Nativity Scenes Comm. v. City of Santa Monica

A cause of action alleging First Amendment violations by a city is not created under the Establishment Clause or heckler veto doctrine when the city passes a content-neutral time, place, and manner regulation that is supported by secular rationales, and could not reasonably be construed as primarily seeking to communicate disapproval of a religion.

Nativity dioramas have been built annually in Palisades Park since 1955. In 1983, the Santa Monica Nativity Scenes Committee (“Committee”) was created to oversee the project. In 2001, the City of Santa Monica (“City”) passed the Community Events Ordinance, which prohibited unattended displays in public parks. To protect the longstanding tradition in Palisades Park, the Committee passed an ordinance that created the “Winter Displays” exception, which allowed for unattended displays in designated areas of Palisades Park in December. Atheists began applying for space and a lottery system was created to deal with the increased interest in display space. In 2011, the City received a large volume of applications that were projected to grow. In response to the increasing costs of administering the Winter Displays exception, the City passed Ordinance 2401, which completely repealed the exception. Subsequently the Committee filed suit, alleging that the repeal violated the First Amendment’s Establishment and Free Speech Clauses. The district court dismissed the Committee’s suit for failing to state a claim. The Ninth Circuit agreed, holding that the regulation was a content-neutral time, place, and manner restriction, rejecting the Committee’s arguments that ordinance should be found to be a content-based “heckler’s veto.” The panel found that the ordinance did not target the Committee’s particular speech, but evenhandedly regulated and protected the speech rights of all parties, and that the ordinance was tailored narrowly enough to further the government’s legitimate interests. Additionally, the panel held that Ordinance 2401 did not violate the Establishment Clause because the City’s goals of conserving government resources and maintaining the aesthetics of the park were secular rationales for the ordinance. Furthermore, the panel found that a reasonable observer would not find the primary effect of the ordinance to be the disapproval of Christianity, given the City’s prior support. AFFIRMED.