So this case is an interesting story about a government failing to accomplish its goals, and a 1999 nativity scene now in the back of a pickup truck. (No, this is not a religion case.)
Tippecanoe County in central Indiana is home to Lafayette, West Lafayette, and Purdue University. Back in 1999, the county got complaints about a nativity scene on the courthouse grounds. (People didn’t like the image of having a religious display on government property.) In response, the county banned the nativity scene from the courthouse grounds and declared the grounds a “closed forum,” requiring anyone that wanted to use the groups to get the county’s sponsorship (not just permission) before using it. That nativity scene is now a private, “mobile” nativity scene, in the back of one local man’s pickup truck. (Side note: the Supreme Court has ruled more than once about when nativity scenes on public property violate the Establishment Clause.)
The county’s strategy appeared to work at first. The only events held on the grounds were county-sponsored, including an art fair and a police fundraiser. But more recently, unsponsored and unapproved groups used the grounds. In the last couple years, there were organized rallies or protests about Planned Parenthood, bullying, gun violence, and Syrian refugees. All those events either used the county courthouse’s grounds or they spilled onto them.
Enter the Higher Society of Indiana. Last summer, and because of a miscommunication, they thought they had the county’s approval to hold their rally on the courthouse steps. They set up a podium, amplifier, and banners. Speakers addressed upwards of 40 people. When the county shut them down mid-rally, stating that the county would not sponsor their event, the Higher Society sued.
Both the group’s and the county’s arguments were straightforward. The group said that their speech was private speech and that the county unconstitutionally discriminated against them based on their pro-marijuana viewpoint. The county agreed that they had silenced the group because of its viewpoint, but insisted (citing their “closed forum” policy) that the group’s speech was government speech and not private speech. (Generally the government can pick and choose its own viewpoints in its own speech.) The Seventh Circuit disagreed, however, found the speech to be private speech, and ruled against the county. The court said that there was no history of using the courthouse steps for only government speech, and that “reasonable people would not attribute to the government the views expressed at protests and rallies on government property.”
Case: Higher Society of Ind. v. Tippecanoe Cty., No. 17-1089 (7th Cir. June 7, 2017) (opinion here)
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