By Mike Dorf
Today is Festivus--at least as celebrated in the Seinfeldian tradition. Dan O'Keefe, the Seinfeld writer whose father celebrated Festivus before it was Festivus, reports that the early Festivus had no fixed date. I shall take this occasion to write a follow-up to my Festivus reporting (on the blog and in my Verdict column) last week.
Readers will recall that when last I reported, the government officials in charge of the Florida Capitol Rotunda had permitted a Festivus Pole to be erected as one of the private displays in what was treated as a public forum. Soon thereafter, those same authorities denied permission to a group called the Satanic Temple, deeming its proposed display "grossly offensive." As of the most recent press reports, the Satanists asked for, but had not received, an explanation of what was deemed offensive about their display. The brewing controversy presents some interesting First Amendment questions.
1. The basic rule for a public forum goes like this: Government may enforce content-neutral time, place and manner restrictions, so long as they leave open ample alternative means of communication. In an area that is not a traditional public forum but has been designated by one through government action (as here), the government may also enforce subject-matter limits to ensure that the forum remains a forum for its designated purpose.
2. Florida does not appear to be justified in keeping out the Satanists on subject-matter grounds. Like the others, theirs is a holiday display.
3. A rule that protects the sensibilities of minors might be deemed permissible as a time, place or manner restriction. However, that rule has to be about the display itself in some way. For example, if the government objected that the Satanic Temple's display was sexually explicit or especially violent, then that would be a valid ground for denying permission. Neither of those criteria appears to be satisfied, however.
4. "Offensiveness" is not, standing alone, a permissible ground for censorship. To be sure, offense is part of the justification for the permissibility of banning obscenity, but again, the Satanic Temple's display is not obscene in the legal sense of appealing to the prurient sexual interest. It has no sexual content at all.
5. Without a fuller explanation from the Florida authorities, one cannot be sure what it is that they find offensive, but I think the best case that could be made for exclusion would go something like this: Satan worship indicates a commitment to do evil, which government may legitimately oppose. Note that this view relies on a particular conception of Satanism which may not be shared by self-described Satanists. Knowing next to nothing about Satanism, I googled it and found myself directed to the Church of Satan website. Those Satanists would not qualify for censorship under this theory, as they do not advocate evil; instead, the Church of Satan appears to blend elements of paganism, atheism and hedonism.
6. But suppose that there really were a proposed display by Satanists of the sort I'm imagining, i.e., people whose religion celebrates murder, rape, etc. Even then it's not clear that their message could be excluded from a public forum. After all, the leading cases say that abstract advocacy is an insufficient basis for censorship. Only incitement--defined in the case law as words that are reasonably calculated to bring about imminent violence--suffices. Hence, a display that merely describes Satan as a fallen angel (as the rejected Florida display would), or even one that endorses Satan worship, cannot be a basis for censorship.
If the Satanic Temple pushes their case, they have a decent chance of succeeding. That, in turn, may change the calculus for government officials going forward. In my column, I explained that state officials might have found the public forum approach attractive as a means of avoiding taking responsibility for religious displays. But that responsibility may look like the lesser evil, compared with an obligation to permit Satanic displays.