsequently, the review committee cited favorable reviews of Garden’s novel and recommended its inclusion.

Yet, dismissing the expert knowledge and the media specialists they had consulted, the board voted to remove the donated novels because homosexuality was both “sinful in the eyes of God” and unconfirmed scientifically as “a normal or genetic way of life.”  Referencing case precedent (namely Union Free V. Pico), the U.S District Court found that the school district removed the novel because they disagreed with the ideas it contained and unconstitutionally sought to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

Threatened by societal change, board members in all four court cases repeatedly promoted a conservative agenda in their grounds for complaint. Many of the nine books involved in the 1982 Pico case have minority authors, and others have countercultural content, highlighting a range of American experiences. The board condemned these books because some “contained profanities, some were sexually explicit, and some were offensive to racial, religious or ethnic groups.” In so doing, the Board promoted a “conservative educational philosophy” and resistance to including underrepresented voices.

A more recent court case, Counts v. Cedarville School District (2003), focused on the global phenomenon of Harry Potter.  Board members objected to the series’ depiction of “disobedience and disrespect for authority,” behavior which occurs often in the world of young adult literature (and young adults) because they feared it would lead to “juvenile delinquency” or a Columbine.  As the Court notes in its decision, these “speculative apprehensions: were based on no facts.”

[None] of the three Board members was aware of any actual disobedience or disrespect that had flowed from a reading of the Harry Potter books. . . . Such speculative apprehensions of possible disturbance are not sufficient to justify the extreme sanction of restricting the free exercise of First Amendment rights in a public school library.

Counts  v. Cedarville School District

Presuming similar biases in an effort to limit access to books that question adult wisdom and a conservative status quo, current state actions would seem likely to meet the same fate in court.  In a subsequent post, we will explore the Parental Rights in Education legislation in Florida and consider to what extent this seems likely to falter in the face of case precedent in favor of the First Amendment in such settings.


About the Authors

Shireen Campbell is a professor of English and Educational Studies and Director of the First Year Writing Program at Davidson College.

Skylar McVicar is a senior Politics, Ethics, & Religion interdisciplinary major at Davidson College and will be attending Duke University School of Law in the fall.

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Matal v. Tam encourages diversity controversially. As a teen, Simon Tam experienced racially motivated bullying due to his Chinese heritage. He learned to counter this bigotry through humor and the reappropriation of ethnic slurs. When he started his band as a bassist, Simon wanted to call it The Slants. However, when Tam attempted to trademark the band’s name, they ran into the 1946 Lanham Act, which, as the chief trademark law in the US, prohibited trademarks that “disparage” any person or group. As a result, the US Patent and Trademark Office denied Tam’s application for the name. Tam sued because this violated his First Amendment right to free speech. 

The case went to the US Supreme Court, with the court ruling in favor of Tam. The Court held that while the name is a bad word, the content doesn’t merit a restriction. In other words, we must tolerate “the thought that we hate.” Simon Tam’s case is a benefit to diversity in the public discourse. 

Simon Tam in front of the Supreme Court, courtesy of Simon Tam.

Tam’s case is controversial. Is a trademarked racial slur appropriate for the name of an organization? The Court says it may be, or at least it is permissible to be. But controversy is a welcome sight for diversity. Controversy brings dialogue and discussion on the merits of a particular action or enterprise. Dialogue is inherently diversity-improving. Talking and implementing feedback from one another is how we progress. But not everyone has the same perspective on an issue. We all have different experiences, even though the “what” or “how” of any experience may seem the same. Dialogue is how we understand these differences in sameness. 

Dialogue arises from the Tam case through the merits of the individual case itself and by imagining other cases. For example, imagine a band named the “Redskins” or the “Wet-backs.” I don’t like these names or words, I find them racist and deplorable, but that doesn’t mean what they invoke is out of the marketplace of ideas. In fact, it is because of what they invoke that may make them worthy of discussion. This naming practice is similar to shock-jocking on the radio. A controversial opinion or statement is made, and that gets people talking. When people talk about their experiences, they realize that not everyone shares the same experience. This action is the expansion of diversity through dialogue. And this is what these band names do. This is what Simon Tam and the Slants have accomplished. 


About the author

Steven Santiago is currently an intern at the First Amendment Museum and a 4th-year student at the University of Maine studying Psychology, Sociology, and Legal Studies. He is a community organizer on campus, working with students and organizations to increase their political agency in Maine. His current ambition is to achieve a Master’s in Social Work, where he can further develop his organizing skills.


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SEPARATION OF CHURCH AND STATE: OUR PRECIOUS LAW

Guest blog by Jeffrey Cooper

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

United States Constitution, 1st Amendment

Our Founding Fathers lived in a time when religious wars and persecutions in Europe, and in England in particular, were recent history. To avoid that happening here, they declared emphatically that our new country would have no state religion.

I expect I speak for lots of Jewish Americans when I say that we are increasingly unsettled these days by the rise of Christian Nationalism and the inroads this is making into our national politics. Separation of Church and State is the fundamental principle that assures us that we are accepted fully as Americans. Yet I have read on Politico.com that a majority of Republicans would approve of Congress declaring us to be a Christian nation, knowing that such a move is in violation of the Constitution they claim to revere. In statehouses and school boards across the nation, laws and policies being introduced under the moniker of “religious liberty”’ seek to foist religious views upon what many consider a secular society – from attitudes toward gender non-conforming people to whitewashed views of history regarding racial injustice.

Jews are alarmed. Other dangerous baggage comes alongside this development, notably anti-Semitism, which many Christian Nationalists find justified in their sacred writings. Any wonder that anti-Semitic incidents are on the rise simultaneously with the rise of this movement? And it’s not just us. All minorities are imperiled.

Let’s look at an ongoing real-time issue. Everyone is talking about abortion these days, about the right to privacy, when life begins, and due process in the 14th Amendment. But for me, this is clearly a First Amendment issue. Since we have no scientific definition of what “life” actually is, we cannot have a scientific definition of when it begins. The assertion that life begins at conception is a purely religious construct and that of one particular religion. By adopting legislation stating that life begins at conception or a detectable heartbeat, the State is adopting the religious view of one particular religion and imposing that upon non-adherents. This is emphatically unconstitutional. I fail to understand why this is not the basis upon which abortion rights are argued. Some Supreme Court Justices call themselves “originalists.” The First Amendment provides an originalist argument. Prohibiting abortion is not the province of government, and that includes at the state level.

I don’t mean to present a singular “Jewish view on abortion” because on this topic, and every other topic under the sun, Jews have a wide diversity of opinions. Yet we are still family. Likewise, we as Americans have a wide diversity of religious affiliations and religious beliefs, yet we are still one nation. This is made possible by the First Amendment to the Constitution, and specifically, the first clause of it, which declares that we do not have a State religion and the government cannot adopt the precepts of any particular religion as that of all of us. We all are guaranteed the right to practice our own religious practices without government constraint. For me, this is where our “right to privacy” is enshrined in the Constitution. It is precious, and we must do everything in our power to protect it.

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When a religious identity causes the minority to live as strangers in their own land

Guest blog by Rabbi Ron Fish

We the People. 

The opening words of our Constitution evoke a kind of civic faith in the fundamental condition for our liberty. We have the right to make our own laws, to govern and control our own lives and destiny. No sovereign or king can decide for us. Because ‘We’ are free.  

But what does such freedom mean when one community is excluded from ‘We the people?’ When a religious identity causes the minority to live as strangers in their own land?

From the earliest moments of the American experiment, the small Jewish community in the U.S. asked these questions. We were inspired by the promise of freedom and inclusion. We were buoyed by the idea that this would be a nation where all people are equal. But we wondered: Did the society invoked in the preamble have room for us? Or was the Framers’ use of the first-person plural ‘We’ a very specific invocation of an idea that was all too familiar to Jews through millennia? 

We had been invited to join in commerce and community in kingdom after kingdom. We lived side by side with our neighbors for generations.  And then, when the majority soured on our presence, citing some conspiracy or fear, we were suddenly perceived as the source of pollution in the land. We were attacked for causing heresy or disease, economic disaster, or disloyalty. We were seen as the great underlying cause for the failure of a king or army, of a national idea or faith. It did not matter how long we had lived in a land. After years of brutality and violence, nations began to expel Jews from lands that they had lived in for centuries. Often the kings and bishops tried to avoid outright removal. The Jews, after all, had become indispensable. Even so, in the end, Jews were seen as inherently foreign. When ‘the people’ rose up and made the lines of identity clear, Jews were always left outside. 

Majorities can rule by subjugating the minority. In fact, the American system made room for slavery, for genocide and white supremacy because the unlimited power of the majority was seen as freedom itself.

But built into the American system since the first Congress was a dream for a society in which all peoples could aspire to be fully included in ‘We the People.’ The Bill of Rights begins with the most transformative claim. Democracy is not only an expression of majority rule. It is also built on an infrastructure of minority rights. Freedom includes the central claim that, here, all people belong. 

While the First Amendment seemed to guarantee religious freedom, in the first decades of the Republic, it did not. Many states had religious tests for statewide office holders. And almost all states required some belief in basic Christian ideas in order to serve in government. This was understood to be permitted under the Constitution since the Bill of Rights had only precluded Congress from limiting religious liberty or establishing a national church. Each State was free to act according to the will of its majority. Yet, President Washington’s letter to the Jewish community of Newport, RI, in 1790 was a prophetic view of a still unrealized future. The United States, he promised, would “give to bigotry, no sanction, to persecution no assistance.” The Jews would be at home here. Quoting the Hebrew Bible, Washington saw an America where all belonged, “each man under his own vine and fig tree. 

The expanding promise of the First Amendment drew millions of Jewish immigrants to these shores. As our nation has grown more diverse, the Jewish community here has thrived beyond the dreams of any diaspora community in history. But this story of success and progress is not guaranteed. The chants of “blood and soil“ and “Jews will not replace us” in Charlottesville, Virginia, came from a deeply rooted vein in American culture. Some people still cling to the idea that democracy is consistent with exclusion, racism, and antisemitism. They continue to define “We the people” in specific ethnic and religious terms. Without apology, their version of the American people must be white and Christian. 

And the struggle extends from the fevered chants to the courts themselves. While no one is seeking legal approval to persecute religious minorities, in recent years, the Supreme Court has undermined religious freedom by permitting Christian prayer at government meetings and by public school football coaches on the playing field by allowing the government to display giant religious symbols, like a 40-foot Latin cross in Bladensburg, Maryland, and by siding with those who have used Christianity not simply as a shield for faith, but as a sword to discriminate against others, including people of minority faiths or no faith. 

When the prohibition on the state establishing religion is set aside, even for the benefit of some people of faith, it is a danger to everyone, especially Jews and other people of minority faiths or no faith. 

Anti-Defamation League (ADL) has been fighting against the defamation of the Jewish people and for just and fair treatment for all for more than a century. We will continue to lift up Washington’s vision of the inclusive America which has been the greatest gift of the Bill of Rights. In order for the democracy we believe in to thrive, everyone must have an equitable place in a diverse and truly free America. 

A place where we all belong. 

Rabbi Ron Fish is the Eastern Division Director of Antisemitism Education and Advocacy at ADL. He has served congregations in the northeast for 25 years, most recently he was Senior Rabbi at Temple Israel in Sharon, MA. He currently serves on the Executive Committee of the Massachusetts Board of Rabbis. 

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Perspectives on Holiday Displays and the First Amendment

‘Tis the season for First Amendment controversy. Every year it seems there is some form of public debate around religious holiday displays and how the First Amendment does or doesn’t protect them. You may have heard or even wondered about “the war on Christmas” and “why we can’t say ‘Merry Christmas’ anymore.”

The First Amendment guarantees the right to religious expression, protecting your right to pray, preach, worship, and celebrate your religion publicly or privately. Only when the government becomes entangled in a religious celebration are constitutional rights violated. So we asked three attorneys to clear the air by sharing their perspectives as well as a bit of history on the First Amendment and holiday displays. Read their articles below.

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Seasonal Displays: Religion and Reindeer

Guest blog by Herbert G. Grey

As the calendar turns over to December, when 97% of Americans celebrate Christmas in some manner, questions invariably arise about the propriety of seasonal displays in public spaces. Many focus on and celebrate the religious significance of Christmas. The thoughts of most turn to “the holidays.” Still others with a “separation of church and state” mindset prefer to sanitize public places from any vestige of religious expression, despite the religious origins of many “holidays.” The variety of these perspectives reveals why we have a First Amendment in the first place. First Amendment law upholding the propriety of seasonal displays on and around government property is fairly well-established. Whether people cherish Christmas or relish the sights and sounds of “the season,” they will find the United States Supreme Court is not a grinch. Those who favor a more strict-separationist, secular perspective under the Establishment Clause can find solace in knowing that seasonal religious expression generally must be accompanied by secular elements or have some underlying historical background or tradition.

The U.S. Steel Creche, December 29, 2006. CC BY-SA 2.5

A LITTLE LEGAL & HISTORICAL BACKGROUND

Protection of Religious Speech. The Supreme Court has consistently said, “Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” In a later Ten Commandments monument case, the Supreme Court affirmed that there is “no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”

Text, History, and Tradition. It is no secret that religious expression has long been a feature of government proceedings and expression in public spaces. In Church of the Holy Trinity v. United States (1892), the Supreme Court recited dozens of historical examples of religious influence on American government. Most people are familiar with images of crosses at Arlington National Cemetery, cross-shaped war memorials, and Ten Commandment monuments in public places, most of which have been upheld. McCreary County v. ACLU (2005) disallowed a Ten Commandment monument because it had solely a religious purpose in being placed where it was on public property.

 “Legislative” prayers to open official proceedings at all levels of government have also been approved as “part of the fabric of our society.” More recently, in Town of Greece v. Galloway (2014), the Supreme Court upheld prayers to open city council meetings based on “tradition” as long as it “does not coerce participation by nonadherents.”

Whose Speech is It? The starting point is to consider whether seasonal displays are private speech or government speech. Since the First Amendment regulates only government restrictions on free exercise of religion or free speech, there is generally no problem with any federal, state, or local government allowing private expression in public places on the same basis as other private speech. At the same time, the Establishment Clause prohibits the federal government (and later state and local governments through the Fourteenth Amendment) from sponsoring or approving one religion- or lack of religion- over another. 

The Lemon Test. When the Establishment Clause may come into play, so does the infamous “Lemon test.” Lemon v. Kurtzman (1971) required proof of government action having a secular purpose, a primary effect that “neither advances nor inhibits religion” and not fostering “an excessive government entanglement with religion” to avoid Establishment Clause problems. The Lemon test has been the subject of criticism in the Supreme Court and elsewhere for some time, but it was recently put in the grave for good in Shurtleff v. City of Boston (2022) (the “Boston flagpole” case) and Kennedy v. Bremerton School District (2022).

HOW DOES THIS APPLY TO SEASONAL DISPLAYS?

Since most or all seasonal displays have historically been government-owned and operated, they are typically considered government speech, historically implicating government establishment of religion under the “Lemon test.”  Three cases illustrate how the law concerning seasonal displays has developed:

  1. Lynch v. Donnelly (1984) considered a government display that included a nativity scene, a Santa Claus house, reindeer, a Christmas tree, candy-cane poles, and a “Seasons Greetings” sign. Thus was born the famous “two reindeer” (or “three reindeer”) rule whereby government displays are not impermissibly advancing the Christian religion if they celebrate the “holiday season” by including other secular symbols; 
  2. County of Allegheny v. ACLU (1989) involved a long-time private nativity display owned by a private religious organization on the grand staircase in the county courthouse. The only other private expression given the same opportunity was a Jewish menorah accompanied by other secular symbols. The Supreme Court said that the nativity display violated the Establishment Clause because it featured Christian religious expression and nothing else, but the Jewish display did not violate the Establishment Clause because it included other secular symbols along with religious symbols; and
  3. Pleasant Grove v. Summum (2009) arose out of a display whereby a city government, over time, allowed multiple privately donated monuments in a public park. The City retained final authority over the displays and had the right to reject others because the existing displays were varied, some were of long-standing origin, and together the displays had religious, historical, and secular components. 
CONCLUSION

In an era when diverse views often divide, seasonal displays with religious content represent the essence of the First Amendment as it was intended, an enduring example of bringing people together in some semblance of unity and shared experience for everyone while acknowledging our differences. 


About the author

Herbert G. Grey is a lawyer in private practice in Beaverton, Oregon, with over 25 years of experience concerning First Amendment and religious liberty matters. He was admitted to the Oregon State Bar in 1981 and is also admitted to practice before the U.S. District Court for Oregon, the Ninth Circuit Court of Appeals and the United States Supreme Court. He is a member of the Board of Directors of Christian Legal Society and serves as chairperson of the committee overseeing CLS’ Center for Law & Religious Freedom.

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Santa is Welcome, but Be Careful About Religious Displays

Guest blog by Donald Scarinci

Santa Claus can always come to town during the holidays, but the religious symbols accompanying the holiday season are not always welcome. In most cases, the First Amendment does not play Scrooge to festive decorations. However, like many constitutional issues, court decisions have made the law a bit murky. 

While Christmas trees, colored lights, reindeer, and snowmen will always get the green light, there is no clear answer regarding religious displays, such as nativities and menorahs, on public property. However, based on existing precedent, a holiday display featuring symbols from different religions and secular symbols of the holidays is likely constitutional. 

Christmas display at the Osborne Family Spectacle of Dancing Lights at Disney’s Hollywood Studios, Orlando, Florida. 2015. Chad Sparkes.

The Establishment Clause

The First Amendment’s Establishment Clause governs most constitutional issues involving holiday displays. The Establishment Clause provides:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 

It is a common misconception that the Constitution requires a wall of separation between church and state. As the U.S. Supreme Court explains, the Establishment Clause does not “require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” 

In short, this means that municipalities and other public agencies can’t erect holiday displays favoring one religious sect over another or conveying an endorsement of religion altogether. However, government entities are allowed to incorporate religious symbols into holiday displays.

The National Menorah near the White House in Washington, D.C. Photo by Tim Brown

The Incorporation of Religion into Holiday Displays

The constitutionality of government-erected holiday displays depends on the circumstances, such as the display’s context and content. Some will pass muster, while others will not. 

Courts have acknowledged that while Christmas trees have their roots in Christianity, they are now largely considered secular. As explained by the Supreme Court, “Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas…Numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs, and when the city’s tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith.”

As for decorations with clear ties to religion, such as a menorah or crèche, the Supreme Court has developed a few legal tests. For example, in Lynch v. Donnelly, 465 U.S. 668, 686 (1984), the Supreme Court upheld the constitutionality of a nativity display on government property because it was a part of a larger holiday display that included various secular symbols.

As the Court explained: 

It would be ironic . . . if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so “taint” the city’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings. 

The Supreme Court’s subsequent decision in Allegheny v. ACLU, 492 U.S. 573 (1989), demonstrates how much context matters, as it reached separate conclusions on two challenged holiday displays. First, the Court ruled that a crèche inside a Pennsylvania courthouse, which also featured the words “Glory to God for the birth of Jesus Christ,” had the “unconstitutional effect of conveying a government endorsement of Christianity.” 

In reaching its decision, the Court relied on the “endorsement” test advocated by Justice Sandra Day O’Connor in her concurrence in Lynch, under which government endorsement or disapproval of religion is unconstitutional. “No viewer could reasonably think that it occupies this location without the support and approval of the government,” the Court wrote. “Thus, by permitting the ‘display of the crèche in this particular setting,’ the county sends an unmistakable message that supports and promotes the Christian praise to God that is the creche’s religious message.” 

However, the Court further held that not all religious displays run afoul of the Establishment Clause, emphasizing that each display must be evaluated as a whole. For example, with regard to a second display featuring a menorah, the justices held that the addition of Christmas trees and other secular holiday decorations rendered it constitutional. According to the Court, the “city’s overall display must be understood as conveying the city’s secular recognition of different traditions for celebrating the winter-holiday season.” 

Lower courts have reached similar conclusions. In ACLU v. Schundler168 F.3d 92 (3d Cir. 1999), the Third Circuit Court of Appeals considered the constitutionality of two Jersey City holiday displays. The first, which featured a menorah and a Christmas tree, was forbidden. A modified display, however, did pass muster. It contained not only a crèche, a menorah, and a Christmas tree but also large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the City throughout the year to celebrate its residents’ cultural and ethnic diversity. According to the Third Circuit, the modified display was “indistinguishable in any constitutionally significant respect” from the displays upheld by the Supreme Court in Lynch and Allegheny.

Key Takeaway

Not surprisingly, questions about the constitutionality of holiday displays arise every year. Complaints from the public (and the occasional lawsuit) are also not uncommon. While the Supreme Court has not established a bright-line rule, its decisions confirm that displays that exclusively or prominently display religious symbols will likely run afoul of the First Amendment. On the other hand, an eclectic mix of holiday favorites like reindeer and Christmas trees, along with religious items, is generally a winning combination of holiday cheer. 


About the author

Donald Scarinci is the Founding Partner of Scarinci Hollenbeck. He writes and lectures extensively about Constitutional Law and edits the award-winning, The Constitutional Law Reporter. His practice focuses on representing public institutions and businesses that interact with government.

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The First Amendment and Christmas Displays

Guest blog by the Christian Law Association

Religious liberty is an important part of the heritage of the United States of America.

A Puritan rebuking children for picking holly during the holiday season. Hulton Archive/Getty Images

The British settlers in the thirteen original colonies remembered how the official religion of England had sometimes drastically changed after the coronation of a new monarch and how those who refused to comply with the new official church were jailed—and even martyred—for practicing their faith. As the Bill of Rights was written, lawmakers were careful to ensure that the government would not be able to force the citizens to be members of a state-controlled church, and religious liberty became part of the fabric of America.

Just as the story of America is complex and multi-faceted, Christmas, as we now know it, is a combination of many traditions. Christmas is so ancient that we will never know how its many customs were derived. For example, the Christmas tree became popular in England and America after Queen Victoria’s husband, Prince Albert, introduced the Paradise Tree to the palace— a common custom in his homeland of Germany. Other people note that evergreen trees were used in the ancient celebrations of the winter solstice. 

Illustration of Queen Victoria and Prince Albert and their children gathered around their Christmas tree.

Getty Images

During the Christmas season, Christians focus on the birth of Christ. Others downplay the birth of Christ and focus on exchanging gifts and the friendly face of Santa Claus. The combination of all these items has created unique legal questions. For example, “If Christmas is a Christian holiday, can nativity scenes be displayed in town centers, or do such displays mean the government is officially supporting one religion over another?”

Christmas at Your Home or Business

Private citizens are allowed to celebrate Christmas’s religious aspects in their homes and businesses. No laws or court cases forbid citizens from celebrating a Christ-centered Christmas at home.

In Public Forums

Religious Christmas displays are perfectly legal if a public space has been made available to everyone. For example, if a city or village decides to allow Christmas displays in the community park, Christian displays must be allowed, just as secular displays must be allowed. The government cannot include one group as it excludes another.

In the case Grace C. Osediacz v. City of Cranston (2005), the court ruled that the city of Cranston, Rhode Island, had not violated the First Amendment by allowing both secular and religious Christmas displays on government-owned land that had been opened as a public forum.

In Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), the United States Supreme Court clearly ruled in favor of allowing religious displays in public forums.

The court held:

Respondents’ religious display in Capitol Square was private expression. Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince. (Id. At 760 [internal citations omitted]).

This case makes clear that private citizens, indeed, are allowed to erect religious displays on public property if

  1. The property is a public forum where the government has permitted a wide variety of expressive conduct
  2. And there is a disclaimer sign to inform the public that the display is sponsored by a private citizen and is not being endorsed by the government.
Christmas Displays in Government Buildings

In the case of lynch v. Donnelly, 465 U.S. 668 (1984), the United States Supreme Court ruled that religious displays may indeed be part of Christmas displays on government property. However, these Christmas displays need to include both sacred and secular elements. This case created a legal idea sometimes humorously referred to as “The Three Reindeer Rule.” If there is a Christian manger scene, there might also need to be three reindeer from Santa’s Village. If there is a statue of Baby Jesus, there might also need to be a statue of Jolly Old St. Nick.

Knowing the Law

Many citizens do not realize that the Supreme Court has held that Christmas displays—even on government property—need to include a variety of Christmas themes. Still, the religious themes of Christmas have not been expelled from the public square. In some cases, citizens may need guidance from experienced attorneys who can help them navigate the complexity of these issues. However, Christians in the United States still enjoy the freedoms of the First Amendment.

Merry Christmas!


About the author

Since 1969, the Christian Law Association (CLA) has been providing free legal assistance to Bible-believing churches and Christians who are experiencing difficulty in practicing their religious faith because of governmental regulation, intrusion, or prohibition in one form or another.

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For those looking to disrupt, to make good trouble, or to create social change, remember this important principle: movement creates friction. And, perhaps no civil liberty creates more friction than freedom of speech.

It isn’t easy to present unconventional ideas when the world stubbornly prefers the status quo. Being a catalyst means you will upset someone’s norms. Even someone who shares the same values as you might disagree with your tactics. But here’s a universal law that is shared in the world of science, art, and activism: friction isn’t always a bad thing.

Friction can be a useful force to slow you down so that you exercise more caution. Whether you are slipping on ice or self-conceit, an opposing force can prevent a fall.

Friction can also be used to generate heat and electricity. You can get warmth if you rub your hands together quickly, in the same way that rough opposition can ignite support in important ways.

Friction can also be used to test the strength of something. In the same vein, it is through challenge that the resolve and effectiveness of your ideas will be forged.

Of course, friction isn’t always pleasant. But as a famous African proverb states, “Smooth seas do not make skillful sailors.”

Freedom of expression sometimes creates friction with other people, but it almost certainly guarantees that friction is present when it comes to challenging the government. And it is in the best interest of the government, as it is in the people whom it serves, to do everything possible to protect that right. After all, dissent is patriotic. And when it comes to protecting our liberties, it is important to distinguish the difference between what we need and what we like. We like to hear things that we already agree with—but we need to be able to engage in civil discourse without worrying about backlash from the government. 

It’s often unfortunate that debates around the First Amendment are often framed in the most extreme of circumstances: the speech of political candidates, how people perceive the reach of social media, the display of confederate flags on state property, and so on. However, when political issues cater to and are framed by the outer edges, the deepest impact is felt by the middle. While people may fall across the spectrum, there’s a general consensus that racism and hateful ideas shouldn’t be tolerated, so it’s less of a conflict of values and more of a disagreement on the possible solutions. However, my own story is a cautionary tale against trading in civil liberties in exchange for comfort or convenience. 

Simon Tam in front of the United States Supreme Court. Simon Tam

For years, I was engaged in a deep fight for the right to register the trademark for my Asian American band, The Slants. But therein lies the problem: The Trademark Office believed that our ethnicity provided the context to turn an ordinarily neutral word, “slant,” into a racial slur. Evidently, someone in the government didn’t like our use of the term. Neither our intention to reappropriate it nor our community’s support for it mattered—so much so that they dismissed any legitimate evidence that disagreed with their decision. 

The government’s conviction on this was strong enough to justify suppressing the protected speech of multiple traditionally marginalized communities. They allowed the Trademark Office to use false claims in their legal brief without accountability. They were even allowed to justify the use of my racial and ethnic identity as the primary reason for connecting us with a racial slur. All because the government didn’t like what we had to say. We were creating too much friction.

The stubborn pushback from the Trademark Office wasn’t all that surprising – government offices often have the incentive to maintain the status quo, to reduce friction, so to speak. Eventually, that case landed before the United States Supreme Court, where we won unanimously because of the First Amendment. While the case eventually ended in victory, it took eight years of my life and cost countless resources—years I’ll never get back. No one should ever have to go through something like that – but that’s what happens when the power of the censor rests in the hands of the government. 

We shouldn’t let the fear of the uncomfortable, such as someone using speech you disagree with,  justify the suppression of rights for others—especially when the power to silence comes from the government. We have other options to show our distaste for ideas: to protest, to debate in the marketplace of ideas, and to vote with our dollars in the marketplace of economic exchange. These options are essential for democracy.

True equity isn’t achieved by sweeping government actions that negatively affect some communities more than others. The restriction of speech disproportionately hurts the marginalized and the powerless. There is power in allowing civil discourse to take place, as it is the primary means for overcoming fascism and oppression. 

We should not discourage people from using wit, irony, or reappropriation to disarm the malicious. Unfortunately, the debate on free speech has almost always focused on those who abuse it. We know that the cost of free speech sometimes means having disagreeable speech. But the price that is paid for censorship is carried on the backs of the underprivileged. 

The Slants album cover art. Simon Tam.

An example of this is artistic expression, something that has continuously been understood as deserving the highest forms of protection under the First Amendment. Over the past few decades, prosecutors have been using violent, crime-laden lyrics of amateur rappers as confessions to crimes, threats of violence, evidence of gang affiliation, or revelations of criminal motive- and many judges and juries have gone along with it. The same approach has not been adopted with murder ballads (a popular form of country music), other genres of music, or other forms of artistic expression. It’s a perfect example of Orwell’s satire in play: “All animals are equal, but some animals are more equal than others.” 

We often take civil liberties and our First Amendment freedoms for granted, but they aren’t protected as they should be. A guarantee on paper is only as good as the people willing to ensure that those freedoms are made real. We need persistent awareness and troublemakers willing to fight these battles for other people to ensure our rights are available. 

So as you create movement in your life, ask what you can do with your friction: Do you need to check your ego, heat things up, or test the strength of your resolve? Once you understand the kind of internal opposition that you’re facing, you’ll have better external options for moving forward. And, if you’re creating a movement for your community, ask yourself: are you the friction? How can you use and create more resistance to bring more justice for all?

By Simon Tam

Simon Tam is an author, musician, and activist. He is best known as the founder and bassist of the first all-Asian American rock band, The Slants. He helped expand civil liberties for minorities by winning a unanimous victory at the Supreme Court of the United States for a landmark case, Matal v. Tam, in 2017. He also leads The Slants Foundation, a nonprofit that supports arts and activism projects for underrepresented communities. In 2019, he published his memoir, Slanted: How an Asian American Troublemaker Took on the Supreme Court, which was named “One of the Best Books on the Constitution of All Time” by BookAuthority and won an award for Best Autobiography/Memoir from the Independent Publisher Book Awards.

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We’re excited to share this front-page article for the winter 2022 edition of Women’s Quarterly of the Morning Sentinel / Kennebec Journal. It features the First Amendment Museum’s co-founder and president of the board, Genie Gannett as she talks about her family history and future plans with the First Amendment Museum.

This article was written by Nancy P. McGinnis and was originally published on Thursday, January 20, 2022. You can read the entire edition online here.

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