(CN) – Though nativity scenes in its Palisades Park are a decades-long tradition, Santa Monica, Calif.’s new ban on the practice is legal, the 9th Circuit ruled Thursday, because it bars all wintertime displays regardless of content.
Since 1955, Palisades Park has hosted dioramas overlooking Santa Monica State Beach depicting scenes from the biblical story of Christmas.
The city once allowed huge unattended dioramas year-round in the park, but gradually scaled back the displays, maintaining a “winter exception” to the unattended-displays ban for the month of December.
That winter exception allowed all members of the community to put up displays, with space allocated on a first-come, first-served basis.
Fueled by atheists who opposed the placement of religious displays in the park, demand for space surged in 2011.
The atheists wanted to keep the space away from religious groups, including the Santa Monica Nativity Scenes Committee, and both sides proclaimed that they would file even more applications in 2012 to flood the city with requests for the space.
Rather than oversee a battle over the space between various religious and nonreligious groups, Santa Monica elected to repeal the winter-display exception and keep the park free of all displays.
The committee took the city to court, calling the repeal an unconstitutional “heckler’s veto” that violated its free-speech rights.
A three-judge panel for the 9th Circuit disagreed Thursday, finding that “the repeal was a content-neutral time, place, and manner regulation, not a heckler’s veto.”
“The committee’s heckler’s veto claim would thus have some force if the city, in response to the atheists’ complaints and applications for space, had decided that no religious displays could henceforth be erected in Palisades Park,” Judge Jay Bybee wrote for the court (emphasis in original).
“But the city did no such thing.”
Rather the city adopted a generally applicable rule that balanced competing speech rights, and did not suppress plaintiff’s particular message, the court found.
“The repeal of the winter display exception did, in some sense, ratify the atheists’ opposition to the nativity scenes; the atheists started a ‘controversy’ over the scenes, and the city reacted by excluding the scenes from Palisades Park,” Bybee said. “We would expand the heckler’s doctrine significantly, however, if we held here that the doctrine applies to neutral regulations that do not target particular speech.”
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