The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-4153 & 99-4226
MARTIN DEBOER, SOO AI KUDO,
DAVID MARTIN, et al.,
Plaintiffs-Appellants, Cross-Appellees,
v.
VILLAGE OF OAK PARK, an Illinois municipal
corporation, BARBARA FURLONG, in her
official capacity as President of the
Village of Oak Park, SANDRA SOKOL, in her official
capacity as Village Clerk of the Village
of Oak Park, et al.,
Defendants-Appellees, Cross-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2437--Marvin E. Aspen, Chief Judge.
ARGUED SEPTEMBER 26, 2000--DECIDED September 20, 2001
Before COFFEY, RIPPLE and ROVNER, Circuit
Judges.
RIPPLE, Circuit Judge. The plaintiffs,
organizers of National Day of Prayer
activities in the Village of Oak Park,
Illinois, brought this action against the
Village and a number of its officials
(collectively "the Village"). The
plaintiffs claimed that certain aspects
of the Village’s policy governing the use
of its Village Hall ("the Use Policy")
violated the Free Speech Clause of the
First Amendment. The district court
initially concluded that the Village had
committed unconstitutional viewpoint
discrimination by denying the plaintiffs
access to the Village Hall. The court
also concluded that two additional
aspects of the Use Policy were facially
invalid. Later, after the Village filed a
motion for reconsideration, the court
vacated the part of its opinion that
concluded that the Village had engaged in
viewpoint discrimination, but upheld its
ruling regarding the facial invalidity of
the other challenged aspects of the Use
Policy. For the reasons set forth in the
following opinion, we reverse the
district court’s decision that the
Village did not engage in viewpoint
discrimination by denying the plaintiffs
the use of facilities in the Village
Hall. However, we affirm the court’s
decision regarding the constitutional
infirmity of two other aspects of the Use
Policy.
I
BACKGROUND
A. Facts
1.
The Village has a municipal complex that
consists of three floors; the ground
floor and second floor are commonly
referred to as the Village Hall. The
Village Hall contains a number of work
areas, offices and conference rooms.
Prior to 1995, the Village permitted
local groups to use the Village Hall
facilities on a first-come, first-served
basis as long as a majority of persons in
attendance were residents of Oak Park.
By mid-1995, use of Village Hall
facilities had increased to the point
that it began to interfere with the day-
to-day operation of village government
and significantly increased the Village’s
expenses for custodial service and
maintenance on the facilities.
Consequently, the Village adopted the Use
Policy, which includes a section
governing the use of the Village Hall by
members of the public. This section sets
forth six requirements that all "public
forums, events or activities" must meet
in order to be considered for use of the
Village Hall:
The forum, event or activity must: (1) be
open to all citizens of the Village; (2)
have as its primary purpose providing a
civic program or activity which benefits
the public as a whole; (3) not be based
on or must not promote or espouse the
philosophy, ideas or beliefs of any
particular group, entity or
organization[;] (4) be sponsored or put
on by a local not-for-profit group or
organization based within the Village;
(5) not be sponsored or put on by a group
or organization that has sponsored or put
on a forum, event or activity in the
Village Hall during the preceding twelve
months, unless exceptional circumstances
are involved; and (6) not be a
fundraising event.
R.1, Ex.A at 2. Two rooms were made
available for public use under this
section of the Use Policy./1
2.
In 1952, Congress declared an annual
National Day of Prayer ("NDP") in a joint
resolution signed by President Truman. In
order to fix permanently the NDP as the
first Thursday in May, the law was
amended and signed by President Reagan in
1988. Each year, the President issues a
proclamation encouraging citizens to pray
on that day. According to the plaintiffs,
the NDP’s purpose is to provide an
occasion for Americans to gather together
in order to pray for the United States,
individual states and communities and
officials at all levels of government. In
1993, 1994 and 1995, the plaintiffs were
permitted to use the Village Hall to
conduct a prayer service in conjunction
with the NDP./2 These NDP assemblies
were open to all, regardless of religious
denomination or belief.
In February 1996, plaintiff Martin
DeBoer submitted a "Public Notice of
Meeting and Conference Room Sign-up Form"
to the Village, seeking to again use the
Village Hall for an NDP assembly on May
2, 1996. R.35, Ex.1, Ex.B. In the part of
the form labeled "Agenda Items," Mr.
DeBoer wrote "Prayer for our community,
and our local, state, and national
government leaders." Id. Two months
later, Village President Lawrence
Christmas denied the request by letter on
the ground that it violated provisions of
the Use Policy. In 1997 and 1998, Mr.
DeBoer submitted similar applications,
and in both years the Village again
denied the request in a letter nearly
identical to that issued in 1996./3
From 1996 through 1998, the plaintiffs
held the NDP assembly at the Oak Park
Library, located a few blocks from the
Village Hall.
B. District Court Proceedings and
Related Events
1.
After the Village denied Mr. DeBoer’s
application for the 1998 NDP assembly,
the plaintiffs filed a complaint in the
district court on April 20, 1998. This
complaint alleged that the Use Policy was
unconstitutional on its face because a
number of its requirements conferred
unbridled discretion on the defendants to
determine who could use Village Hall
facilities, particularly the requirements
that (1) the event provide a civic
program or activity that "benefits the
public as a whole" and (2) that an event
"not be based on or must not promote or
espouse the philosophy, ideas or beliefs
of any particular group, entity or
organization" (the "promote or espouse"
requirement). The complaint also alleged
that the Village Hall was a "designated
public forum" and that, in applying the
Use Policy to the NDP assembly, the
Village engaged in impermissible content-
based discrimination.
During discovery, Village Attorney
Raymond Heise explained the particular
ways in which the Village believed the
NDP assembly to violate the Use Policy.
First, he stated that the proposed event
was not a "civic program or activity,"
which the Village defined as one
concerning a citizen’s relationship to
government, but instead was a religious
activity because it involved the use of
prayer. Second, the event did not
"benefit the public as a whole" because
it was not civic in nature and would
appeal only to a segment of the Village’s
population. Third, the event violated the
"promote or espouse" requirement because
the event was based on a particular
viewpoint, one that advocated the value
of prayer in addressing governmental
issues.
Both parties then filed motions for
summary judgment. In their summary
judgment motion, the plaintiffs argued
that the NDP assembly was a "civic
program or activity" and that the
Village’s position that the use of prayer
rendered such an activity non-civic
constituted impermissible viewpoint
discrimination.
On February 18, 1999, the district court
ruled on the parties’ summary judgment
motions. First, the court held that the
Village Hall was a nonpublic forum
because access to it was granted only to
select groups that met the Use Policy’s
requirements; therefore, access
restrictions to the Village Hall needed
only to be reasonable in light of the
purposes served by the forum and
viewpoint-neutral. The court then held
that the Village engaged in viewpoint
discrimination by denying the plaintiffs’
access request due to a belief that the
NDP assembly was not "civic." The court
disagreed with the Village’s argument
that the use of prayer transformed the
NDP assemblies into religious, not civic,
expression, properly excludable under the
Use Policy. Instead, the court found that
the event’s use of prayer to convey its
message was indistinguishable from a
discussion about civic leaders from a
religious viewpoint, noting that the
"only difference is the packaging." R.66
at 8. The court also noted, however, that
the record was unclear as to the actual
nature of an NDP assembly; it explained
that if the "NDP agenda [was] more
expansive" than engaging in prayer only
for community and government leaders, it
would be constitutional for the Village
to deny access to the plaintiffs, because
the event "could no longer pass as
’civic.’" Id. n.2.
Next, the court found that the Use
Policy’s "promote or espouse" requirement
was unconstitutionally viewpoint-
discriminatory on its face. The court
disagreed with the defendants’ argument
that this prong actually promoted
viewpoint neutrality because it mandated
that "no viewpoint or all viewpoints be
expressed." Id. at 10. Rather, it held
that viewpoint neutrality requires that
government be indifferent to the
viewpoints of speakers in its forums and
that, by contrast, this prong of the Use
Policy "smacks of government management
of speech." Id.
Lastly, the court found that the
requirement that an event have as its
primary purpose the promotion of a "civic
program or activity which benefits the
public as a whole" granted Village
officials unbridled discretion in
violation of the Free Speech Clause. The
court first explained that the "civic
program or activity" portion of the
requirement was not constitutionally
problematic because the Village had
employed a consistent definition of the
term "civic" (one involving the
relationship between citizens and govern
ment) and because its previous decisions
regarding access (prior to this case) had
correlated with that definition. However,
the court held that the "benefits the
public as a whole" requirement could not
survive constitutional scrutiny because
it did not provide narrow and definite
standards through which it could be
applied evenhandedly. The court was
unclear as to what types of activities
actually met such a standard and noted
that Village officials also had expressed
uncertainty on that point.
2.
As a consequence of the court’s
decision, the plaintiffs were granted
authorization to hold an NDP assembly at
the Village Hall on May 6, 1999.
Unbeknownst to the plaintiffs, Simone
Boutet, an attorney for the Village,
attended the event and surreptitiously
taped the proceedings.
After the assembly, the defendants filed
a motion for reconsideration in the
district court, to which they attached a
transcript of the proceedings of the 1999
NDP event. On November 10, 1999, the
court ruled on the motion and determined
that the transcript met the requirements
for consideration as newly discovered
evidence under Federal Rule of Civil
Procedure 60(b).
Turning to the merits of the motion, the
court ruled that the transcript
demonstrated that the content of the NDP
prayer service was primarily religious,
not civic. To support its conclusion, the
court cited the following aspects of the
event: (1) the theme of the service was
"Light the Nation with Prayer," and event
leaders read and preached about passages
from the New Testament and the teachings
of Jesus Christ; (2) the audience was
lead in a hymn entitled "Heal Our Land,"
the verses of which contained various
quotations from Jesus Christ; (3) lengthy
segments of the service were "about the
church itself," in which a pastor lead
groups in prayers for "the Church," which
was defined as "the Body of Christ"; and
(4) the group sang a song entitled
"Shine, Jesus, Shine" and recited a
closing prayer for the church and for
government that praised Jesus Christ and
asked for his help to "build back a great
nation." R.103 at 7-8 (internal quotation
marks omitted). The assembly also
included prayer for the local community,
the nation and various government leaders
(many by name), reflections on the role
that prayer has played in the founding of
American government and preaching that
touched on a number of contemporary
political and governmental issues.
However, the district court found that
these latter elements were not the
primary focus of the assembly and that
they did not transform it into a civic
event. As a result, the court found that
the Village constitutionally could
exclude the event from the Village Hall.
The court also went further, concluding
that, because "the line between civic and
non-civic prayer is too fine to be drawn
by the law," no form of prayer could be
considered civic in content. Id. at 8.
The court explained that, regarding
prayer, "the content and the manner of
expression are so closely intertwined"
that "the form of the expression seems to
transform even otherwise secular topics
into religious subject matter." Id. at
10. The court also explained that forcing
the Village to scrutinize proposed prayer
services for their civic content would
likely lead to an excessive entanglement
with religion in violation of the
Establishment Clause.
However, the court declined to vacate
the portion of its earlier judgment
regarding the unconstitutionality of the
"promote or espouse" requirement and the
"benefits the public as a whole"
requirement. It found that, although the
plaintiffs properly could be barred from
the Village Hall because their event was
non-civic, they nevertheless had standing
to mount a facial challenge to both of
those provisions.
II
DISCUSSION
A. Introduction
1.
The plaintiffs now appeal the district
court’s decision that the NDP assembly
was not a "civic" event and that the
Village’s refusal to grant them access to
the Village Hall did not amount to
viewpoint-based discrimination. The court
originally granted summary judgment to
the plaintiffs on this issue, but, after
granting the motion for reconsideration,
it vacated that portion of its earlier
opinion. The Village cross-appeals the
district court’s decision to grant
summary judgment to the plaintiffs by
holding that the "promote or espouse"
requirement and the "benefits the public
as a whole" requirement were
unconstitutional.
We review a district court’s grant of
summary judgment de novo, construing all
facts, and drawing all reasonable
inferences from those facts, in favor of
the non-moving party. See Clay v. Holy
Cross Hosp., 253 F.3d 1000, 1005 (7th
Cir. 2001). Summary judgment is proper
when the "pleadings, depositions, answers
to interrogatories, and admissions on
file, together with the affidavits, if
any, show that there is no genuine issue
as to any material fact and that the
moving party is entitled to a judgment as
a matter of law." Fed. R. Civ. P.
56(c)./4
2.
The extent to which government can
control access to its property depends
upon the nature of the property at issue.
See Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc., 473 U.S. 788, 800 (1985).
Consequently, the Supreme Court has
adopted a "forum analysis" to determine
the extent to which government may
regulate the use of that property. Id.
The Court has traditionally identified
three types of forums: the traditional
public forum, the designated public forum
and the nonpublic forum. See Ark. Educ.
Tele. Comm’n v. Forbes, 523 U.S. 666, 677
(1998) ("AETC"); Cornelius, 473 U.S. at
802.
A traditional public forum, such as a
street or a park, is property that "’by
long tradition or by government fiat’. .
. has been ’devoted to assembly and debate.’"
AETC, 523 U.S. at 677 (quoting Perry
Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983)). A
designated public forum, in contrast, is
a forum created by the government, not
through inaction or by permitting limited
discourse, "’but only by intentionally
opening a nontraditional public forum for
public discourse.’" AETC, 523 U.S. at 677
(quoting Cornelius, 473 U.S. at 802).
"’[T]he Court has looked to the policy
and practice of the government to
ascertain whether it intended to
designate a place not traditionally open
to assembly and debate as a public forum.’"
Id. (quoting Cornelius, 473 U.S. at 802).
In both a traditional and a designated
public forum, reasonable time, place and
manner regulations are permissible, but
any content-based prohibition is
permissible only if it is necessary to
serve a compelling state interest and is
drawn narrowly to achieve that interest.
See Cornelius, 473 U.S. at 800; Perry,
460 U.S. at 46. Other government
properties have been described as
nonpublic forums; the government may
restrict access to such forums so long as
"’the restrictions are reasonable and
[are] not an effort to suppress
expression merely because public
officials oppose the speaker’s view.’"
AETC, 523 U.S. at 678 (quoting Cornelius,
473 U.S. at 800).
In distinguishing between designated and
nonpublic forums, the case law has noted
that the more selective the government is
in restricting access to its property,
the more likely that property will be
considered a nonpublic forum./5 The
district court undertook this type of
forum analysis and found that the Village
Hall was a nonpublic forum. It noted
that, in implementing a Use Policy with
six enumerated requirements that must be
met before access can be granted, the
Village provided only "selective access"
to the Village Hall that was not
"indiscriminate" enough to convert the
property into a designated public forum.
R.66 at 5 (quotation marks omitted).
In considering the forum status of the
Village Hall, we note that, in recent
cases, the Supreme Court has employed the
term "limited public forum" to refer to a
forum that the state has reserved "for
certain groups or for the discussion of
certain topics"; the Court has stated
that, in such forums, any restriction
must be viewpoint-neutral and reasonable
in light of the purpose served by the
forum. Good News Club v. Milford Cent.
Sch., 121 S. Ct. 2093, 2100 (2001)
(quotation marks and citations omitted)
(considering school facilities open for a
wide, but not unlimited, range of
expressive activity a "limited public
forum" based on parties’ agreement);
Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 819, 829 (1995)
(describing activities fund open to
various student groups as a "limited"
forum). As several circuits have noted,
the use of this terminology in this
context has introduced some analytical
ambiguity because the Court previously
had employed the term "limited public
forum" as a subcategory of the designated
public forum, subject to the strict
scrutiny governing restrictions to
designated public forums. See Chiu v.
Plano Indep. Sch. Dist., 260 F.3d 330,
345-46 & n.10, n.11 (5th Cir. 2001) (per
curiam); Summum v. Callaghan, 130 F.3d
906, 914-16 (10th Cir. 1997). We need not
attempt to reconcile this confusion over
the proper forum terminology here. Even
assuming arguendo that the district court
correctly identified the Village Hall as
a type of forum subject to something less
than the strict scrutiny review given to
access restrictions in designated public
forums, the Village still could not deny
access in a manner that discriminated
against a speaker based on his viewpoint.
As our analysis will indicate, we believe
that the Village violated this principle
of viewpoint neutrality in denying access
to the plaintiffs, discrimination that is
impermissible regardless of forum status.
B. The NDP Assembly as a "Civic Program
or Activity"
The Village determined that the NDP
assembly did not have as its primary
purpose providing a "civic program or
activity." A number of Village officials
defined the term "civic program or
activity" in a similar manner, declaring
that it referred to an event focused on
citizens and their relationship with
government or the manner in which they
are governed./6 The district court held
that this definition was sufficiently
clear that the Village could apply the
"civic program or activity" requirement
in a viewpoint-neutral manner, and the
parties do not dispute this proposition
on appeal./7
However, the Village has construed the
term "civic program or activity" to
exclude categorically any event that
involves religious prayer and worship.
The Village believes that, even if the
stated purpose and actual focus of an
event relates to citizens and their
government, that event is transformed
into a "religious activity," not a civic
one, if it involves prayer and worship
activities. The district court ultimately
agreed with the Village’s position,
holding that "religious prayer services
are inherently non-civic in content" and
that the use of prayer transforms even
otherwise secular topics into religious
subject matter. R.103 at 10./8
As we have noted, the Village’s
exclusion of the NDP assembly from the
Village Hall must at least be reasonable
in light of the purpose served by the
forum and viewpoint-neutral./9 With
respect to viewpoint neutrality, the
government may exclude a speaker
[i]f he wishes to address a topic not
encompassed within the purpose of a
forum, or if he is not a member of the
class of speakers for whose especial
benefit the forum was created, [but
government] violates the First Amendment
when it denies access to a speaker solely
to suppress the point of view he espouses
on an otherwise includible subject.
Cornelius, 473 U.S. at 806 (internal
citations omitted); see also Rosenberger,
515 U.S. at 829-30.
In light of this standard, we must
respectfully disagree with the district
court’s determination. We believe that
the NDP assembly is a "civic program or
activity," as the Village has defined the
term, and that the Village’s denial of
the plaintiffs’ application to use the
Village Hall constitutes viewpoint
discrimination. In adopting the
philosophical and theological position
that prayer, the singing of hymns and the
use of Bible commentary can never be
"civic," the Village has discriminated
against the speech of those of its
citizens who utilize these forms of
expression to convey their point of view
on matters relating to government.
The Supreme Court’s recent decision in
Good News Club v. Milford Central School,
121 S. Ct. 2093 (2001), which was
rendered after the district court’s
ruling in this case, strongly supports
our holding. In Good News, a New York
school enacted a community use policy
opening its building for, among other
things, "instruction in any branch of
education, learning or the arts" and
"social, civic and recreational meetings
and entertainment events, and other uses
pertaining to the welfare of the
community." Good News, 121 S. Ct. at 2098
(internal quotation marks and citations
omitted). A local Good News Club, a
private Christian organization for
children ages six to twelve, sought to
hold the Club’s weekly meetings in the
school’s cafeteria. See id. These
meetings used the recitation of Bible
verses, biblical stories and songs that
included references to Jesus Christ to
discuss issues such as moral and
character development. See id.; Good News
Club v. Milford Cent. Sch., 202 F.3d 502,
504-06 (2d Cir. 2000) ("Good News I").
Leaders also encouraged children to
accept Jesus Christ as their savior and
made use of prayers to convey their
message at various times. See Good News,
121 S. Ct. at 2098; Good News I, 202 F.3d
at 504-06. The school denied the Club’s
request on the grounds that these
meetings were the equivalent of religious
worship and instruction and that they
violated a part of the use policy that
forbade use for religious purposes. See
Good News, 121 S. Ct. at 2098. A divided
panel of the United States Court of
Appeals for the Second Circuit ultimately
agreed, finding that the subject matter
of the Club’s activities was
"’quintessentially religious,’" fell
"’outside the bounds of pure moral and
character development’" and therefore
equaled constitutional subject
discrimination, not unconstitutional
viewpoint discrimination. Id. at 2099
(quoting Good News I, 202 F.3d at 510-11)
(internal quotation marks omitted).
The Supreme Court reversed that
decision. Noting that the school
interpreted its policy to include
discussion of moral and character
development, and that the Club’s meetings
did address such topics, the Court found
that the school engaged in impermissible
viewpoint discrimination by excluding the
Club on the ground that its activities
were religious in nature. See id. at
2101. The Court compared the case with
that of Lamb’s Chapel v. Central Moriches
Union Free School District, 508 U.S. 384
(1993), in which the Court had found that
a school district engaged in viewpoint
discrimination when it excluded a church
from presenting films teaching family
values (a subject otherwise permissible
in the forum) from a Christian
perspective. See id. The Supreme Court
then explained that "[t]he only apparent
difference between the activity of Lamb’s
Chapel and [that] of the Good News Club
is that the Club chooses to teach moral
lessons from a Christian perspective
through live storytelling and prayer"
rather than through films, a distinction
the Court found "inconsequential."
Id./10 The Court rejected the idea
that "any time religious instruction and
prayer are used to discuss" an otherwise
includible subject, that discussion is
"not a ’pure’ discussion of those
issues," from a religious viewpoint. Id.
at 2102.
As did the school in Good News, here the
Village attempts to distinguish between
the discussion of permissible subject
matter (here, civic issues) from a
religious perspective and the use of
prayer and religious instruction or
worship to discuss or convey a message
regarding such subject matter. As the
Supreme Court has noted, this is a
distinction without a real substantive
difference. See id. at 2101; Widmar v.
Vincent, 454 U.S. 263, 268 n.6 (1981)
(noting that a distinction between
religious speech and religious worship
lacks "intelligible content"). A prayer
service regarding civic issues is
certainly distinct from other types of
discussion about civic matters informed
by a religious perspective. However, that
difference in form and tone does not
alter the reality that worship and prayer
directed toward the betterment of
government and the enlightenment of civic
leaders are methods of expressing a
religious viewpoint about civic subject
matter. By restricting the plaintiffs
from using the means of expression that
best reflects their views on how to
address civic problems or best provides
the reasons (albeit grounded in
Christianity and the Bible) as to why
they believe their viewpoint to be
persuasive, the Village is requiring a
"sterility of speech" from the plaintiffs
that it does not demand of other groups
with regard to this requirement. Good
News, 121 S. Ct. at 2109 (Scalia, J.,
concurring).
The notion that religious prayer and
worship is not properly viewed as a
method of discussing civic subject matter
is belied by our nation’s long tradition
of using those forms of expression to
inform governmental action. From George
Washington’s invocation of prayer in his
first inaugural address, see Lee v.
Weisman, 505 U.S. 577, 633 (1992)
(Scalia, J., dissenting) (quoting
Inaugural Addresses of the Presidents of
the United States, S. Doc. 101-10, p. 2
(1989)), to the chaplains’ prayers that
have opened each congressional session
since the first Congress, see Marsh v.
Chambers, 463 U.S. 783, 787-88 (1983), to
the use of the invocation "’God save the
United States and this Honorable Court’"
that has opened Supreme Court sessions
since the days of Chief Justice Marshall,
Lee, 505 U.S. at 635 (Scalia, J.,
dissenting) (quoting 1 C. Warren, The
Supreme Court in United States History
469 (1922)), to the opening of Cabinet
meetings with a prayer, see N.Y. Times,
Aug. 5, 2001, at 1 (National Edition),
prayers and the invocation of divine
guidance have been accepted as part of
American political discourse throughout
the history of this Republic.
The civic nature of the NDP assembly as
part of that well-established practice is
particularly evident. The event was a
part of a national observance designed to
afford citizens who believe that prayer
is an important component of civic
obligation the opportunity to discharge
that obligation by praying together for
the welfare of their country. Indeed, it
is a day designated for this purpose by
Congress, see 36 U.S.C. sec. 119, and
recognized each year by the President in
a proclamation. In his application for
the 1999 NDP event, Mr. DeBoer listed the
purpose of the assembly to be "Prayer for
community, state and national leaders,"
R.80, Ex.A, and the transcript of the
event demonstrates that its intent was to
pray for and discuss civic concerns--
those matters relating to the citizenry
and their government.
Indeed, were the Village to enforce a
Use Policy that required it to
distinguish between speech from a
religious viewpoint and religious prayer,
instruction or worship, a review of such
distinctions, the Supreme Court has indi
cated, ultimately would be beyond a
court’s competence to administer. See
Widmar, 454 U.S. at 269-70 n.6; Fowler v.
Rhode Island, 345 U.S. 67, 70 (1953).
Such scrutiny inevitably would entangle
the Village with religion to an
impermissible degree. See Widmar, 454
U.S. at 269-70 n.6 (noting that such
inquiries ultimately would require the
state "to inquire into the significance
of words and practices to different
religious faiths, and in varying
circumstances by the same faith"); see
also Good News, 121 S. Ct. at 2111
(Scalia, J., concurring); Rosenberger,
515 U.S. at 844-45; Bd. of Educ. of
Westside Cmty. Schs. v. Mergens, 496 U.S.
226, 248, 253 (1990). Indeed, the
Village’s attempt to parse the 1999 NDP
assembly into such categories on a line-
by-line basis demonstrates the futility
and the intrusiveness of such an
approach. Such monitoring would be "far
more inconsistent with the Establishment
Clause’s dictates" than would the
Village’s provision of the Village Hall
on a religion-blind basis, so long as an
activity otherwise met its "civic program
or activity" requirement. Rosenberger,
515 U.S. at 845./11
Religious expression holds a place at
the core of the type of speech that the
First Amendment was designed to protect.
See Capitol Square Review & Advisory Bd.
v. Pinette, 515 U.S. 753, 760 (1995).
Indeed, the Supreme Court’s
precedent establishes that private
religious speech, far from being a First
Amendment orphan, is as fully protected
under the Free Speech Clause as secular
private expression. Indeed, in Anglo-
American history, at least, government
suppression of speech has so commonly
been directed precisely at religious
speech that a free-speech clause without
religion would be Hamlet without the
prince.
Id. (internal citations omitted)
(emphasis in original). In barring the
plaintiffs from access to the Village
Hall, the Village discriminated against
the plaintiffs based on their religious
viewpoint, a violation of the First
Amendment’s mandates.
C. The Other Challenged Requirements of
the Use Policy
1. The "Promote or Espouse" Requirement
The district court also determined that
the Use Policy’s requirement that a
proposed event "not be based on or . . .
promote or espouse the philosophy, ideas
or beliefs of any particular group,
entity, or organization" was
unconstitutionally viewpoint-
discriminatory on its face. The Village
has interpreted this phrase to require
that "a qualifying civic program must
accommodate various viewpoints on the
civic topic," Appellees/Cross-Appellants’
Br. at 46; therefore, a group may not use
the Village Hall to discuss a "civic"
topic unless it allows all points of view
to be expressed, even those antithetical
to its position on that topic. The
Village determined that the NDP assembly
violated this requirement because it
promoted a particular viewpoint
exclusively--one that extolled the
benefits of prayer./12
The district court held that such a
requirement undermines the concept of
viewpoint neutrality because the Village
is not acting with indifference to the
viewpoints of speakers in its forums, but
instead forces those speakers to alter
their speech to include viewpoints with
which they do not agree. It concluded
that this requirement "smacks of
government management of speech" and
therefore "contradicts the fundamental
First Amendment viewpoint neutrality
principles by which the Village claims to
be abiding." R.66 at 10.
We have noted that the government
engages in viewpoint discrimination when
it denies access to a speaker solely to
suppress the point of view he espouses on
an otherwise includible subject. See
Cornelius, 473 U.S. at 806; see also
Rosenberger, 515 U.S. at 835 (noting that
the government discriminates based on
viewpoint when it examines speech to
"determine whether or not [it is] based
on some ultimate idea"). In enforcing the
"promote or espouse" requirement, the
Village has violated the First
Amendment’s requirement of viewpoint
neutrality. It has examined proposed
events in a manner that has the effect of
disfavoring all individual viewpoints in
some way--if a group that has otherwise
met the Use Policy’s requirements wishes
only to espouse its particular viewpoint
on a civic issue, that group may not use
the Village Hall. In this sense, the
Village suppresses the viewpoint of
particular speakers like the plaintiffs
and "preclude[s] or punish[es] the
expression of particular views," Nat’l
Endowment for the Arts v. Finley, 524
U.S. 569, 583 (1998), by requiring that a
party’s civic speech be diluted by
forcing the inclusion of all views on
that topic. Cf. Hurley v. Irish-American
Gay, Lesbian & Bisexual Group of Boston,
Inc., 515 U.S. 557, 575-76 (1995) (noting
that "the choice of a speaker not to
propound a particular point of view . . .
is presumed to lie beyond the
government’s power to control," and "when
dissemination of a view contrary to one’s
own is forced upon a speaker . . . the
speaker’s right to autonomy over the
message is compromised"). As the district
court noted, the First Amendment’s
requirement of viewpoint neutrality
emphasizes that the government should be
indifferent to a speaker’s viewpoint, not
that it mandate that "no viewpoint or all
viewpoints be expressed." R.66 at 10.
Most frequently, governmental control of
freedom of expression involves the
government’s affirmative act of
forbidding expression on a certain
subject through censorship. However, as
the district court aptly recognized, gov
ernmental restraint on freedom of
expression "need not fall into familiar
or traditional patterns to be subject to
constitutional limitations on
governmental powers." Miami Herald Publ’g
Co. v. Tornillo, 418 U.S. 241, 256
(1974). Indeed, the Supreme Court’s First
Amendment jurisprudence frequently has
recognized that the First Amendment
protects "both the right to speak freely
and the right to refrain from speaking at
all." Wooley v. Maynard, 430 U.S. 705,
714 (1977). Requiring an individual to
present a viewpoint not his own is, in
terms of the First Amendment values at
stake, the equivalent of forbidding him
to say what he wishes to say. See Miami
Herald, 418 U.S. at 256. The government
cannot require an individual to become an
"instrument for fostering public
adherence to an ideological point of view
he finds unacceptable." Wooley, 430 U.S.
at 715. Nor can it force a speaker to
tailor its speech to an opponent’s agenda
or respond to an opponent’s arguments
when it might prefer to be silent. See
Pac. Gas & Elec. Co. v. Pub. Utils.
Comm’n, 475 U.S. 1, 10 (1986) (plurality
opinion). Here, the plaintiffs, having
otherwise qualified as a group eligible
to use the Village Hall facility for a
civic event, cannot be directed by
governmental authorities to format their
presentation in a way that the government
finds suitable. See Hurley, 515 U.S. at
572-75. "[A]ll speech inherently involves
choices of what to say and what to leave
unsaid . . . ." Pac. Gas & Elec., 475
U.S. at 11 (emphasis in original).
Consequently, the speaker has the right
to tailor the speech; the one who chooses
to speak also chooses what to say. See
Hurley, 515 U.S. at 573.
2. The "Benefits the Public as a Whole"
Requirement
Lastly, the district court determined
that the requirement that an event be a
civic program or activity that "benefits
the public as a whole" was facially
unconstitutional because it vested the
Village Clerk with unbridled discretion
in violation of the Free Speech Clause.
"It is well established that where a
statute or ordinance vests the government
with virtually unlimited authority to
grant or deny a permit, that law violates
the First Amendment’s guarantee of free
speech." MacDonald v. City of Chicago,
243 F.3d 1021, 1026 (7th Cir. 2001),
petition for cert. filed, 69 U.S.L.W.
3791 (U.S. June 11, 2001) (No. 00-1839).
Where virtually unlimited discretion
exists, "the possibility is too great
that it will be exercised in order to
suppress disfavored speech." Id.
(quotation marks and citation omitted);
see also City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 757 (1988).
Any regulations governing a speaker’s
access to a forum must contain "narrow,
objective, and definite standards" to
guide a governmental authority, so that
such regulations do not operate as a
prior restraint that may result in
censorship. Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 151 (1969).
Although such regulations need not have
"perfect clarity and precise guidance,"
Ward v. Rock Against Racism, 491 U.S.
781, 794 (1989), the Supreme Court has
struck down those that do not provide
principled limits to guide the decisions
of government officials. For example, in
Shuttlesworth v. City of Birmingham, 394
U.S. 147 (1969), the Court found that a
Birmingham ordinance conferred unbridled
discretion when it required the city
commission to issue a parade permit
unless in "its judgment the public
welfare, peace, safety, health, decency,
good order, morals or convenience require
that it be refused." Shuttlesworth, 394
U.S. at 149-51 (noting that the ordinance
made the "peaceful enjoyment of freedoms
which the Constitution guarantees
contingent upon the uncontrolled will of
an official" (internal quotation marks
and citation omitted)). Additionally, in
City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750 (1988), the
Court found that an ordinance, which
allowed a mayor to deny an application
for a permit to place newsracks on public
property if he determined it was not "in
the public interest" and to condition the
permit on terms he deemed "necessary and
reasonable," conferred unfettered
discretion. Lakewood, 486 U.S. at 769-72
(explaining that to "allow these illusory
’constraints’ to constitute the standards
necessary to bound a licensor’s
discretion renders the guarantee against
censorship little more than a high-
sounding ideal").
We agree with the district court’s
decision that the "benefits the public as
a whole" requirement cannot survive
constitutional scrutiny. The Use Policy
does not contain any further definition
of this phrase to give assistance to the
officials who must interpret its meaning.
Unlike those regulations that this court
has found not to grant unfettered
discretion, the Village’s requirement
provides no concrete standards or
guideposts by which Village officials can
gauge whether an event satisfies this
precondition to the exercise of First
Amendment rights./13
Moreover, when asked to explain what
this requirement means, the Village has
provided confusing and conflicting
answers. In its appellate brief, the
Village at times suggests that the
requirement means the same thing as the
"civic program or activity" requirement
and is superfluous. At other times it
explains that the phrase is a "clarifying
limitation" upon the "civic program or
activity" requirement, explaining that
the use in question must be a civic
program or activity that is "broad based
and of general public interest."
Appellees/Cross-Appellants’ Br. at 42-43.
Village Attorney Heise also at times
explained that the requirement would be
met if an event "related to government"
and therefore was civic in nature. R.35,
Ex.5 at 55. However, he also stated that
Mr. DeBoer’s application was rejected
under this requirement because it was not
civic and because "it appeals to a
segment of the population rather than the
population generally." Id. at 45-46.
Perhaps Village Clerk Sandra Sokol best
summed up the confusion over this
requirement--when asked its definition,
she stated, "Well, if I really knew the
answer to that question, if there were an
answer to the question, I’d be pretty
special." Id., Ex.6 at 50. Ms. Sokol went
on to suggest that the requirement would
be met if an event were open to everyone-
-a definition that would make it
superfluous to the first prong of the Use
Policy, which requires that events be
open to all Village citizens. Ms. Sokol
later explained that an event does not
meet the requirement if "all [view]points
are not being shown," id. at 52, a
statement that suggests yet another
meaning, one that would appear to amount
to the same thing as the "promote or
espouse" requirement./14
Therefore, the requirement is not given
structure or substance by any written
standards and its meaning escapes even
the Village officials charged with
administering and interpreting the Use
Policy. Indeed, one Village official
essentially admitted that the term was
undefinable. It may be, as the Village’s
brief and Mr. Heise suggested, that the
requirement has independent meaning and
is used to deny access to civic
activities that, in the unfettered
judgment of municipal officials, do not
appeal to or benefit a significantly
large section of the Village’s
population. It is simply unclear as to
how the Village could or would make that
determination, one that would by
necessity require it to place a
particular value on the nature of the
speech at issue. As a result, we agree
with the district court’s opinion that
the ambiguity in the "benefits the public
as a whole" requirement provides too
great a risk that it could be used to
engage in prohibited censorship of
speech.
Conclusion
For the foregoing reasons, we reverse
the district court’s decision that the
Village did not engage in
unconstitutional viewpoint discrimination
when it determined that the NDP assembly
was not a "civic" event as defined in the
Use Policy. However, we affirm the
district court’s decision that the
"promote or espouse" requirement and the
"benefits the public as a whole"
requirement are unconstitutionally
infirm. The plaintiffs may recover their
costs in this court.
AFFIRMED in part, REVERSED in part
FOOTNOTES
/1 The Village clerk’s office had the responsibili-
ty of administering the Use Policy. Village
officials explained in detail how this process
worked. If an application clearly violated the
Use Policy, senior administrative clerk Jan
Jankowski or Village Clerk Sandra Sokol would
deny that application immediately. If, however,
the Village clerk’s office had any question as to
whether an event met the Use Policy’s require-
ments, Ms. Sokol would confer with the Village’s
legal department, led by Village Attorney Raymond
Heise. Ms. Sokol invariably accepted the legal
department’s interpretation as to whether a group
satisfied the Use Policy’s mandates and enforced
the policy accordingly. With regard to the plain-
tiffs’ applications to use the Village Hall, Ms.
Sokol stated that the decision to deny those
applications was made not by her, but by the
village president in conjunction with the Vil-
lage’s legal department.
/2 The plaintiffs claim that, although they were
allowed to use the Village Hall during these
years, they encountered some resistance from
village government. They claim that, in 1993, the
village manager initially denied their applica-
tion because the NDP assembly was a "religious"
event, but after receiving a letter from plain-
tiff Martin DeBoer’s counsel, eventually allowed
them access. Additionally, they claim that, after
the 1994 assembly, Ms. Sokol prepared a memoran-
dum stating her objection to the plaintiffs’ use
of the Village Hall on the same ground.
/3 In his 1997 application, Mr. DeBoer listed the
meeting’s purpose as "Prayer for community,
state, [and] national leaders." R.35, Ex.1, Ex.D.
In his 1998 application, Mr. DeBoer listed the
meeting’s purpose as "Prayer." Id., Ex.1, Ex.F.
/4 The plaintiffs also contest the district court’s
decision to grant the motion for reconsideration
under Rule 60(b) on the grounds of newly discov-
ered evidence--the transcript of the 1999 NDP
assembly. We review a district court’s decision
to grant or deny a Rule 60(b) motion for abuse of
discretion. See Tobel v. City of Hammond, 94 F.3d
360, 362 (7th Cir. 1996). We do not believe the
court abused its discretion in considering this
new evidence. However, as this opinion will
demonstrate, even when taking into account the
content of the 1999 NDP assembly, we believe that
the plaintiffs have demonstrated that the chal-
lenged aspects of the Use Policy violated their
constitutional rights. As a result, we shall
proceed directly to the merits of those issues.
/5 See, e.g., AETC, 523 U.S. at 679 (noting that
"the government creates a designated public forum
when it makes its property generally available to
a certain class of speakers," but does not "when
it does no more than reserve eligibility for
access . . . to a particular class of speakers,
whose members must then, as individuals, obtain
permission to use it") (internal quotation marks
and citations omitted); Chicago Acorn v. Metro.
Pier & Exposition Auth., 150 F.3d 695, 700 (7th
Cir. 1998) (holding that meeting rooms at Chi-
cago’s Navy Pier were a nonpublic forum, due to
the "[s]electivity and restriction" that informed
governmental decisions to rent those rooms to the
public).
/6 For example, Village Attorney Heise defined a
civic event as one "related to a citizen’s rela-
tionship with government." R.35, Ex.5 at 41.
Village Clerk Sokol defined the term as an event
that "has to do with the government and its
citizenry." Id., Ex.6 at 44. Jankowski, the
senior administrative clerk, defined "civic" as
referring "to the relationship between the citi-
zens of Oak Park and the manner in which they are
governed." Id., Ex.4 at 32.
/7 The court noted, for example, that the Village’s
definition of "civic" was in accord with the
dictionary definition of that term as meaning
"’of, relating to, or belonging to a city, a
citizen, or citizenship.’" R.66 at 12 (quoting
Webster’s II New Riverside University Dictionary
(1984)). The court also found that, prior to this
litigation, the Village had applied this require-
ment in line with its stated definition by grant-
ing access to candidates’ forums for local elec-
tions and a congressman’s town hall meeting, but
denying access to, among others, the Oak Park-
River Forest Symphony Orchestra, Ameritech and
Dean Witter Investment Services.
/8 More particularly, the court also found that the
1999 NDP assembly itself was non-civic because it
contained a number of hymns, discussion regarding
biblical passages and "the church itself" and
prayer invoking the names of God and Jesus
Christ. R.103 at 7-8.
/9 As to the reasonableness of the "civic program or
activity" requirement, the district court found
that "[n]o one doubts that limiting the public’s
use of the Village Hall to programs or activities
of a civic character" was a reasonable restric-
tion that the Village was entitled to make. R.66
at 6.
/10 The Court also noted that the school’s denial of
access to the Club was no different than a
university’s denial of funding to an otherwise
eligible student organization on the ground that
the organization published a newspaper from a
Christian perspective that challenged Christians
to "’live, in word and deed, according to the
faith they proclaim and . . . encourage[d] stu-
dents to consider what a personal relationship
with Jesus Christ means.’" Good News Club v.
Milford Cent. Sch., 121 S. Ct. 2093, 2101-02
(2001) (quoting Rosenberger v. Rector & Visitors
of Univ. of Va., 515 U.S. 819, 826 (1995)).
/11 Once it is clear that the use of prayer or
biblical instruction does not transform an event
whose purpose is focused on civic subject matter
into "religious" subject matter, we do not be-
lieve that it will be difficult or overly intru-
sive for the Village to distinguish between civic
and non-civic events. To qualify for use of the
Village Hall facility, the primary purpose of the
event must still be a civic one, as the Village
has defined the term. The Village would not
engage in viewpoint-based discrimination under
its Use Policy if it denied permission to conduct
worship services held as part of a faith’s regu-
lar religious regimen and bearing no relationship
to a specific civic purpose. Such services would
not be able to meet the Village’s requirement
that an event have as its primary purpose provid-
ing a "civic program or activity." Cf. Good News,
121 S. Ct. at 2103 n.4 (concluding that the
Club’s activities did not constitute "mere reli-
gious worship, divorced from any teaching of
moral values [a permissible subject matter in the
forum]").
/12 See, e.g., R.35, Ex.5 at 47 (deposition of Ray-
mond Heise) ("Well, they’re based on a belief in
prayer. They express a . . . viewpoint that
espouses prayer, and that is exactly what we’re
trying to avoid is espousing particular points of
view. . . . Prayer, as in praying for government,
promotes prayer. It espouses a view in prayer as
a value."); id., Ex.6 at 125 (deposition of
Sandra Sokol) (answering "Yes" when asked "And is
the way in which [the NDP assembly] failed to
meet [the "promote or espouse" requirement]
because it promoted or espoused the philosophy of
religion?").
/13 See MacDonald v. City of Chicago, 243 F.3d 1021,
1028 (7th Cir. 2001) (holding that unbridled
discretion not conferred by Chicago ordinance
regarding parade permits, when ordinance required
granting of permit unless specifically articulat-
ed public safety concerns existed, such as wheth-
er parade "unnecessarily interfere[s] with traf-
fic in the area contiguous to the route"), peti-
tion for cert. filed, 69 U.S.L.W. 3791 (U.S. June
11, 2001) (No. 00-1839); Graff v. City of Chica-
go, 9 F.3d 1309, 1317-19 (7th Cir. 1993) (holding
that Chicago ordinance regulating whether to
grant a license for newsstands did not confer
unlimited discretion, when ordinance contained
six criteria for making that determination, such
as whether "the design, materials and color
scheme [of the stand] comport with and enhance
the quality and character of the streetscape" or
the "extent to which services that would be
offered by the newspaper stand are already avail-
able in the area" and when the ordinance also
allowed for the removal of newsstands that met
criteria such as endangering public safety or
property, interfering with traffic or interfering
with the use of display windows).
/14 Lastly, in seeming contrast to Mr. Heise’s expla-
nation that the requirement is not met unless an
event appeals to the population generally, Jan-
kowski stated that, in his opinion, the require-
ment was not concerned with whether there was or
would be any public interest in a particular
event.