By: Brian J. Connolly, Shareholder, Otten Johnson Robinson Neff + Ragonetti, P.C.
This article is reprinted with permission. The original appeared on Rocky Mountain Sign Law, www.rockymountainsignlaw.com.
Earlier this month [April 2020], the Fifth Circuit Court of Appeals vacated a lower court’s summary judgment order in order favor of a non-theist group that sought to place a nonreligious display in the rotunda of the Texas state capitol during the holiday season. The lower court found that the state, in denying the group’s display, had engaged in viewpoint discrimination. However, the court found that the order granting retrospective relief was improper, but directed the lower to court to consider the group’s claim for prospective relief and reinstated its claim that the state’s regulations constituted an impermissible prior restraint.
We reported on this case in 2017. The facts of the case can be found on our earlier post. Since our last report on the case, the district court entered a declaratory summary judgment in favor of Freedom From Religion Foundation, finding that Texas Governor Greg Abbott’s and Texas State Preservation Board Executive Director Rod Welsh’s interference in the matter constituted viewpoint discrimination. However, the district court denied summary judgment on the group’s Establishment Clause claim and a claim against Abbott in his individual capacity.
On appeal, the Fifth Circuit considered arguments by the Texas officials that the court lacked jurisdiction to enter a declaratory judgment against them by virtue of the state’s sovereign immunity. Abbott and Welsh argued that, because the U.S. Supreme Court’s decision in Matal v. Tam now prohibits states from restricting offensive speech, there was no ongoing legal violation, because Texas was precluded from prohibiting Freedom From Religion Foundation’s message. The court analyzed those arguments under the Ex parte Young doctrine, which provides that federal courts can enter judgment against state government officials in their official capacities, so long as the claims seek prospective relief to address ongoing conduct and allege violations of federal law. The court determined that the plaintiff had established an ongoing violation of federal law, but that the district court’s order was retrospective in nature. The appellate court thus remanded the case to the district court to enter prospective relief against the defendants.
The plaintiff organization cross-appealed on the lower court’s dismissal of its prior restraint claim, which alleged that the state had conferred unbridled discretion upon administrative officials to deny the display. The state’s rules allowed the board to deny displays in the capitol based on a public purpose analysis. The district court determined that the public purpose criterion was reasonable, and thus was a constitutional prior restraint. The appellate court determined that the district court incorrectly dismissed the unbridled discretion claim, finding that a prior restraint on speech must have neutral criteria sufficient to prevent censorship.
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