Can the government ban controversial public holiday displays?

If the government opens up a forum for holiday displays, it can’t pick winners and losers

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Last year, the Satanic Temple of New Hampshire put up a Baphomet statue (a part-human, part-goat satanic deity) in front of the State House in Concord. People vandalized it and knocked off its head. Concord vowed to review its policies after its mayor described the statue as “deliberately provocative and disturbing.” That raised major constitutional concerns.

FIRE wrote to Concord, arguing that the government could not discriminate against disfavored displays. In a victory for free speech, Concord kept the statue and arrested the perpetrators. This year, despite questions from public officials, Baphomet is back up in front of the State House.

New Hampshire’s backing of the Satanic Temple’s right to display its religious symbol illustrates a core First Amendment principle: When the government invites private holiday displays, the First Amendment bars viewpoint discrimination.

What the Free Speech Clause requires

The threshold question: who is speaking?

When the government — such as a town council or a public school — puts up holiday displays, it’s subject to the First Amendment’s Establishment Clause. When the government opens up a public place to private groups or individuals to display their own religious symbols, it is subject to the Free Speech Clause.

Understanding public forum doctrine

If the government allows private groups or individuals to display their own symbols, the question is then one of forum. Public forum doctrine is a First Amendment framework that determines the level of constitutional protection afforded to speech on government property. Some forum types allow for more restrictions, but viewpoint discrimination is always constitutionally forbidden.

The Supreme Court identifies three types of public forums: traditional, limited, and designated. Traditional public forums are those historically used for public assembly, such as streets and parks, where regulatory ability is most limited. In these spaces, restrictions based on the content (not just viewpoint) of speech are almost always unconstitutional.

Designated public forums arise when the government intentionally opens public properties for expression. Once the government opens up a designated public forum, the same rules that apply to traditional public forums apply as long as the government keeps the forum open.

Finally, limited public forums are places the government opens for expression by limited groups or specific topics. The government can be slightly more restrictive here, with the ability to impose restrictions that are viewpoint neutral and reasonable in light of the purpose served by the forum. For example, a city council might establish a public comment period at its meetings but require that comments be related to city business.

No matter which type of forum exists, viewpoint discrimination is prohibited

Courts have reached different conclusions on whether government properties (other than parks, sidewalks, or other traditional forums) opened up for holiday displays constitute limited or designated public forums depending on the circumstances. Regardless, even when the government can set subject matter limits, it can’t discriminate by viewpoint within those categories. The Supreme Court has long barred censorship merely “because public officials oppose the speaker’s view.” Perry Education Association v. Perry Local Educators’ Association (1983).

Last year in Gallatin, Tennessee, a library allowed 20 different organizations to decorate Christmas trees to display on its premises. The mayor directed the library to remove one of the trees with a gay pride message, citing a policy against “political” decorations. That type of policy is constitutionally suspect in a limited public forum like the library tree exhibition and the tree should not have been removed.

Just as constitutionally suspect are government attempts to limit religious displays in public forums for fear of endorsing religion. In Shurtleff v. Boston (2022), Boston allowed different groups to fly flags of their choice over Boston’s city hall. Some included foreign countries’ flags or the pride flag. When the city denied a request to fly a “Christian flag,” the Supreme Court treated that as unconstitutional viewpoint discrimination. Put simply, religion is a viewpoint too. Boston could not approve a pride flag and deny a Christian one.

Attempts to classify certain messages as offensive, disturbing, or otherwise not in the holiday spirit count as viewpoint discrimination. In other words, under the First Amendment, if the government allows people to publicly celebrate Christmas, it cannot dictate how they do so just because officials dislike a particular perspective.

Common neutral rules

That begs the question: what can the government do once it opens up a forum for holiday displays?

Usually OK — time, place, and manner rules

The government can usually impose what are known as “time, place, and manner” restrictions on speech in public forums. In the holiday display context, this could mean limiting the size, height, and distance between displays — all without regard to the display’s content. In other words, cities can reasonably regulate logistics as long as they don’t police viewpoints.

Red flags — often viewpoint discrimination in disguise

Some rules masquerade as viewpoint neutral time, place, and manner restrictions, but are actually viewpoint discriminatory. Look no further than the New Hampshire Baphomet statue, where the mayor argued that the display was too provocative. On the surface, it might seem that the mayor advocated for a neutral “provocation” principle where any display that causes a reaction could be taken down. But that’s not a neutral principle at all — it means enabling a heckler’s veto over unpopular speech. Restricting speech because members of the public, rather than government officials, dislike its viewpoint is still viewpoint discrimination.

Perhaps the most common problem with holiday display policies are rules that feign neutrality by requiring “good taste” or “respect.” But what’s respectful to one religious group might be offensive to another. These rules invite subjective message policing by the government, which does not and should not have a dog in the fight when it comes to the tone of expression.

The bottom line

In the end, the government can choose whether to open up non-traditional public forums for public holiday displays or not. If it doesn’t, there is no free-floating constitutional right to put up a Satanic display or a Christmas tree as one pleases. For example, the government has not opened up court rooms for holiday displays, so one could not just walk up to the bench and place a giant menorah on it. But when the government solicits holiday decorations, it can’t discriminate between a menorah, a Christmas tree, or even a Satanic statue.