Petition for Writ of Certiorari — Knights of Columbus v. Town of Lexington

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IN THE

Supreme Court of the Anited States

KNIGHTS OF COLUMBUS, COUNCIL #94,

LEXINGTON, MASSACHUSETTS; et al.,

Petitioners,

TOWN OF LEXINGTON, et al.,

Respondents.

ON A PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CHESTER DARLING

Counsel of Record

306 Dartmouth Street

Boston, Massachusetts 02116

(617) 536-1776

February 27, 2002

wer ene cc

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

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QUESTIONS PRESENTED FOR REVIEW

(1) Whether a facially content neutral regulation ban-

ning all unattended structures in a traditional public

forum, the display of the créche in this case, enacted

and motivated in response to citizens who opposed

the display, violated the free speech and free exercise

rights of petitioners protected by the First and Four-

teenth Amendment rights of petitioners.

(2) Whether a generalized fear by government that a

public forum might be aesthetically damaged by the

threatened displays of others, constituted a significant

enough governmental interest to justify a ban on all

unattended structures in a traditional public forum,

or whether such governmental action violated peti-

tioner’s free speech and free exercise rights protected

by the First and Fourteenth Amendments of the

United States Constitution.

PARTIES TO THE PROCEEDING

The plaintiffs are the Knights of Columbus, Coun-

cil #94, Lexington, Massachusetts and Michael J.

O’Sullivan, who brings this action individually and as

Grand Knight of the Knights of Columbus, Council

#94, Lexington, Massachusetts.

The defendants are the Town of Lexington, the

Board of Selectman of the Town of Lexington and the

members of the Board of Selectmen: Jeanne K.

Krieger, Catherine M.D. Abbott, Elizabeth B. Eddison,

Peter D. Enrich, and Dawn E. Mckenna. The natural

defendants are sued in their official capacities.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..............c000. i

PARTIES TO THE PROCEEDING ..........cecccccesccececeees ii

SAME CIE FSET OME UI occsncccccccscscessesccacceccscceccncase v

I 1

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CONSTITUTIONAL AND STATUTORY

PEAT V EO IETD LIUVOLVIELD oo. ccccccccescscasesscsecsocsene 2

STATEMENT OF THE CASE .............cccccssscccesssssscccees 3

REASONS FOR GRANTING THE WRIT. ...............00005. )

Il.

THE LOWER COURT ALLOWED A

HECKLER’S VETO OF

PETITIONER’S SPEECH INA

TRADITIONAL PUBLIC FORUM. ......... 6

A. Because the regulation was

not content neutral and

because it intruded on an

eighty year tradition of

speech and religious

exercise, it deserved to be

examined beyond its mere

RII aig ide ee 13

PRESERVATION OF THE

AESTHETICS OF THE GREEN IS

INSUFFICIENT GROUNDS TO

PROHIBIT DISPLAYS THAT DO

NOT DAMAGE THE GREEN. .............. 17

A. The regulation, standing

alone, touches on displays

that are both

communicative and non

communicative, and serves

no legitimate government

interest as it was enacted in

anticipation of aesthetic

damage that was not in the

record and may never

RUSSERT ers Epes PROT 18

B. Any legitimate

governmental interest could

have been achieved by far

less intrusive measures,

including waiting until

threats to flood the town

with permits actually

materialized. The selectmen

should have exercised their

duty to issue permits in a

responsible manner,

applying “time, place and

manner” considerations

Es dvs thecicicendcccatosncnns 19

I IRIN senciicetinienachainshinbinmeensdatkienqaiacioniniceiesn 21

API icicstintesintiiinindainaidainsoninens follows Conclusion

APPENDIX A

Opinion of the United States Court of

Appeals for the First Circuit Upholding

Summary Judgment for the Respondents

Appendix to Opinion:

Rules and Specifications Regulating

the use of the Battle Green (as

GUNES BE DOOD asco nicdseicscasssdsscoccsceces, l6a

APPENDIX B

Judgment of the United States Court of

Appeals for the First Circuit Upholding

Summary Judgment for the Respondents

sansadenchsakbedpebbindehesbiodaisaceiisidicbsbitéaldsisinesieats.: 23a

APPENDIX C

Judgment of the District Court .................. 24a

APPENDIX D

Report and Recommendation of the

IN Aeietainnsiitiismnticntinincgi att 27a

APPENDIX E

Rules and Specifications Regulating the

use of the Battle Green (as adopted in

BONNY sidaisasesinssssbdsbhighicaatglnedaueel cocci ies 67a

TABLE OF AUTHORITIES

CASES:

Boos v. Barry, 485 U.S. 312 (1988) o..ceeccccccscceece. 10

Bursen v. Freeman, 504 U.S. 191 PRIMED iibnssceceskacd 20

Capitol Square Review and Advisory Board v.

Pinette, 515 U.S. 753 (1995) 0.0.0... 12, 13, 20

Church of Lukumi Babalu Aye v. City of Hialeah,

aD WMD. THe CMO ditathsrechaiecencsice: 12, 15, 17

Clark v. Community for Creative Non Violence,

DOR A, Fe U0 behitscrentteai 10n

Forsyth County, Georgia v. Nationalist Socialist

Movement, 505 U.S. 123 (1992) ...............006. 10

Graynard v. City of Rockford, 408 U.S. 104

CRD T ED cccccccciccsencscctenssensatedsuncnaldeuietbaanaiasatianes 10

Hustler Magazine, Inc. v. Falwell,

GOS UD. 4G (RGGED ccccccccccesecsscsnstccsscsencscsscous 10

Knights of Columbus v. Town of Lexington,

124 F. Supp. 2d 119 (D.Mass. 2000)

ee ne 2

Knights of Columbus v. Town of Lexington,

138 F. Supp. 2d 136 (D.Mass. 2001)

EC 2

Riley v. National Federation of the Blind,

467 UB. TEE CHpee ccccceeersseicaeen 14n

Southeastern Promotions Ltd. v. Conrad,

4B UD. GOS THOT ctcstnecisttecmistintetiiamnen 14

Tinker v. Des Moines, 393 U.S. 503 (1969) .............. 12

United States v. Grace, 461 U.S. 171

EQIIEEEE <cccoccocscnussusendicuaibaneiaancnaen 10n, 15, 19

Ward v. Rock Against Racism, 491 U.S. 781

CRIIGD cccccccsscssccossenpegevcseuiieabamecaal 10n, 15, 19

CONSTITUTIONAL PROVISIONS:

Amendment I to the Constitution of the

Cee GRMIOG ccchcdccenstucendindancdaiaiie 2, 12, 20

vii

STATUTES:

United States Code

I 2

he 2, ee ee 2

28 U.S.C. 881331, 1343 .................00066..... y

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No.

IN THE

Supreme Court of the United States

KNIGHTS OF COLUMBUS, COUNCIL #94,

LEXINGTON, MASSACHUSETTS; et al.,

Petitioners,

TOWN OF LEXINGTON, et al.,

Respondents.

ON A PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

seuninietneeenimeies

—a ou

PETITION FOR A WRIT OF CERTIORARI

asuinieneienemmnl

aieiiianieneneadl

Petitioners, the Knights of Columbus, Council #94,

et al, respectfully pray that a Writ of Certiorari issue to

review the decision entered by the United States

Court of Appeals for the First Circuit, dated November

29, 2001 (App. la- 22a).

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the First Circuit upholding summary judgment for

the respondents (App. la - 22a) is reported at 272

F.3d 25 (lst Cir. 2001). The Decision of the District

Court is reproduced at App. 24a - 26a. The Report

and Recommendation of the Magistrate is reproduced

at App. 27a - 66a.

Additional decision in this case, which are not di-

rectly relevant to this petition are reported at: Knights

of Columbus v. Town of Lexington, 138 F. Supp. 2d

136 (D.Mass. 2001) (Motion for protective order

granted in part, denied in part); Knights of Columbus

v. Town of Lexington, 124 F. Supp. 2d 119 (D.Mass.

2000) (denying petitioner’s motion for a preliminary

injunction).

JURISDICTION

The judgment of the Court of Appeals was entered

on November 29, 2001. A rehearing en banc was not

sought by either party. This Court has jurisdiction

under 28 U.S.C. §1254(1).

Jurisdiction was appropriate in the Court of Ap-

peals under 28 U.S.C. §1291 following the entry of a

final judgment by the District Court. Jurisdiction in

the District Court was proper under 28 U.S.C. §§1331

and 1343(a)(3)-(4).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Free Speech and Free Exer-

cise Clauses of the First Amendment to the Constitu-

tion of the United States as applied to the states

through the Fourteenth Amendment. “Congress shall

make no law respecting an establishment of religion,

or prohibiting the free exercise thereof; or abridging

the freedom of speech.” U.S. CONST. amend. I.

The Town of Lexington’s Rules and Specifications

Regulating the Use of the Battle Green are too long to

reproduce here and are included in the appendix at

16a - 22a (2000 amendments) and 67a - 70a (1986

version).

STATEMENT OF THE CASE

This case involves an amendment to the town’s

regulations governing the use of the Battle Green in

Lexington Massachusetts, site of the opening battle of

the American Revolution. The amendment was en-

acted to deal with the longstanding division within the

Town over the presence of a privately owned créche

(Nativity Scene) on the Battle Green.

The Battle Green of Lexington is the former town

common, deeded to the residents of Lexington as a

place to construct their parish church/meetinghouse.

The meetinghouse and its expansions were in use on

the Green from 1692 to 1848. It was adjacent to the

church/meetinghouse where the minutemen of Lex-

ington gathered and fought on April 19, 1775 and

where seven of them remain buried today, the first

casualties of the American Revolutionary War.

The church/meetinghouse is now gone, replaced

by a stone pulpit and bible marking its former loca-

tion.

The Battle Green has remained a focal point of re-

ligious activity for the people of Lexington and the

parties have agreed that the Green is a public forum.

One form of religious worship practiced on the Battle

Green since at least the beginning of the last century

has been the placement of a créche during the periods

of Advent and the Epiphany, which make up the

Christmas Season in the Christian tradition. The

Town itself was once responsible for the maintenance

and placement of the créche, but in 1973, the Lexing-

ton Council of the Knights of Columbus and the

Simon W. Robinson Lodge, Ancient Free and Accepted

Masons, both fraternal Orders of Lexington, assumed

the ownership interest of the créche and its display on

the Battle Green through 1999 with a plaque describ-

ing the créche as a private display.

The Green has been used as a gathering place for

the expression of all views: political, religious, per-

sonal, public, parades, foot races, weddings, military

ceremonies conducted by military Chaplains, patriotic

reenactments, sunrise services, prayer vigils, union

protests, press conferences, Halloween parades, labor

rallies, a diversity festival, Easter sunrise services,

peace vigils, , reenlistment ceremonies, interfaith ser-

vices, protests over the exclusion of the créche, pro-

tests over the display of the créche, and community

bazaars. —

In 1998 the placement of the créche on the Green

by the petitioners became a matter of public dispute.

The widely publicized issue was addressed by a group

formed by a committee of clergymen and laymen, the

group was eventually called the “Meeting Ground”.

The Meeting Ground through its leader, Rev. Cohen,

reported to the Selectmen their suggestions and rec-

ommendations as to the placement of the créche on

the Green, and in 1999 the Board of Selectmen per-

mitted the créche on the Green for a three week pe-

riod.

Subsequent to the Board’s decision to allow the

three week display in 1999, it began receiving re-

quests to allow a wide range of religious structures on

the Green for comparable periods. The Meeting

Ground again reported to the Selectmen, a public de-

bate ensued, and on July 24, 2000, the Selectmen

voted 4 to 1 to ban all unattended structures from the

Green. It also made other modifications in the rules

and regulations regarding the conduct of activ'ties on

the Battle Green.

On October 30, 2000, the Selectmen voted to deny

the appellants a permit to display their créche. The

appellants sought preliminary injunctive relief against

the defendants in their Complaint in the District

Court, Docket No. 00-12360 N.G., in connection with

the deprivation under color of law of the plaintiffs’

rights as guaranteed by the Constitution of the United

States, particularly the First and Fourteenth Amend-

ments to the Constitution of the United States. The

action was also brought under Title 42 United States

Code §1983. The jurisdiction of the Court was in-

voked pursuant to 28 U.S. C. §§ 1331, 1343(a)(3) and

(4) and 2201. Supplemental jurisdiction was sought

over all state claims. Venue was proper under 28

U.S.C. §1391(b), as the defendants were located in the

District of Massachusetts and the cause of action

arose in the District of Massachusetts.

After some discovery, cross motions for Summary

Judgments were heard by Dein, U.S. M. J. and on

August 7 2001, the Magistrate issued her report and

recommendation on the cross motions for Summary

Judgment.

The District Court Judge, Nancy Gertner, approved

and affirmed the report of the magistrate and on No-

vember 29, 2001 entered Summary Judgment for the

appellees and dismissed the case.

The appellants appealed through the United States

Court of Appeals, First Circuit, Docket No. 01-2460,

and on November 29, 2001, the Summary Judgment

in the District Court was affirmed by the United

States Court of Appeals for the First Circuit, rejecting

the plaintiffs’ claims that their right of free speech and

free exercise were violated by the government..

REASONS FOR GRANTING THE WRIT

The right of free speech and free exercise in a tra-

ditional public forum was destroyed by a blatant con-

tent-based heckler’s veto that was ratified by the Cir-

cuit Court of Appeals.

The court below, applying intermediate scrutiny,

accepted at face value what was clearly pretextual and

anecdotal reasoning, as sufficient justification to ban

unattended structures in a public forum, that tar-

geted a nativity display in this case, whose message is

centuries old and whose symbolism is inextricably in-

tertwined with Petitioner’s speech, central religious

beliefs and longstanding public expression. The stan-

dard of review, because the vote was content based,

should have been strict scrutiny.

The ruling succeeded in shielding government offi-

cials in the town of Lexington, Massachusetts from

the discomfort and unpleasantness of standing up to

a small but vocal band of hecklers whose principle

weapon was a crude threat to flood the town with

other display requests if the town did not relent. The

court below created a new precedent that will enable

other municipalities, using the same pretextual and

anecdotal reasoning, to exclude a unique form of reli-

gious expression that has been traditionally displayed

in public forums across our nation.

The First Circuit’s broad application of its version

of a “content neutral” template can now serve as a

precedent to banish more than the religious expres-

sion and speech represented by devotional displays

such as Petitioner’s créche. Other religious expres-

sions, parades, processions and festivals, can be re-

moved from the streets and parks of our nation by the

simple expedient of enacting “facially content neutral”

regulations.

Here, a complete genre and unique form of public

worship has effectively been banned from the public

square.

I. THE LOWER COURT ALLOWED A HECKLER’S

VETO OF PETITIONER’S SPEECH IN A TRADI-

TIONAL PUBLIC FORUM.

In response to a series of threats from vocal private

individuals to flood the town of Lexington, Massachu-

setts with requests to erect numerous other displays

on Lexington Green if the town did not remove the

créche from the Green, the town board adopted a

regulation of speech explicitly targeting the elimina-

tion of the créche, even though the créche had been

displayed, unattended, during the period of the Ad-

vent to the Epiphany, for most of eighty years.! App.

at 8a - 9a (“the Board proposed the regulation only

after requests for permits for alternative religious dis-

plays began to sprout. . . Fearing a flood of applica-

tions and a corresponding cluttering of the Green, the

Board devised a regulation prohibiting all unattended

structures”). Id.2

The town board of Lexington, adopted a regulation

on July 24, 2000 that 1. limited the eligibility for pub-

lic expression on the Green to active events of less

than eight hours; 2. restricted display of ceremonial

structures to those that were “in connection with spe-

cial events and limited in duration to the period re-

quired for such events; and 3. created an explicit

prohibition against “placement on the Green of any

' unattended structure.” App. at 32a - 33a.

The court below ruled that the town’s action was

“a far cry from an invidious singling-out of the

créche.” Id.

Even a cursory review of the record below under-

mines such pronouncements.

In Lexington, Massachusetts it is no secret that

the créche has been a “source of friction within the

town” for some years. App. at 3a.

1 In 1999 after meetings with clergy and citizens, the Knights of

Columbus agreed to limit the display of the créche to three weeks.

App. at 4a. *

2 The town’s motivation, purpose and intended effect of the regula-

tion was to eliminate the créche from the Green. “There is no ques-

tion in the present case that the opposition to the créche moti-

vated the amendment to the regulations. . .” Report and Recom-

mendations on Cross Motions for Summary Judgment. Magistrate

Judith Gail Dein, U.S. Magistrate, August 7, 2001. App. 55a - 56a.

The court below described the atmosphere in 1999

as follows:

“(The town] began receiving requests to allow a

wide range of other religious structures on the

Green for comparable periods. One group de-

sired to place a sign near the créche indicat-

ing some citizens’ objections to its presence

on public land. Other applicants requested

permission for a display honoring witchcraft

at Halloween and for the erection of a pyramid

to honor the Egyptian Sun God Ra during the

month of April. Yet another resident inquired

about the possibility of erecting a Sukkah, an

open hut-like structure, to commemorate the

Jewish Harvest festival of Sukkoth.”

App. at 4a.3

Town selectmen responded to the threats by

adopting a new regulation specifically aimed at resolv-

ing the “problem” of the créche. The Chairman of the

3 While the court below cited to a half dozen requests, the record

below contained other requests and proposals that were not men-

tioned. For example: one suggestion was for the placement of a

skeleton and a ghost, another sought “a depiction of human sacri-

fice in commemoration of the Mayan or Aztec religious festivals,

which were oriented around blood letting’; another sought “a

commemoration of the religious Crusaders, which included the

burning of entire communities of Jews, and the sacking of Chris-

tian Constantinople”; still another sought “a statue of the late Flip

Wilson, in honor of his “Church of What’s Happening Now’; also,

another proposal surfaced “for a heard of live cows” on the Green

to honor the Hindu religion. Still another suggested that

“[a]lternatively, the town could simply ban all unattended displays

on the Battle Green. If anyone cares enough to stay up all night

with their religious or political displays for four weeks, maybe we

should let them have that opportunity. But having people shove

their fetishes in our faces and then walk away is just too much.”

Exhibit K, L: Appendix in Support of Defendant’s Motion for Sum-

mary Judgment.

Board of Selectmen for the town, speaking for the

Board, without contradiction, stated:

“At our meeting on July 10%, we directed the

town counselor to recommend changes in the

bylaws to eliminate freestanding, unattended

structures on the Battle Green. This directive

was the culmination of a process initiated by

the Board nearly two years ago to bring clo-

sure to whether - to the issue of whether to

continue to permit the placement of the

créche on the Green.. .”

Record Appendix, Vol. 2 at 412, Appeals Court, tran-

scribed from town videotape of town’s Board of Se-

lectmen’s meeting of July 24, 2000: also, response of

the town to Pl. statement 920, Chairman Jeanne K

Krieger, Board of Selectmen Meeting. Court of Appeals

App. 414-415, pursuant to the town’s response to

plaintiffs statement of undisputed facts, pursuant to

Rule 56.1 that were deemed admitted under local rule

56.1 for purposes of summary judgment.

“The Board of Selectmen is acting on our per-

sonal convictions and what we as individuals

believe represents the perspective of a major-

ity of the citizens of Lexington. As one col-

league said to me this weekend, there are

many church going Christians, many long

time residents of Lexington who recognize

that times have changed and that the display

of the créche on the Green is no longer appro-

priate. I would hope that our discussion this

evening will focus on the recommended

changes in the by-laws and enhancement and

the appropriateness of invoking what we be-

lieve to be the majority opinion of the Board,

and the majority opinion of the residents of

Lexington.”

Id. at 414.

The court below justified the town’s action, reason-

ing that the town was on the “horns of a dilemma”

App. at 4a,.* Capitulation to threats of disruption from

others is not content neutral. See, Graynard v. City of

Rockford, 408 U.S. 104, 117 (1972). ([E]xpressive ac-

tivity could not be prohibited because of a mere desire

to avoid discomfort and unpleasantness that always

accompany an unpopular viewpoint.” See also, For-

syth County, Georgia v. Nationalist Socialist Movement,

505 U.S. 123, 130-134 (1992). “Listeners’ reaction to

speech is not a content-neutral basis for regulation.”

Id. 134 (emphasis added). See also, Boos v. Barry, 485

U.S. 312, 322 (1988) (it would be inconsistent without

“longstanding refusal to [punish speech] because the

speech in question may have an adverse emotional

impact on the audience”), citing Hustler Magazine, Inc.

v. Falwell, 485 U.S. 46, 55 (1988). -

4 Petitioners argue that there is no dilemma. The ban penalizes a

substantial amount of protected speech by setting arbitrary time

limits and banning the unattended display of the créche during

prescribed periods that are religiously significant to Christians.

There was no offer to allow the petitioners use of a smaller or dif-

ferent portion of the Green, or to have the créche on the Green for

a reduced period of time as was previously agreed to by the town

and petitioners. There has never been a complaint about the size

of the display, or any complaint regarding the text of the sign iden-

tifying the créche as a private display. The town’s only suggestion

was that private property near the Green might be a more appro-

priate site. App. at 12a n.5, 63a: Alternative Avenues of Commu-

nication. Compare this Court’s treatment of unattended displays in

Clark v. Community for Creative Non Violence, 468 U.S. 288 (1984).

In Clark, the tents stayed up, while the conduct, sleeping and

camping in the park, was prohibited. In Ward v. Rock Against Ra-

cism, 491 U.S. 781 (1989) this Court allowed the concert to occur

but upheld a rule that the volume be turned down. In United

States v. Grace, 461 U.S. 171 (1983). this Court invalidated a

statute prohibiting leafleting and picketing adjoining Supreme

Court building, but permitted such activity on the sidewalk. A to-

tal ban was not necessary to achieve this end.

The lower court reasoned, if the town allowed for

the créche, it would have to allow for all other compet-

ing applications. App. 9a. The lower court then agreed

with the town that granting all applications “likely

would compromise the aesthetic and historic elements

of the Green.” App. at 4a. The pretextual nature of

this justification is clear from the record.5

The court below upheld the town’s action, because

it affected all unattended structures equally, regard-

less of the context or motivation that caused it to be

enacted. The substantial state interest was served

because the regulation was enacted, ostensibly, to

preserve the “aesthetics” of the forum. App. 15a-16a.

[Aesthetics issue addressed in Part II, infra.] Because

of the stated purpose, the lower court concluded that

the regulation was content neutral, and hence, a

5 “The minutes of the Board’s meetings reveal a keen awareness

that if it continued to allow a display of the créche, many of these

competing applications would have to be granted. . . . but granting

them all likely would compromise the aesthetic and historic ele-

ments on the Green.” App. at 4a. This statement by the court be-

low is flatly contradicted by the affidavit of Peter Enrich, a member

of the Board of Selectmen for the town. “The Board understood

that some or all of these potential applications were not serious,

and that the prospective applicants had no desire to actually erect

such structures on the Green. However, the Board also realized

that it nevertheless would be required to permit such displays on

the Green if the Board granted a permit for the créche.” Affidavit

of Peter Enrich, Record Appendix, Volume 1, Appeals Court, p.82.

Selectman Enrich also characterized the plaintiffs religious dis-

play as a “majority religious symbol” that hurt the feelings of some

residents and that some of the residents were alienated — that

they ‘didn’t belong’ and that the religious display was disenfran-

chising.” Pl. local rule statement; 56.1 Statement 25. Statement of

Undisputed Material Facts. Even if the court below misunderstood

the seriousness of the requests, the town did not. The court below

clearly abandoned its responsibility to strictly examine why a

unique form of public religious expression was eliminated from a

public forum. To cite to erogenous zoning cases and “concanta-

tions” of Establishment issues with no basis in the record demon-

strates how sadly the First Amendment was observed in this case.

proper exercise of the town’s regulatory powers. App.

at 1la-12a (“we hold that the total ban on unattended

structures is both content neutral and narrowly tai-

lored to achieve a substantial governmental interest”).

The court below was plainly wrong. Having an-

nounced that the regulation was content-neutral the

court below said it didn’t have to look further regard-

ing the context within which it was enacted. But the

context of the regulation was based entirely on the

content of expression, the display of the créche. The

court below declined to apply the scrutiny required of

such content based measures as articulated by this

Court in Church of Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 540 (1993). [Discussed, infra.]

The actions of the court below amounted to ratifying a

heckler’s veto.

“Because speech is often provocative and chal-

lenging, and may strike at prejudices and pre-

conceptions and have profound unsettling ef-

fects as it presses for acceptance of an idea,

freedom of speech, though not absolute is

nevertheless protected against censorship, or

punishment, unless shown to produce a clear

and present danger of a serious substantive

evil that rises far above public inconvenience,

annoyance or unrest.”

Id., citing U.S. Constitution, Amend 1. See also Capi-

tol Square Review and Advisory Board v. Pinette, 515

U.S. 753, 761 (1995). See, also, Tinker v. Des Moines,

393 U.S. 503, 508-509 (1969).

A. Because the regulation was not content

neutral and because it intruded on an

eighty year tradition of speech and reli-

gious exercise, it deserved to be exam-

ined beyond its mere words.

Because it denominated the regulation as content

neutral, the lower court applied intermediate scrutiny.

App. at 9a, and its improper application of the Capitol

Square decision, the court committed clear error.

Capitol Square, 515 U.S. 761.6

Petitioners argue that the regulation was not con-

tent neutral, precisely because it was adopted to ad-

dress “the problem” of the créche, and because of

this, strict scrutiny should have been the standard.

“The strictest standards apply here.” Capitol Square,

915 U.S. at 761. But regardless, the ban cannot with-

stand either intermediate or strict examination be-

6 The evident reliance of the court below on Capitol Square, 515

U.S. 753 (1995) as permitting a complete ban on unattended dis-

plays is misplaced. Capitol Square involved the placement of a

Roman Cross adjacent to the state house in Columbus Ohio. The

sole issue in the case was the Establishment Clause. In the judg-

ment and other opinions, the Justices made a number of observa-

tions and qualification regarding the nature of the forum involved

in the case. These discussions are informative. In the decision,

Justice Scalia stated, “a ban on all unattended displays, which did

not exist here, might be [a reasonable, content-neutral time, place,

and manner restrictions].” Jd. at 761; Justice Souter in his opinion

Id. at 784, described such areas as “in forums around pubic

buildings and “in the area around the seat of government.”; Jus-

tice Stevens, in his dissent stated, “may impose a ban in such a

forum” Id. at 803, and “in front if its seat of government” id. at

806. Unlike the forum at issue in Capitol Square, the present case

involves a traditional common, separate from the seat of govern-

ment. Lexington Green is not comparable to the Plaza immediately

adjacent to the lawn of a Capitol building. It is the situs of the

complete spectrum of private, religious, political, military, patri-

otic, union and governmental speech.

cause it was impermissible state action in the form of

a heckler’s veto. ”

The court below adopted mere speculation of what

might occur as sufficient grounds to prohibit Peti-

tioner’s expressive activity, a standard never adopted

by this Court.

Where free speech is concerned, it has been the

rule that government not place undue burdens until

after the speaker has spoken and some damage had

been done. Southeastern Promotions Ltd. v. Conrad,

420 U.S. 546, 545 (1975).

There is no dispute in this case that the display of

the créche on Lexington Green is a free speech activ-

ity in a public forum. “[T]he town does not deny that

the Knights have a free speech interest in exhibiting

the créche or that the Green is a public forum.” App.

7a8 “The Free Speech Clause of the United States

Constitution lies at the heart of the Knights’ appeal.”

App. 6a.

7 Petitioners would also argue that the créche is pure speech.

“Thus where, as here, the component parts of a single speech are

inextricably intertwined, we cannot parcel out the speech, apply-

ing one test to one phrase and another test to another phrase.

Such an endeavor would be both artificial and impractical. There-

fore, we apply the test for fully protected expression.” Riley v. Na-

tional Federation of the Blind, 487 U.S. 781, 796 (1988).

8 The lower court stated there was a concantation of Establish-

ment Clause questions in this case. App. at 10a. The only Estab-

lishment clause issue identified in the record and in the decision

of the court below are its conclusory statements of how the Estab-

lishment Clause is applied. App. 10a-12a, 15a. The selectmen’s

belief that allowing one religious display on the Green while disal-

lowing all others would implicate the Establishment Clause was

well founded. But that is not the case here. The Petitioners never

asked that they be the only religious display on the Green. Nor can

a serious argument be made regarding misattribution as the

Knights continued to display the créche with its identifying plaque.

Public places “historically associated with the free

exercise of expressive activities, such as streets, side-

walks, and parks, are considered . . . public forums

for such expressive activity.” Grace, 461 U.S. at 177.

The Lexington Green has been utilized by residents to

communicate thoughts and ideas. Because of its his-

toric usage, it cannot be regulated out of use for pri-

vate displays, attended or unattended for anything

but a compelling governmental interest — an interest

that is absent in this case. Lexington Green is an ex-

ceptionally active forum where numerous types of

speech and expressive activities occur.

The court below skirted the issue of motivation,

purpose, and intended effect.

“Relevant evidence [the court should have con-

sidered] includes, among other things, the

historical background of the decision under

challenge, the specific series of events leading

to the enactment or official policy in question,

and the legislative or administrative history,

including contemporaneous statements made

by members of the decision making body.

These factors bear on the question of dis-

criminatory object.”

Church of the Lukumi Babalu Aye, 508 U.S. at 540

(internal citation omitted).

Because the lower court acknowledges, and the

record of this case demonstrates, that the regulation

was adopted in response to threats from third parties

the decision of the court should not stand. “Govern-

ment regulation of expressive activity is content neu-

tral so long as it is justified without reference to the

content of the regulated speech.” Ward, 491 U/S. at

791.

In this case, the issue of the créche being placed

on the Green was discussed repeatedly at town board

meetings. App. at 4a. It had been an issue since 1973.

It was a “problem”, Id. In 1998 clergy and citizens

with different viewpoints met to address the issues

raised by those who objected to the display on the

Green. An agreement was reached in 1999 to limit the

period of display of the créche to three weeks. When

the Board agreed to a three-week display, a series of

orchestrated requests began to sprout in the town.

Rather than treat each request separately, the

town chose to ban all unattended structures, thus

making the display of the créche on the Green in all

practicality an impossibility. The court below improp-

erly concluded that it is “because they are now held to

the same standard as all other similarly situated ap-

plicants.” that they feel burdened. App. at 9a. The “all

other similarly situated applicants” did not exist.

Moreover it was acknowledged in affidavit that most, if

not all the requests were not to be taken seriously.

Supra at fn 4. The transparency of this rationale of-

fered can be seen from the fact that it was not until

1999 that requests for permits began pouring in to

the town.

The fact that the language of the regulation is fa-

cially neutral does not shield it as content neutral

simply because the word “créche” or “religion” is not

mentioned.

“Facial neutrality is not determinative. The

Free Exercise Clause, like the Establishment

Clause, extends beyond facial discrimination.

The Clause ‘forbids’ subtle departures from

neutrality and covert suppression of particu-

lar religious beliefs. Official action that targets

religious conduct for distinctive treatment

cannot be shielded by mere compliance with

the requirement of facial neutrality. The Free

Exercise Clause protects against governmen-

tal hostility which is masked, as well as overt.

The Court must survey meticulously the cir-

cumstances of governmental categories to

eliminate, as it were, religious gerrymander-

ing.”

Church of Lukumi Babalu Aye, 508 U.S. at 533 -534

(internal citations omitted).

In this case it is undisputed that the regulation

was adopted in response to protests from third parties

who, after eighty years, started threatening the town

that if it didn’t do something about the créche, they °

would flood the town with requests to place similar

structures on the Green

II. PRESERVATION OF THE AESTHETICS OF THE

GREEN IS INSUFFICIENT GROUNDS TO PRO-

HIBIT DISPLAYS THAT DO NOT DAMAGE THE

GREEN.

As noted, supra, fn. 3, the challenged regulation

was not adopted to address any detrimental use of the

Green by petitioners. Nor was the regulation adopted

out of any legitimate concern that the “historic” use of

the Green would be compromised.? Nor is there any

record of the Knights receiving favorable treatment

over others. There were no others..There was no vote

to dislodge the créche from the Green until after the

1999 threats surfaced. Yet, aesthetics and historic

usage, are the very two reasons given for the regula-

tion. “[G]ranting [all permits] would compromise the

aesthetic and historic elements of the Green.” App. at

4a. This rationale used to ban all unattended struc-

9 “Plaintiffs do, with justification, take exception to the fact that

the defendants are now arguing that the presence of an unat-

tended expressive structure on the Green is incompatible with its

historic use and destroys its aesthetic value. See, e.g., Enrich Aff.

9131-34; Kreiger Aff. At 46,7. Since the créche has been dis-

played on the Green for eighty years it is difficult to give credence

to the defendant’s present description of the harm that is likely to

occur if the display is allowed to continue.” Report and Recommen-

dations on Cross Motions for Summary Judgment. Magistrate Ju-

dith Gail Dein, U.S. Magistrate, August 7, 2001. App. 60a.

tures was little more than speculative, based on fu-

ture activity that may or may not have caused any

damage.

A. The regulation, standing alone, touches

on displays that are both communicative

and non communicative, and serves no

legitimate government interest as it was

enacted in anticipation of aesthetic

. damage that was not in the record and

may never occur.

_ The town’s assertion that it was banning all unat-

tended structures to preserve the aesthetic and his-

toric use of the green, standing alone, touches both

protected speech and non communicative displays

such as bandstand seating for various events or a

truck trailers that continue to be placed on the Green

for days before events.

The evil the town ostensibly sought to eliminate:

reduce clutter or prevent damage to the park, and

preservation of historic use by banning all unattended

structures has no basis in fact, since for eighty years

the créche has been displayed and there has been no

damage to the park, and the créche is part of the his-

toric use. It has been deemed by the trial court to

have done no harm during its 80 years on the Battle

Green. App. 60a.

Moreover, a ban on all unattended displays does

not include displays authorized by the town. The town

has been unable to say exactly what it is about a pri-

vate display that negatively affects the park that a

town structure does not. Nor is it clear why an unat-

tended display causes more damage than an attended

display. A strong case, in fact, can be made that the

act of erecting and disassembling a créche daily for

the three days suggested would be more destructive

and unsightly than simply leaving it up for the period

for which earlier permits had been issued.

The regulation is clearly not narrowly drawn and

addresses no legitimate evil. See, Ward, 491 U.S. at

799 n.7 (“A ban on handbilling, of course, would sup-

press a great quantity of speech that does not cause

the evils that it seeks to eliminate, whether they be

fraud, crime, litter, traffic congestion, or noise. For

that reason, a complete ban on handbilling would be

substantially broader than necessary to achieve the

interests justifying it” (internal citation omitted)) See

also, U.S. v. Grace, supra.

Moreover, punishing speech and expressive activ-

ity of one party for fear that the town may have to

clean litter, or maintain its public parks because of

the damage that may be caused by others, has never

been grounds to enact a regulation banning all unat-

tended structures. There is simply no correlation be-

tween an unattended Nativity Scene and any damage

that might occur, sufficient to warrant such a Draco-

nian enactment.

B. Any legitimate governmental interest

could have been achieved by far less in-

trusive measures, including waiting until

threats to flood the town with permits

actually materialized. The selectmen

should have exercised their duty to issue

permits in a responsible manner, apply-

ing “time, place and manner” considera-

tions appropriately.

The legitimate governmental interest in preserving

the aesthetic and historic use of the Green could have

been met by a far less harsh rule, stopping far short of

prohibiting the display of the créche during the period

requested. As noted supra, town officials doubted the

legitimacy of the requests for usage that were offered

by others.

It was wholly unjustified to ask the Petitioners to

endure the burden of erecting and disassembling the

créche daily and leaving it standing for no longer than

eight hours, and further limiting their religious obser-

vances to three days, simply to mollify town dissi-

dents. The court below should have applied strict

scrutiny because of the conditions under which the

regulation came about. “To survive strict scrutiny...

a State must do more than assert a compelling state

interest - it must demonstrate that its law is neces-

sary to serve that interest.” Bursen v. Freeman, 504

U.S. 191, 199 (1992).

Religious displays and free exercise of those beliefs

in public places is to be revered. “Our precedent es-

tablishes that private religious speech, far from being

a First Amendment orphan, is as fully protected un-

der the Free Speech Clause as secular private expres-

sion.” Capitol Square, 515 U.S. at 760 (internal cita-

tions omitted).

“[Pjarticular expressive activity could not be pro-

hibited because of a mere desire to avoid discomfort

and unpleasantness that always accompany an un-

popular viewpoint.” Graynard, 408 U.S. at 117. Yet,

avoiding discomfort and unpleasantness was exactly

the motivation for adopting the regulation as noted,

supra. It was the “only” reason. There is not a single

reference in the case below that the créche negatively

affected the aesthetics of the Green. The fact that the

créche has been displayed for eighty years makes it

unmistakably clear that its display at Christmas is

part of the historic usage of the Green.

The precedent established by this case can justify

the homogenization of citizens’ expression in public

forums and eliminate unique cultural and religious

displays or tableaus, such as the créche in this case.

It is constitutionally impermissible for government to

deem what expression is “appropriate” nor is it proper

for government to shape the form of citizens’ expres-

sion in a public forum.

The Petitioners hereby respectfully submit that a

per se ruling by this court that would apply “strict

scrutiny” to any regulation of free speech in a tradi-

tional public forum be adopted.

CONCLUSION

Petitioners pray that certiorari will issue.

Respectfully submitted,

CHESTER DARLING

Counsel of Record

306 Dartmouth Street

Boston, MA. 02116

(617) 536-1776

Appendix Table Of Contents

APPENDIX A

Opinion of the United States Court of

Appeals for the First Circuit Upholding

Summary judgment for the Respondents. ............. la

Appendix to Opinion:

Rules and Specifications Regulating

the use of the Battle Green (as

SE IR A l6a

APPENDIX B

Judgment of the United States Court of

Appeals for the First Circuit Upholding

Summary judgment for the Respondents. ......... 7. 20a

APPENDIX C

Judgment of the District Court........................ eee 24a

APPENDIX D

Report and Recommendation of the Magistrate ....27a

APPENDIX E

Rules and Specifications Regulating the use

of the Battle Green (as adopted in 1986) .............. 67a

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 01-2460

KNIGHTS OF COLUMBUS, COUNCIL #94, ET AL.,

Plaintiffs, Appellants,

Vv.

TOWN OF LEXINGTON ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,

and Singal, District Judge.

Chester Darling, with whom Robert Roughsedge

and Michael Williams were on brief, for appellants.

Jordana Glasgow, with whom Daryl Lapp and

Palmer & Dodge, LLP were on brief, for appellees.

November 29, 2001.

Opinion of the Appeals Court

SELYA, Circuit Judge. This appeal requires us to

decide whether the Town of Lexington, Massachusetts

(the Town) violated the First Amendment by adopting

a regulation that bans unattended structures from the

historic Battle Green. The plaintiffs allege that this

regulation infringes their First Amendment rights and

that the Town adopted it for an improper purpose,

viz., to exclude the annual religious display of a

créche from the Battle Green. They also allege that, in

all events, the Town's selective application of the

regulation following its adoption fenders it

constitutionally infirm.

The district court found these’ charges

unpersuasive and granted summary judgment in the

Town's favor. We affirm: the record shows beyond

hope of contradiction that the ban on unattended

structures is a content-neutral restriction on the time,

place,.and manner of speech, narrowly tailored to

achieve a_ significant governmental interest and

framed so as to allow access to ample alternative

avenues of communication. By the same token, there

is no violation of the Free Exercise Clause because the

regulation is a neutral law of general applicability.

Lastly, the plaintiffs’ claims of selective enforcement

fail due to evidentiary insufficiency; the regulation

was only intended to apply to private parties, and

there is nothing in the record that shows preferential

treatment in respect to any unattended structure

erected by such a party.

I. BACKGROUND

The situs of this controversy is the historic Battle

Green (the Green) — the very place where the first

battle of the Revolutionary War occurred. Seven of the

eight minutemen killed during the battle are buried

there, and the Minuteman Statue — located at the

apex of the Green — memorializes the American

colonists who fought in the Revolutionary War. The

Opinion of the Appeals Court

Green is a registered historic landmark, owned and

maintained by the Town.

The Town's governing legislative body is the Board

of Selectmen (the Board). The Board is entrusted with

suzerainty over, and protection of, the Green. In the

exercise of that function, the Board from time to time

promulgates rules governing the use of the Green.

Historically, these rules have allowed for a wide range

of public uses, including recreational activities and

activities involving the expression of political,

religious, and other views. The rules divide activities

on the Green into three categories: (1) allowed

activities, (2) forbidden activities, and (3) activities for

which a permit is required. To illustrate, picnicking in

small groups is allowed as a matter of right;

commercial solicitation is prohibited altogether; and

rallies are allowed if a permit is first obtained (but

otherwise are forbidden).

For most of the twentieth century, the créche — a

figurine representation of Christ's nativity in the

stable at Bethlehem — appeared on the Green for

roughly six weeks each year (in late November and

December). For some thirty years, the Town had

erected the créche, disassembled it, and stored the

components. In or around 1973, however, two

fraternal organizations — the Knights of Columbus

and the Masons — assumed responsibility for these

tasks.

There is evidence that the display of the créche

long has been a source of friction within the Town,

and that some residents complained bitterly about its

presence on the Green. For the most part, however,

the regulations, insofar as they pertained to the

créche at all, seem to have been honored more in the

breach than in the observance. Despite the fact that

the regulations have required a permit for a religious

display of this type since at least 1982, no permit ever

Opinion of the Appeals Court

was sought or demanded prior to the erection of the

créche in any year before 1999.

Beginning in the fall of 1998, the issue was

repeatedly discussed at the Board's meetings. A group

consisting of clergy and citizens with various

viewpoints was formed to study the problem and

suggest solutions. This committee reported to the

Board on September 27, 1999. It unanimously

concluded that "private citizens do have the right to

have religious observances on the common land

within guidelines established by the town,” but

suggested that a shortened display period might be a

reasonable compromise. For the 1999 season, the

owners of the créche, including the Knights of

Columbus, agreed to a display period of three weeks.

Subsequent to the Board's decision to allow the

three-week display, it began receiving requests to

allow a wide range of other religious structures on the

Green for comparable periods. One group desired to

place a sign near the créche indicating some citizens’

objections to its presence on public land. Other

applicants requested permission for a_ display

honoring witchcraft at Halloween and for the erection

of a pyramid to honor the Egyptian Sun God Ra

during the month of April. Yet another resident

inquired about the possibility of erecting a Sukkah,

an open hut-like structure, to commemorate the

Jewish harvest festival of Sukkoth.

The minutes of the Board's meetings reveal a keen

awareness that if it continued to allow a display of the

créche, many of these competing applications would

have to be granted. The Board thus believed that it

was on the horns of a dilemma: it could not

constitutionally pick and choose among competing

applications, but granting them all likely would

compromise the aesthetic and historic elements of the

Green. After seeking legal advice, the Board modified

the rules governing use of the Green in several ways.

Opinion of the Appeals Court

First, it limited permit eligibility for public expressions

on the Green to active events of less than eight hours

in duration. Second, it restricted displays of a

ceremonial nature to those "in connection with special

events and limited in duration to the period required

for such events." Third, it added an _ explicit

prohibition against "placement on the Green of any

unattended structure." For ease in reference, we

annex a copy of the regulation, as amended, as an

appendix to this opinion.

On October 19, 2000, the Knights of Columbus

and the organization's grand knight, Michael

O'Sullivan (collectively, the Knights), applied for a

permit to erect the créche on the Green. The

application was constructively denied, although the

Board intimated that a one-day event that included

the créche would be approved. !

Dismayed by the new regulation and the

concomitant ouster of the créche, the Knights sued.

Although they claimed abridgement of their free

speech and free exercise rights, the district court

refused to grant a preliminary injunction. Knights of

Columbus v. Town of Lexington, 124 F. Supp. 2d 119

(D. Mass. 2000). We summarily affirmed that denial in

an unpublished order.

In subsequent proceedings, the Knights attempted

to show arbitrariness in the enforcement of the new

regulation. They introduced evidence tending to prove

that bleachers and a platform truck were left

unattended on the Green for several days prior to a

Patriots’ Day celebration, and that an unattended

podium was allowed to remain overnight around

Memorial Day.

1 In point of fact, a Town resident was granted a permit to hold «

"live" nativity scene and service on the Green on December 23,

2000.

Opinion of the Appeals Court

In due course, the district court granted summary

judgment for the defendants (the Town and various

Town hierarchs). We expedited the Knights' ensuing

appeal in an effort to resolve the matter in advance of

the Christmas season.

Il. STANDARD OF REVIEW

We review a grant of summary judgment de novo,

examining the record in the light most favorable to the

nonmovant and indulging all reasonable inferences in

that party's favor. Suarez v. Pueblo Int'l, Inc., 229

F.3d 49, 53 (1st Cir. 2000). We will uphold the grant

of summary judgment only when there is no genuine

issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Here, the relevant facts are largely undisputed, so our

analysis focuses on the legal question of whether

either the new regulation or its application offend the

rust Amendment.

Ill. THE FREE SPEECH CLAIM

The Free Speech Clause of the United States

Constitution lies at the heart of the Knights’ appeal.

We organize our discussion of this claim in segments.

A. The Legal Framework.

The Free Speech Clause provides, in terms, that

"Congress shall make no law .. . abridging the

freedom of speech ... ." U.S. Const. Amend. I. Under

the aegis of the Fourteenth Amendment, this

prohibition applies equally to states and their political

subdivisions. See Cantwell v. Conn., 310 U.S. 296,

303 (1940). Despite the uncompromising language in

which this proscription is couched, it is not absolute.

The Supreme Court has articulated a framework ©

for determining whether a particular regulation

impermissibly infringes upon free speech rights. That

framework dictates the level of judicial scrutiny that is

due — and that choice, in turn, informs the nature of

the restrictions on free speech that may be

Opinion of the Appeals Court

permissible in a public forum. McGuire v. Reilly, 260

F.3d 36, 42 (1st Cir. 2001).

The triage works this way. The bedrock rule is that

government may not prohibit all communicative

activity in a public forum. Perry Educ. Ass'n v. Perry

Local Educ. Ass'n, 460 U.S. 37, 46 (1983). Content-

based prohibitions may endure — but only if they are

justified by compelling state interests. Capitol Sq. Rev.

& Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995).

Accordingly, such prohibitions engender strict judicial

scrutiny. See id. Content-neutral restrictions pose

less of a threat to freedom of expression.

Consequently, content-neutral restrictions on the

time, place, and manner of speech trigger an

intermediate type of scrutiny such that they will be

upheld as long as they are "narrowly tailored to serve

a significant governmental interest, and allow for

reasonable alternative channels of communication."

Globe Newspaper Co. v. Beacon Hill Arch'l Comm'n,

100 F.3d 175, 186 (1st Cir. 1996).

Here, the Town's limitation of free speech on the

Green is not absolute: the new regulation merely

prohibits one manner of expression (unattended

structures) in a particular place (the Green) at certain

times (when unconnected with an event). Since the

Town does not deny that the Knights have a free

speech interest in exhibiting the créche or that the

Green is a public forum, the salient question is

whether the restriction is content-based or content-

neutral. It is to that question that we now turn.

B. Content-Based or Content-Neutral?

To ascertain whether a regulation is content-

based, an inquiring court must determine whether it

regulates speech because of disagreement with the

particular message that the speech conveys. Id. at

183. The Knights concede, as they must, that the

language of the regulation is facially neutral. The ban

on unattended structures is comprehensive; it does

Opinion of the Appeals Court

not discriminate among types of unattended

structures, and certainly does not single out the

créche. Thus, the Knights’ argument boils down to a

plaint that the legislative history demonstrates that

the regulation's primary purpose is to prevent display

of the créche.?

In making this argument, the Knights rely heavily

on a "free exercise" case, Church of Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

There, the Supreme Court ruled that a municipal

ordinance prohibiting cruelty to animals was

unconstitutional because it was targeted at

preventing the sacrificial rites practiced by adherents

of the Santeria religion. Id. at 547. But Hialeah is

readily distinguishable because the ordinance at issue

there was riddled with exceptions that effectively

made it applicable only to Santeria worshipers. See id.

at 535. Thus, the ordinance — unlike the regulation

at issue here — was not content-neutral in its

operation. See id. For present purposes, the most that

Hialeah teaches_is that a court may have to look

beyond the bare language of a regulation to determine

whether its justification is content-neutral. See, e.g.,

Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) ("[G]overnment regulation of expressive activity

is content neutral so long as it is justified without

reference to the content of the regulated speech.");

D.H.L. Assocs. v. O'Gorman, 199 F.3d 50, 57 (1st Cir.

1999) (same).

In the instant case, there is nothing in the record

that evinces a content-based animus against the

créche. On the contrary, the Board proposed the new

2 The Town, citing United States v. O'Brien, 391 U.S. 367, 383-84

(1968), argues that we should not inquire into legislative purpose

when a statute is content-neutral on its face. Here, however, both

the text of the statute and the legislative history point toward

neutrality, so we need not and do not decide whether such an

inquiry is constitutionally required.

Opinion of the Appeals Court

regulation only after requests for permits for

alternative religious displays began to sprout. Mindful

of the strictures of the Establishment Clause, the

Board reasonably assumed that it must treat all

applications for religious displays alike, regardless of

the message conveyed. Fearing a flood of applications

and a corresponding cluttering of the Green, the

Board devised a regulation prohibiting all unattended

structures. This is a far cry from an invidious

singling-out of the créche.3

The only inference that the record permits is that

the new regulation was conceived out of a desire to

treat all religious expression even-handedly. If the

Knights feel that the burden of the regulation falls

most heavily on them, it is perhaps because they are

now held to the same standard as all other similarly

situated applicants. While the adjustment may not be

an easy one, the outcome is inescapably content-

neutral.

C. Significant Governmental Interest /

Narrow ring.

Having determined that the regulation is content-

neutral, we now apply intermediate scrutiny to

ascertain whether it is narrowly tailored to achieve a

significant governmental interest. McGuire, 260 F.3d

at 43.

The Town asserts that its interest in preserving the

historical and aesthetic qualities of the Green amply

justifies the restriction. This is a theoretically sound

position. After all, in Globe Newspaper, we upheld,

against a free speech challenge, a ban on news racks

in a historic Boston neighborhood. 100 F.3d at 195.

3 The Town's longstanding practice of permitting the créche to be

displayed on the Green without a permit helps, rather than

hinders, the Town's argument. That practice shows a receptivity to

the display and, contrary to the Knights' importunings, creates no

entitlement to preferential treatment in the future.

;

10a

Opinion of the Appeals Court

We recognized there that aesthetic preservation may

warrant a content-neutral restriction on speech in a

public forum. Id. at 187. As was true in Globe

Newspaper, the Town's interest in aesthetic

preservation qualifies as a significant one. Moreover,

that interest is enhanced here by the site's

designation as a national historic landmark.

In an attempt to blunt the force of this conclusion,

the Knights argue that the regulation is not narrowly

tailored to the achievement of this aesthetic rationale.

They make three points: first, that it is not only

unattended structures that produce clutter; second,

that the Town should have pursued alternatives less

restrictive than a total ban; and third, that the créche

is aesthetically pleasing. The first two parts of this

argument are plainly misguided. The narrow tailoring

requirement "does not mandate a least restrictive

means analysis." Nat'l Amusements, Inc. v. Town of

Dedham, 43 F.3d 731, 744 (1st Cir. 1995). Thus, the

Town was "[not] required to implement or experiment

with other alternatives before finally choosing the

total ban." Globe Newspaper, 100 F.3d at 189 n.15.

The "narrow tailoring" requirement is satisfied as long

as the particular "regulation promotes a substantial

government interest that would be achieved less

effectively absent the regulation." Nat'l Amusements,

43 F.3d at 744.

Here, moreover, the regulation appears entirely

logical when one recalls that it was adopted amid a

concatenation of Establishment Clause concerns. See

Good News Club v. Milford Cent. Sch., 121 S. Ct.

2093, 2103 (2001) (stating that avoiding an

Establishment Clause violation may be a compelling

state interest justifying even content-based

restrictions on speech). The Town legitimately could

conclude that unattended displays were more likely to

present Establishment Clause issues than attended

lla

Opinion of the Appeals Court

ones because, for instance, a reasonable observer

might be confused as to the source of the message.‘

Cf. Capitol Sq., 515 U.S. at 778-79 (O'Connor, J.,

concurring). This is significant because the context of

a religious display is crucial in determining its

constitutionality. Compare County of Allegheny v.

ACLU, 492 U.S. 573, 621 (1989) (forbidding display of

a créche in a county courthouse), with Lynch v.

Donnelly, 465.-16- U.S. 668, 685 (1984) (permitting

inclusion of a créche in a municipality's outdoor

holiday display).

We note, too, that the Supreme Court has

explicitly indicated that a total ban on unattended

structures in a _ public forum would pass

constitutional muster. In Capitol Square, a majority of

the Justices (the plurality, plus Justices Souter and

Stevens) specifically agreed that "[the state] could ban

all unattended private displays" in a public forum. Id.

at 783 (Souter, J., concurring); accord id. at 761

(plurality opinion); id. at 803 (Stevens, J., dissenting).

Various decisions of the courts of appeals are to like

effect. E.g., Am. Jewish Cong. v. City of Beverly Hills,

90 F.3d 379, 384 (9th Cir. 1996) ("The city

constitutionally could ban all unattended private

displays in its parks."); Congregation Lubavitch v. City

of Cincinnati, 923 F.2d 458, 460 (6th Cir. 1991)

(similar); Lubavitch Chabad House, Inc. v. City of

Chicago, 917 F.2d 341, 347 (7th Cir. 1990) (similar).

Finding no reason why the case before us demands a

different outcome, we hold that the total ban on

unattended structures is both content-neutral and

4 Although the plurality opinion in Capitol Square proposed a per

se rule to the effect that the government may not violate the

Establishment Clause by providing a forum for private religious

expression, see Capitol Sq., 515 U.S. at 770, a majority of the

Justices rejected this limited abandonment of the endorsement

analysis. See id. at 787 (Souter, J., with whom O'Connor and

Breyer, JJ., joined, concurring); id. at 799 (Stevens, J.,

dissenting); id. at 817-18 (Ginsburg, J., dissenting).

-12a

Opinion of the Appeals Court

narrowly tailored to achieve a_ substantial

governmental interest. It is, therefore, constitutionally

permissible.

As to the Knights’ claim that the créche is

aesthetically pleasing, the Establishment Clause

makes clear. that the Town was bound to consider a

range of potential religious displays when it

envisioned the future of the Green. Thus, the

aesthetics of the créche, in the abstract, are

irrelevant: The Town rationally could have decided

that some of the requested displays, or the sheer

number of potential displays, would be inconsistent

with the aesthetic quality of the Green. Even if the

créche were more beautiful than all the others — a

matter on which we take no view — the Town was not

at liberty to allow the créche while at the same time

prohibiting other religious displays.

D. Alternative Avenues of Communication.

As a final matter, the regulation does not unduly

restrict the Knights’ free speech rights because they

have adequate alternative avenues of communication

available to them. See McGuire, 260 F.3d at 43; Globe

Newspaper, 100 F.3d at 186. The Knights remain free

to display the créche, either during the course of an

event on the Green or at any time on nearby private

property.5 To be sure, the Knights argue that these

are not adequate alternatives — an event would be too

transitory and placing the créche on private property

would not convey the same message. But the message

that they suggest is suppressed is that the créche

belongs "at the center of public life in the Town of

Lexington." This resupinate reasoning turns the

constitutional standard upside-down. Although the

Constitution protects private expressions of beliefs, it

5 The record shows that one of the two churches facing the Green

is willing to have the créche displayed on its front lawn for the

customary six-week interval.

13a

Opinion of the Appeals Court

does not authorize — and sometimes even forbids —

citizens' attempts to invoke public backing of their

beliefs. The Knights have no constitutional right to

communicate a message of public support for the

créche.

It is also notable that the créche is not completely

banned from the Green. Like any other ceremonial

display, it may appear on the Green in conjunction

with an active event for up to eight hours. The

Knights have not explained why such a display is

impractical, instead stating that the Town has no

right to dictate to them how they must express their

private beliefs. Yet the Town has issued no general

ukase regarding private religious observances; only

religious displays on a single strip of public land are

affected. In a forum of this kind, it has long been

established that government may impose reasonable

restrictions on the manner of speech. See, e.g.,

Capitol Sg., 515 U.S. at 761. In adopting the

regulation, the Town has done no more than exercise

its right to manage its property in the manner it

deems desirable without crossing the constitutional

line.

E. Consistency in Application.

The Knights’ next argument is that the amended

regulation has been applied so inconsistently that it

gives municipal officials unfettered discretion (and,

thus, violates the rule announced in Cox v. Louisiana,

379 U.S. 536 (1965)). In Cox, the Court struck down a

municipal ordinance prohibiting street parades and

meetings on the ground that the ordinance effectively

gave local officials unbridled discretion to permit some

demonstrations and disallow others. Id. at 557. The

case stands for the proposition that a neutral

ordinance may violate the First Amendment if it

invites uneven application.

To demonstrate that the regulation here at issue

has been enforced selectively, the Knights presented

l4a

Opinion of the Appeals Court

evidence of other unattended structures that have

been seen on the Green since the new regulation was

adopted, e.g., bleachers and a platform truck were left

on the Green prior to a Patriots’ Day celebration, and

a podium appeared on the Green some days prior to a

Memorial Day event.

The most obvious flaw in this construct is the lack

of any evidence that these structures were erected by

private parties. This gap is critical because the

regulation was never intended to apply to actions by

the Town itself. In fact, the text of the regulation, as

adopted by the Board, prohibits. "[p]lacement on the

Battle Green of any unattended structure by any

private party" (emphasis supplied). Even though these

last four words later were omitted from the printed

regulation through an apparent clerical error, it is

reasonable to interpret the regulation as applying only

to private parties. In fact, the entire subsection in

which the regulation resides (quoted in the Appendix)

is most plausibly read as applying only to private

conduct. For example, we do not believe that the

provision prohibiting "removal[{] or disturbance of any

. monument, statue, marker, animal or plant”

reasonably could be construed to prevent regular

maintenance, repair, replacement, or landscaping

done by the Town. Similarly, the prohibition on the

use of firearms is most sensibly understood as not

encompassing police officers acting in their official

capacity. Because the Town is exempt from the ban

on unattended structures on the Green, the Knights'

claim of selective enforcement fails for evidentiary

insufficiency.

IV. THE FREE EXERCISE CLAIM

The Free Exercise Clause also is made applicable

to the states (and, therefore, to municipalities)

through the Fourteenth Amendment. See Cantwell,

310 U.S. at 303. It provides that "Congress shall make

no law . . . prohibiting the free exercise [of religion] . .

WPT Ac oeaeeegrmrgt Me

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15a

Opinion of the Appeals Court

." U.S. Const. Amend. I. In. interpreting this

language, the Supreme Court has recognized that the

exercise of religion sometimes may involve

"performance (or abstention from) physical acts," and

that the government may violate the right to free

exercise if it seeks "to ban such acts or abstentions

only when they are engaged in for religious reasons."

Employment Div., Dep't of Human Res. v. Smith, 494

U.S. 872, 877 (1990). Even so, "a law that is neutral

and of general applicability need not be justified by a

compelling governmental interest even if the law has

the incidental effect of burdening a particular

religious practice." Hialeah, 508 U.S. at 531.

The Knights' current reliance on this doctrine is

misplaced. As we already have determined, see supra

Part III(B), the ban on unattended structures is

content-neutral in every way. For the reasons

elaborated in our previous discussion, we are bound

to conclude that the regulation does not discriminate

against a particular religion or religious practice. See

Hennessy v. City of Melrose, 194 F.3d 237, 244 n.1

(1st Cir. 1999) (explaining that private beliefs do not

excuse a party from complying with a law of general

applicability). Hence, the Knights cannot rewardingly

invoke the Free Exercise Clause in their attack on the

regulation. ;

V. CONCLUSION.

We do not live in a utopian world, and the myriad

guarantees that the Constitution provides sometimes

can operate in tension with one another. So it is here:

the Establishment Clause pulls in the direction of

separating church and state, while the Free Exercise

Clause pushes in the direction of permitting the

unfettered expression of religious doctrine. In our

view, the Town has reconciled these competing

centrifugal and centripetal forces in a constitutionally

acceptable manner, holding the delicate balance

steady and true. Admittedly, its solution — the

16a

Opinion of the Appeals Court

banning of all unattended structures from the village

green — inhibits some speech, but the solution is

content-neutral, narrowly tailored to suppress no

more speech than necessary, and leaves open ample

alternative avenues of communication. No more is

exigible to withstand the intermediate level of scrutiny

that the First Amendment imposes here.

We need go no further. We hold that the Town's

ban on unattended structures on the Green is a

permissible "time, place, and manner" restriction that

operates without reference to the content of speech,

and that the aesthetic preservation of so historic a

landmark furnishes an appropriate basis for imposing

this narrowly tailored restriction in a public forum.

Because the challenged regulation leaves open many

other means. of communication for religious speech

and there is no competent evidence of selective

enforcement, we reject the Knights’ free speech claim.

On much the same analysis, we likewise reject the

Knights’ free exercise claim. Consequently, we hold

that the lower court did not err in granting summary

judgment for the defendants.

Affirmed.

Appendix

RULES AND SPECIFICATIONS REGULATING

THE USE OF THE BATTLE GREEN

The following rules and regulations have been

adopted in accordance with the General By-Law,

Article XXV, Section 225, "Protection of the Battle

Green", as amended. If these regulations or portions

thereof, conflict with the By-Law, the By-Law shall

take precedence.

1. DEFINITIONS

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17a

Opinion of the Appeals Court

a. "Audio device" means any radio, television set,

musical instrument, or other device that produces

noise.

b. "Disorderly conduct" means any action intended to

cause inconvenience, annoyance, or alarm, or

which recklessly creates a risk thereof; fighting,

threatening or violent behavior; unreasonable

noise; abusive language directed toward any

person present; wrestling in vicinity of others;

throwing of breakable objects; throwing of stones;

or spitting.

c. “Powerless flight" means any device used to carry

persons or objects through the air; for example,

sailplanes, gliders, balloons, body kites, hand

gliders.

d. "Public use limit" means the maximum number of

people or the amount, size, or type of equipment

permitted on the Battle Green at one time, as

established by the Board of Selectmen.

c. “Special event" means demonstrating, picketing,

speechmaking, marching, holding of vigils, and all

other similar forms of conduct which involve the

active communication or expression of opinions or

grievances, engaged in by one or more persons, the

conduct of which has the effect, intent or

propensity to draw a crowd or onlookers.

f. “Wet turf" shall mean any natural condition that

would make the Green vulnerable to excessive

damage by heavy wear or use; for example, heavy

rains, reseeding, drought conditions.

g. “Non-permit activities" shall mean activities that

may be engaged in without a permit issued by the

Board of Selectmen.

2. NON-PERMIT ACTIVITIES

Subject to the restrictions in these rules and

regulations, permits shall not be required for: ~

18a

Opinion of the Appeals Court

. Conduct that does not cause public inconvenience,

annoyance, or alarm.

. Picnicking restricted to benches only and to

groups of no more than five people. Picnicking on

the Green by bus tours or similar groups is

forbidden.

. The gathering of groups on the Battle Green for the

sole purpose of exploring and enjoying its history,

and which do not remain for more than four

hours.’ 7

. Playing of audio devices at a reasonable volume.

e. The playing of games that do not:

i. exceed three players; or -

ii. damage the Green's physical condition; or

iii. disturb or inconvenience those visiting the

Green for historic interest; or

iv. constitute any type of disorderly conduct.

3. PERMIT REQUIRED ACTIVITIES

. The purpose for requiring permits for certain

activities is to promote the use of the Battle Green

in a manner consistent with its nature and

history; to protect the Battle Green from harm; to

ensure adequate notice of the event so that

arrangements can be made to protect the public

health and safety and to minimize interference

with the event by the public.

. Permits are required for any of the following

activities, singly or in combination:

i. Any group activity reasonably likely to exceed

the public use limit established by the Board

of Selectmen.

ii. Special events, public meetings, assemblies,

gatherings, demonstrations, parades, and

19a

Opinion of the Appeals Court

other active public expressions of interest, not

to exceed eight hours in duration.

iii. Pageants, reenactments, regattas,

entertainments, or other as public spectator

attractions.

iv. Displays of a ceremonial nature in connection

with special events and limited in duration to

the period required for such events.

v. Use of public address system, electrical

lighting, or other electrical devices.

vi. Distribution of printed matter other than

commercial advertising.

vii. Possession of firearms if unloaded or packed

in such a way as to prevent their use

viii. Possession of explosives, as long as

individuals or groups conform to Federal,

State, and local laws governing such

possession.

ix. Use or possession of fireworks or firecrackers

4. IMPERMISSIBLE ACTIVITIES

The following activities are strictly prohibited:

a. Any group activity that exceeds the public use

limit established by the Board of Selectmen for the

Battle Green.

b. Possession, destruction, injury, defacement,

removal, or disturbance of any building, sign.

equipment, monument, statue, marker, anime! or

plant.

c. Distribution or display of commercial advertieing,

or soliciting of business; or any other commercial

transactions.

d. Remaining on the Battle Green for more than four

hours.

e. Abandonment of any vehicle or personal property.

ie me a

20a “

Opinion of the Appeals Court

Unreasonably loud operation of audio devices.

Delivery of any person or thing by parachute or

helicopter.

Powerless flight activities.

Begging.

Disorderly conduct. —

. Use of firearms.

Use of metal detecting device for personal use.

. Gambling of any form or operation of gambling

devices.

n. Picnicking except as provided in 2b.

o. Use of roller skates and skateboards.

p. Placement of the Battle Green of any unattended

structure.

5. PERMIT PROCESS

Application for permits to conduct activities on the

Battle Green, specified in 3, above, shall be filed

no later than two weeks prior to the requested

date. Late and/or incomplete applications will be

considered at the discretion of the Board of

Selectmen.

Permit applications shall include the following

information:

i. Name and phone number of a responsible

contact.

Date and time of event.

BE:

Nature of event.

iv. Expected number of participants, spectators,

and vehicles.

v. Duration of event.

2la

Opinion of the Appeals Court

vi. Statement of equipment and facilities to be

used.

vii. Section of the Green desired.

The responsible party is to keep the permit, which

must be available for inspection upon request. The

responsible party may be required by the Board of

Selectmen, as a condition of issuing the permit, to

pay for detail police officers if the Board

determines that such officers are necessary for

public safety.

Permits are issued upon express condition the

Green is to be left in an orderly fashion.

Permits are non-transferable; and are only valid for

date and time specified.

A permit shall be revoked if a sanctioned event

engages in impermissible activities and may be

revoked if the permit group engaged in activities

that are not within the specification of the permit.

The Board of Selectmen may alter a request by

setting reasonable conditions and restrictions as

to duration and area occupied, as are necessary

for protection of the area and public use thereof.

. Wet turf conditions may supersede the use of a

granted permit at the discretion of the Board of

Selectmen to protect the condition of the Battle

Green.

6. GROUNDS FOR DENIAL OF PERMIT REQUEST

Prior applications for permit for conflicting

schedule has been made or will be granted.

Event presents a clear and present danger to

public health or safety.

Event is of such nature or duration that it cannot

reasonably be accommodated in the area applied

for; or the expected number of participants

exceeds the public use limit.

cere enenegne ~ mewn yen ert

22a

Opinion of the Appeals Court

d. Event will, in the opinion of the Board of

Selectmen, cause unacceptable interference with

use of the Green by the general public.

e. Event is requested for a date that conflicts with

official celebrations of the Town.

f. Event is more appropriately held at other available

Town facilities, such as recreational facilities.

Approved by the Board of Selectmen July 15, 1986

Amended July 24, 2000

‘

23a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 01-2460

KNIGHTS OF COLUMBUS, COUNCIL #94, ET AL.,

Plaintiffs, Appellants,

Vv.

TOWN OF LEXINGTON ET AL.,

Defendants, Appellees.

JUDGMENT

Entered: November 29, 2001

This cause came to be heard on appeal from the.

United States District Court for the District of

Massachusetts, and was argued by counsel.

Upon consideration whereof, it is now here

ordered, adjudged and decreed as follows: The

judgment of the district court is affirmed.

By The Court

Janice O'Neil, acting clerk

BY: /s/

Appeals Attorney

24a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

KNIGHTS OF COLUMBUS, COUNCIL )

#94, LEXINGTON, MASSACHUSETTS )}

and MICHAEL J. O'SULLIVAN,

INDIVIDUALLY AND AS GRAND

KNIGHT OF THE KNIGHTS OF

COLUMBUS, COUNCIL #94,

LEXINGTON, MASSACHUSETTS,

Plaintiffs,

Case No.

Vv. 00 cv 12360 NG

TOWN OF LEXINGTON, and JEANNE

K. KRIEGER, CHAIRMAN, and

CATHERINE M. D. ABBOTT,

ELIZABETH B. EDDISON, PETER D.

ENRICH, AND DAWN E. MCKENNA,

THE BOARD OF SELECTMEN OF

LEXINGTON, MASSACHUSETTS

Defendants.

me er re ee ee ee” eee” See eee” ee” ee” See See” See See See”

GERTNER, D.J.:

ORDER OF DISMISSAL

Before me is Magistrate Judge Dein's Report &

Recommendation On Cross-Motions For Summary

Judgment, dated August 7, 2001 ("Report"). I agree

with Judge Dein's recommendation that the plaintiff's

motion for summary judgment (Docket #43) be

DENIED and that the defendants’ motion for

summary judgment (Docket #40) be ALLOWED. I

hereby adopt the findings and conclusions of Judge

Dein detailed on page 1 through page 36, line 1 of

Judge Dein's Report. While I also agree with Judge

Dein's conclusion that the defendants have not

EPSILON LN SELMAN IN

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277 ORRIN Reo:

;

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25a

Order of Dismissal by the District Court

violated plaintiffs' First Amendment Free Exercise

rights (as described on the remainder of page 36 of

the Report), I do so based on slightly different

reasoning than Judge Dein's, which I will detail

below.

I. FREE EXERCISE CLAUSE

In her Report, Judge Dein recommends a finding

that the questioned regulation did not implicate the

plaintiffs' Free Exercise rights because the regulation

did not place a substantial burden on the observation

of a central belief or practice of the plaintiffs.

However, as the plaintiffs pointed out in their

Objections to Judge Dein's Report, the Supreme Court

has discouraged courts from inquiring into whether

an asserted belief or practice is central to an

individual's religious faith in performing its Free

Exercise analysis. See Employment Div. Dept. Human

Resources of Oregon v. Smith, 494 U.S. 872, 886-887

(1990), citing Hernandez v. Commissioner, 490 U.S.

680, 699 (1989); Thomas v. Review Bd. Of Indiana

Employment Security Div., 450 U.S. 707, 716 (1981).

Nevertheless, even assuming for the purposes of

this analysis that the plaintiffs’ placing of the

unattended creche on the Green is a central practice

of the plaintiffs’ religious beliefs, the plaintiffs' Free

Exercise claim still fails. Under Smith, a neutral law

of general applicability prohibiting conduct does not

violate the Free Exercise Clause even if the regulation

burdens an individual's religious practice so long as

the law is not specifically directed at prohibiting that

religious practice. Employment Div. Dept. Human

Resources of Oregon v. Smith, 494 U.S. at 879-880.

See also Hennesev v. City of Melrose, 194 F.3d 237,

244 n.1 (1st Cir. 1999). Here, as Judge Dein describes

on pages 22-28 of her Report, no animus against

Christians or the message of the creche motivated the

passage of the questioned regulation. Furthermore,

the statute is generally applicable as it applies to all

26a

Order of Dismissal by the District Court

unattended structures on the Green that are not

associated with a live demonstration or activity.

Furthermore, the town has a legitimate aesthetic

interest in regulating the use of the Green. Thus,

regardless of the centrality of the religious practice,

the regulation does not violate the Free Exercise

rights of the plaintiffs because it is a neutral law of

general applicability under Smith.

Thus, for the reasons detailed in page 1 through

page 36, line 1 of Judge Dein's Report as well as the

reasons detailed above, I DENY the plaintiffs’ motion

for summary judgment (Docket #43) and GRANT

defendants motion for summary judgment (Docket

#40). The case is hereby DISMISSED.

SO ORDERED.

Dated: October/zjsic], 2001

Ls/

Nancy Gertner, U.S.D.J.

27a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

KNIGHTS OF COLUMBUS, et al., )

IVIL ACTION

Plaintiffs, )C

Vv. ) NO. 00-12360-NG

)

TOWN OF LEXINGTON, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION ON

CROSS-MOTIONS FOR SUMMARY JUDGMENT

August 7, 2001

DEIN, U.S.M.J.

This matter is before the court on the parties’

cross-motions for summary judgment. At issue is the

constitutionality of regulations enacted by the

defendants, the Town of Lexington and its Board of

Selectmen (collectively, the “Board” or “Selectmen”),

which prohibit the placement of unattended

structures on the Battle Green at the Lexington

Common (the “Green”). The plaintiffs, the Knights of

Columbus and its Grand Knight (collectively, “Knights

of Columbus”), contend that the regulations violate

their rights of free speech and free exercise of religion

as protected by the First Amendment of the

Constitution of the United States since the

consequence of the regulations is to prohibit them

from displaying a créche (Nativity Scene) on the Green

to celebrate Christmas. The Board, on the other hand,

argues that the regulations are content-neutral and

are reasonable and enforceable restrictions on time,

place and manner of speech.

28a

Report and Recommendation of the Magistrate

For the reasons detailed herein, this court

recommends to the district judge to whom this case is

assigned that the plaintiffs’ motion for summary

judgment (Docket #43) be DENIED; and that the

defendants motion for summary judgment (Docket

#40) be ALLOWED.

PROCEDURAL BACKGROUND

On November 6, 2000, the Board amended existing

regulations and enacted new regulations, including

one which prohibits the “[p]lacement on the Battle

Green of any unattended structure.” As a result, the

plaintiffs’ request for a permit to display a créche was

denied, On November 21,2000, plaintiffs moved for a

preliminary injunction seeking an order that they be

allowed to display the créche during the period

December 3, 2000 to January 6, 2001. After briefing

and argument, on December 6, 2000, the District

Court (Gertner, J.) denied the motion and issued a

memorandum in which the court concluded “that

plaintiffs are unlikely to succeed on the merits of their

Complaint.” Knights of Columbus _v. Town _ of

Lexington, 124 F. Supp. 2d *°9, 122 (D. Mass. 2000).

Plaintiffs filed an emusrgency motion for a

preliminary injunction pending appeal. This motion

was denied by the First Circuit Court of Appeals

“essentially for the reasons set out by the district

court at greater length in its December 6, 2000

memorandum.” (First Circuit Court of Appeals No, 00-

2539, Order entered December 20, 2000). The Court

further ruled that “the preferred posture in which to

address the constitutional issues will be in an appeal

from the grant or denial of permanent injunctive

relief.” Id.

The plaintiffs then served interrogatories and a

document request, and sought to depose the five

named defendant members of the Board of Selectmen.

The Board responded with a motion for a protective

order seeking an order precluding any discovery on

RPL YR RR TIEN me re 08 g's Xm nse adeg nPucnests _ ~- .

29a

Report and Recommendation of the Magistrate

the grounds that all relevant information had been

produced in connection with the motion for a

preliminary injunction (Docket #26). On March 27,

2001, this court issued a Memorandum of Decision

and Order allowing the motion in part and denying

the motion in part. Knights of Columbus v. Town of

Lexington, 138 F. Supp. 2d 136 (D. Mass. 2001).

The issue raised by the motion for a protective

order was what information could properly be

considered in determining the motives of the Board in

enacting the regulations. This court ruled that the

motives and thoughts of individual legislators are not

controlling on the issue of constitutionality of

legislation. See United States v. O’Brien, 391 U.S.

367, 383-84, 88 S.Ct. 1673, 1682-83, 20 L.Ed. 2d 672

(1968) (“Inquiries into congressional motives or

purposes are a hazardous matter” and court will not

rely on statements made by individual legislators

since “[w]hat motivates one legislator to make a

speech about a statute is not necessarily what

motivates scores of others to enact it... .”). Moreover,

the doctrine of legislative immunity safeguards

legislators from having to testify regarding their

motives. See Miles-Un-Ltd., Inc. v. Town of New

Shoreham, 917 F. Supp. 91,99 (D.N.H. 1996), and

authorities cited; Acevedo-Garcia v. Vera-Monroig,

204 F.3d I, 8 (Ist Cir. 2000). As a result, courts rely on

“objective indicators of intent,” including the “face of

the statute, the effect of the statute, comparison to

prior law, facts surrounding enactment, the stated

purpose, and the record of proceedings.” City of Las

Vegas v. Foley, 747 F.2d 1294, 1297 (9t% Cir. 1984), as

quoted in Colacurcio v. City of Kent, 163 F.3d 545,

552 (9t Cir. 1998), cert. denied, 529 U.S. 1053, 120

S.Ct. 1553, 146 L.Ed. 2d 459 (2000). Put another way,

“[rjelevant evidence, includes, among other things, the

historical background of the decision under challenge,

the specific series of events leading to the enactment

or official policy in question, and the legislative or

30a

Report and Recommendation of the Magistrate

administrative history, including contemporaneous

statements made by members of the decisionmaking

body.” Church of The Lukumi Babalu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 540, 113 S.Ct. 22 17, 2230-

31, 124 L.Ed.2d. 472 (1993) (citations omitted).

However, such statements we relevant only “if they

show objective manifestations of an illicit purpose,

such as a departure of from normal procedures or a

sudden change in policy” Colacurcio, 143 F.3d at 552.

Based: on this standard, this court limited the

discovery to which the Board had to respond and

precluded the deposition of the individual Selectmen

The plaintiffs were invited to seek additional discovery

based on a specific showing of need, but they never

did so. The plaintiffs did move for reconsideration of

this court’s ruling, which motion was denied. (Docket

#36, 39).

The parties filed cross-motions for summary

judgment on May 22, 2001 and filings were completed

on June 20, 2001. Oral argument was heard on July

2, 2001. Although plaintiffs have not filed any motion

to strike, they do object to this court’s consideration

of “statements of opinion by the defendants” and

“claims as to the motivations of the members of the

Board of Selectmen contained in the defendants’

statement.” Plaintiffs’ Opposition to Defendants’

Cross-Motion for Summary Judgment (“Plaintiffs’

Opp.”) (Docket #49) at pp. 2, 3. As evidenced by the

following statement of undisputed facts, this court

remains guided by the above-stated principles in

determining the relevant issues of motive and intent.!

1 Despite the plaintiffs’ objections to the inclusion of some

material in the record, all parties agree that the material facts are

not in dispute.

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Report and Recommendation of the Magistrate

UNDISPUTED MATERIAL FACTS

The first battle of the Revolutionary War occurred on

April 19, 1775 at what is now known as the Lexington

Battle Green. Affidavit of Peter Enrich (“Enrich Aff.“)

(included in Docket #42) at 94. Seven of the eight

minutemen killed during the battle are buried on the

Green and the famous Minuteman Statue is located at

the apex of the Green. Id. The Minuteman Statue

commemorates the efforts of the American colonists

who fought in the Revolutionary War. Id.? The Battle

Green is a registered National Historic Landmark and

is also listed in the Massachusetts State Register of

Historic Places. Id. at 45.

Regulation of the Battle Green

Pursuant to the General By-Laws of the Town of

Lexington, the Board of Selectmen is entrusted with

the protection of the Battle Green, and the Board is

authorized to promulgate regulations governing the

use of the Green. Id. at ¥6 and Ex. A. The most recent

“Rules and Specifications Regulating the Use of the

Battle Green” were adopted by the Board on July 15,

1986 (id. at Ex. C) and amended on July 24, 2000 (id.

at Ex. B). They are divided into three categories:

activities which can take place without a permit

(“non-permit activities”), activities for which permits

are required (“permit required activities”), and

activities which are strictly prohibited (“impermissible

activities”). Id. at Exs. B & C at 92, 3, 4. The 2000

Regulations also added rules regarding the “permit

2 The plaintiffs refer to the use of the Green prior to the

Revolutionary War and describe it as a “center of spiritual

activity.” Although this court has no reason to disbelieve these

a poe, are not ee by the record. See

Judgment (Plaintifis’ Mem.") (Docket #44) at p.-3, 49. In any

event, these facts are not material, and the parties agree that the

Green has special historic significance. aN

32a

Report and Recommendation of the Magistrate

process” and “grounds for denial of a permit.” Id. at

Ex. B at 995, 6. The rationale for requiring permits

has remained unchanged. Thus, the 1986 and 2000

Regulations provide:

The purpose for requiring permits for certain

activities is to promote the use of the Battle

Green in a manner consistent with its nature

and history; to protect the Battle Green from

harm; to ensure adequate notice of the event

so that arrangements can be made to protect

the public health and safety and to minimize

interference with the event by the public.

Id. at Exs. B and C at 43a.

The following chart details (and is marked to show)

the relevant changes to the Regulations regarding

activities which require a permit:

1986 Regulations (Ex. C) | 2000 Regulations (Ex. B)

1. Any group activity i. No change.

reasonably likely to exceed

the public use limit

established by the Board of

Selectmen.

2. Special event,3 public |

meetings, assemblies,

gatherings, demonstrations,

ii. Special events, public

meetings, assemblies,

gatherings, demonstrations,

parades and other public parades and other active

expression of opinion. public expressions of

: ;

ro occa ind ~~

3 “Special event” is expressly defined in both sets of Regulations as

“demonstrating, picketing, speechmaking, marching, holding of

vigils, and all other similar forms of conduct which involve

communication or expression of opinions or grievances, engaged

in by one or more persons, the conduct of which has the effect,

intent, or propensity to draw a crowd of onlookers.” jd, at Exs. B

and C, at fle.

d. Remaining on the Battle Green for more thew

four hours.

e. Abandonment of any wehicle or personal

property.

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Report and Recommendation of the Magistrate

Services, Peace vigils, protests over the

impeachment of President Clinton, re-

enlistment ceremonies, interfaith services,

protests over the exclusion of the créche, and

of the annual reenactment of the Batik of

Lexington and Concord.

Defendants’ Response to Request No, 17 (Plaintiffs’

Ex. Q).4 “In a typical year, events on the Green

include religious’ services, fairs, re-enactments,

celebrations, and rallies.” Knights of Columbus, 124

F.Supp.2d at 121. These uses have continued

following the adoption of the 2000 Regulations. For

example, “[i]Jn the recent past, the Green has been

used for Easter Sunrise Services, weddings, a prayer

rally for the National Day of Prayer, a demonstration

against commercial flights at Hanscom Air Force

Base, a rally in support of the labor strike at Raytheon

Corporation, and for a variety of other events.” Enrich

Aff. at 99. In April 2001, the annual Patriots Day

celebration, including the reenactment of the Battle of

Lexington, was held on the Green, as were rehearsals

for the event. See Third affidavit of Peter D. Enrich

(“Third Enrich Aff.”) (Docket #47) at 991-2, Ex. A. The

annual Memorial Day ceremony was held on the

Battle Green on May 28, 2001. Second Affidavit of

Jeanne Kreiger (“Second Kreiger Aff.”) (Docket #52) at

q{1, 2. “It began with a prayer led by a chaplain from

Hanscorn Air Force Base, and also included a volley

by the Lexington Minutemen, a speech by Col.

McCarraher, a _ reading of the $Governor’s

Proclamation, a flag raising, a wreath laying, a

performance by a local band, and a closing prayer by

the chaplain.”5 Id. at 42. It is undisputed that, apart

from the créche, the Green has not regularly been the

4 “Plaintiffs’ Ex.” refers to the exhibits attached to Plaintiffs Mem.

(Docket #44).

5 More details about the podium and seating used in this and

other events will be discussed infra.

35a

Report and Recommendation of the Magistrate

site of unattended structures expressing information,

opinions or beliefs. See Enrich Aff. at 9 12; Plaintiffs’

Mem. at 1-2 (the only other unattended structures to

which plaintiffs refer are non-expressive items such

as flatbed trucks, bleachers and podiums).

History of the Créche on the Green

A créche has been placed on the Green each

Christmas season for much of the past eighty years,

beginning in the early 1900’s. Enrich Aff. at ¢ 10. For

several years, the créche was placed in a different

park in Town, and th -e was no display mound the ~

time of World War II. 'u. After the War, the Town was

effectively the owrer of the créche and was

responsible for its maintenance, erection and storage.

Id.

In 1973, an issue arose as to whether the Town

should be responsible for continuing to display the

créche and whether it should remain on the Green.

See id. at 911, Ex. D. At the Selectmen’s Meeting of

October 29, 1973, it was unanimously voted:

to grant permission to the Knights of

Columbus, Lexington Council No, 94, acting

alone or in concert with the Simon W.

Robinson Lodge, A.F. & A.M. to display the

créche on the Green during the annual

Christmas season, with the following

understanding: 4

1. That they assume the responsibility for the

erection, care, removal and storage of the

Créche.

2. That they install a plaque indicating that

the display is privately sponsored and

--identifying those sponsors.

Id. See also Plaintiffs’ Ex. E.

Since at least 1982, the Regulations for the use of

the Green would have required a permit for the

36a

Report and Recommendation of the Magistrate

display of the créche, Enrich Aff. at 412. From 1973

through the 1998 Christmas season, however, the

créche was displayed on the Green without prior

approval or permit. Id at 4912, 16.

The placement of the créche on the Battle Green

was-a matter of much controversy in the Town. The

plaintiffs cite to the statements of defendant Peter

Enrich at a meeting to summarize the objections to

the placement of the créche on the Green as being to

the display of a “majority religious symbol” that left

some residents feeling alienated and disenfranchised.

See Plaintiffs’ Mem. at p. 6,925. While this description

is not comprehensive, it does accurately reflect many

of the objections to the (semi) permanent display of a

religious symbol on the Green.

The minutes of the meeting of the Board of

Selectmen of November 2, 1998 report that Rev. Helen

Cohen of the First Parish Church and President of the

Lexington Clergy Association, had been invited to

attend the meeting and “to explain the efforts of the

Clergy Association to address on it common ground

the location of the créche on the Battle Green.” Enrich

Aff. at Ex. E; Plaintiffs’ Ex. F. According to Rev.

Cohen, the Clergy Association had worked on the

matter in 1972, and then, again, over the course of

the past 3 years. There were differing opinions “even

within the Clergy Association.” Id. A group had been

created, called “Meeting Ground,” to “explore options

and hopefully come up with something that will be

satisfactory to all people.” Id.6 The group consisted of

members of the clergy and other citizens with various

viewpoints. At the request of Rev. Cohen, the

Selectmen took no action on the issue of the location

of the créche and it was displayed on the Green

6 Although the plaintiffs state that “Meeting Gro nd” was

organized on September 27, 1999, they rely on the san.. minutes

as the defendants, and this seems to be a simple error. See

Plaintiffs’ Mem. at pp. 3-4, 44 15, 16.

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37a

Report and Recommendation of the Magistrate

during the 1998 Christmas season. Id.. See also

Enrich Aff. at 915.

A regular meeting of the Board of Selectmen was

held on September 27, 1999, Enrich Aff. at 917 & Ex.

F; Plaintiffs’ Ex. G. Rev. Cohen reported on the results

of the Meeting Ground group’s work. As reported, the

Committee, after much review, came to the

unanimous conclusion that private citizens do

have the right to have religious observances

and displays on the common land within

guidelines established by the town. The

Committee then focused on the duration of

the display on the Green and the hope that

the group could reach a decision; however,

Meeting Ground is unable at this time to

propose a specific time period that everyone

can live with.

Id. The Committee did, however, recommend that the

display be for a shorter period than in prior years, and

that it reconsider the matter again beginning In

February 2000. The owners of the créche, including

the Knights of Columbus, agreed to a shorter period of

three weeks. Id.

There was an open forum and comments from a

number of members of the audience. The minutes

describe these as “discussion and questions. . .

concerning the length of the display, religious

expression versus display of an ‘unattended

structure,’ whether the display is allowed or not under

the Constitution and use of another location in the

proximity of the Green.” Id. The Board continued the

matter for decision at the next meeting. Id. See also

Plaintiffs’ Ex. H, which includes the Meeting Ground’s

Proposal, which is incorporated in the-Board minutes,

and a newspaper article dated September 9, 1999

which reported that “[lJast year, calls for the removal

of the nativity scene from public grounds were

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Report and Recommendation of the Magistrate

highlighted by a December protest rally organized by

a group of Lexington High School students.”

After the meeting, the Board received “quite a bit

of mail and calls, more than on any other issue.”

Enrich Aff. at Ex. G (Board Minutes of October 18,

1999). One piece of correspondence from a Town

resident suggested that unless the Town was

prepared to approve every type of display imaginable,’

“[ajlternatively the Town could simply ban all

unattended displays on the Battle Green.” Id. at Ex.

L.6 Thus, the record does not support the plaintiffs’

contention that the possibility of competing structures

on the Green did not arise until it was clear that the

Selectmen intended to ban the créche. See Plaintiffs’

Mem, at 24. The possibility that the Green could be

transformed into a field of signs and structures arose

early on in the debate.

The créche was next discussed by the Selectmen

at their meeting of October 18, 1999. Id. at 418, Ex.

G.° There were public comments and then comments

from the Board. The Board members expressed their

personal concerns that the issue was divisive, that

regulations were not being followed, that “neither a

7 The writer suggested that such displays might include a

“depiction of human sacrifices,” “a commemoration of the Mayan

or Aztec religious festivals, which were oriented around blood-

letting,” or “a commemoration of the religious practices of the

Crusaders, which included the burning of entire communities of

Jews and the sacking of Christian Constantinople.” Another writer

suggested a statue of the late Flip Wilson and a herd of live cattle

to honor Hindus. Id, at Ex. L.

8 According to the writer, while putting up displays of their

opinions and “walk{ing] away is just too much,” “[i]f anyone cares

enough to stay up all night with their religious (or political)

displays for four weeks, maybe we should let them have that

opportunity. Id. at Ex. L.

9 Although the plaintiffs do not mention this meeting, the facts do

not seem to be in dispute.

39a

Report and Recommendation of the Magistrate

complete ban nor a status quo” was appropriate, that

the “créche is a symbol of peace but does not belong

on the Battle Green,” and that the créche “causes

displeasure and alienation and gives a message that it

has public endorsement.”!9 Id. at Ex. G. The Board

voted 4-1 to permit the placement of the créche for a

reduced 3 week period for the 1999/2000 Christmas

season, While not focally voted upon, the minutes

indicate that the matter was to be revisited for the

next season. Id.

Community Response

In response to the vote allowing the display of the

créche, on or about November 2, 1999, the Board

received a request for “a permit to erect a privately

owned temporary religious structure on the Battle

Green” from a group of residents calling themselves

“Citizens for the Protection of the Battle Green.” Id. at

Ex. H. The permit was for a 4 feet by 8 feet plywood

sign stating in part that the créche is a “privately

owned religious structure,” that it “does not represent

an ‘establishment of religion’ by the Tom of Lexington”

and that “[i]Jt is placed here in spite of the objections

of the Lexington citizens of many different faiths, who

believe that private, sectarian, religious displays are

inappropriate on public lands.” Id.

The permit request was discussed at the

Selectmen’s meeting of November 22, 1999, at which

time it was denied in the abseiice of a motion.

According to the minutes:

The Board discussed several points: the

request is far different as it is for a sign and

10 While in his affidavit Mr. Enrich seeks to expand upon his

grounds for opposing the créche (418), in the absence of any

transcript of the meetings, or statement of his thoughts in the

minutes, these personal, after the fact, comments will not be

considered in ruling on tie motion for summary judgment.

40a

Report and Recommendation of the Magistrate

not a structure, there is a clear distinction

between a Créche and signage; the sign being

requested would come under the Town’s

Zoning By-laws; there will be further dialogue

after this Christmas season encompassing a

wider range of citizen input; different

interpretations of the constitution; concern

that the proposed sign is an effort to

characterize a structure placed on the Battle

Green by another group and appears to be

adversarial, and the desire of the Board to

have the request withdrawn.

Id. at Ex. I.. Other permit requests were also

discussed, but no action was taken. Id.; Enrich Aff. at

q22. These permits were characterized as being fur

“privately owned religious objects and structures on

the Battle Green.” Enrich Aff. at Ex. J. One was for a

“witch, a skeleton, and a ghost” in honor of witchcraft,

“a recognized religious practice in Massachusetts

since the days of the Salem Trials.” The other was the

erection of a Pyramid to honor the Egyptian Sun God

Ra, which was proposed for April 2000. The

proponents of the permits noted that they

do NOT believe that actually granting these

permits is in the public interest. We do,

however, believe that if the Board of

Selectmen permit a créche to be placed on the

Battle Green, and then reject permits for

these displays, it constitutes Constitutional

grounds for legal action against the Board for

denial of equal protection, interference with

free speech, and establishment of one religion

in preference to another.

Id. Additional requests for approval of structures on

the Green came in from various members of the

community. For example, on November 4, 1999, there

was an inquiry about placing a Sukkah on the Green

during the period October 10-22,-2000. Id. at Ex. K. It

4la

Report and Recommendation of the Magistrate

was described as “an open structure that will measure

approximately 8’ wide by 14’ long by 8’ high,” it

celebrates the Jewish harvest festival of Sukkot, and

the applicant noted that “[iJn light of the Créche

decision and the support of the Selectmen for

diversity of expression on the Green, I do not suppose

that there will be any issue about approval for this

request.” Id. It was clear that the créche, if allowed to

remain on the Green, was no longer going to be the

only unattended expressive structure placed there.

The Meeting Ground group appeared at the

Selectmen’s meeting of July 10, 2000, but it did not

have any new recommendation for the Board to

consider. Id at Ex. M. In the context of discussion

about how to deal with the créche on the Battle

Green, the Selectmen voted 3-2 “to request that Town

Counsel review the Rules sued _ Regulations

concerning use of the Battle Green and strengthen

the regulations to prohibit the erection of unattended

structures on the Green.” Id. See Plaintiffs’ Ex. 1,

excerpts from transcript of meeting.!!

The next Board meeting was held on July 24,

2000. Id. at Ex. N. At that time, acting Town Counsel

reviewed the proposed changes to the Battle Green

Regulations, including prohibiting the placement of

any unattended structure on the Green by any private

party. Id. After discussion by the audience in favor of

and opposed to taking the créche off the Green, the

amendments to the Regulations were approved by a

vote of 4-1. Id. The modification of the Regulations was

described as “the culmination of a process initiated by

the Board nearly two years ago to bring closure to

11 In their affidavits, defendant Peter Enrich and, to a lesser

extent, Jeanne Kreiger detail the concerns of the Selectmen in

voting for the amendments to the Regulations. To the extent that

these opinions are not reflected in contemporaneous or historical

expressions of intent or fact, they will not be considered in

connection with ruling on the motions for summary judgment.

42a

Report and Recommendation of the Magistrate

whether—to the issue of whether to continue to

permit the placement of the créche on the Green.”

Plaintiffs’ Ex. J, p. 5. In connection with its vote, the

Board rejected a suggestion that permit applications

be considered on a case-by-case basis, or that the

content of an message be examined. Enrich Aff. at Ex.

O, pp. 120-22; Ex. P, pp. 123-24. Defendant Peter

Enrich’s contemporaneous statements are consistent

with the facts as presented by all parties to this

litigation with respect to the expressed motives and

intent of the Board in enacting the Regulations. As he

stated:

Mr. Enrich: I think the créche is clearly the

trigger for us facing a very complex and

difficult issue. The complex and difficult issue

goes to the heart of one of the responsibilities

of the Board of Selectmen, which is the

stewardship for the Green. It’s an important

responsibility. It’s a responsibility that we.

address in other respects, but this is probably

the most heated and difficult context that has

-- that is going to arise about it. And when

you confront that question, the question that

you confront is the question of: What is the

appropriate range of uses of the Green for

expression of private views? Those are private

views about religion, private views against

religion, private views of political candidates,

private views around a whole range of issues.

And to try to address one in isolation from the

others strikes me as something that would be

ill-considered.

When we confront it, and at least for me,

having grappled with this as hard as I know

how to grapple. with something and listened

as hard as I know how to and I think coming

to a fairly good understanding of the

perspectives of a pretty wide range of people,

I’m convinced of first, that there is not an

43a

Report and Recommendation of the Magistrate

Immediate strategy that we can pursue that

isn’t going to make some people very

unhappy. I think that’s inevitable and it’s

extremely unfortunate And I think we've

looked long and hard. We've asked others to

help us look long and hard. And I don’t think

there is such a strategy.

What I, personally, have concluded is the best

strategy is one that recognizes the right of

individuals and groups to use the Green for

displays of their opinions in the form of

events, of worship. services, of political

meetings, of marches, of vigils, of any sort of

activity like that. But to allow its use for

_groups to place a structure that stands there

for an extended period of time to represent

their views is problematic. It’s problematic in

that it sends some confusing messages about

who endorses’ those _ structures. It’s

problematic in that it is now beginning to

invite, via battles of competing structures

trying to deliver competing messages,

something that I think is just completely

contrary to what I think of as the proper

meaning of the Green.

And so I think that although it’s not a perfect

solution, it is an equitable, responsible

solution which draws the distinction and

says: Activities, events, we will permit broadly,

essentially, — universally; structures

representing the views of private groups we

will forbid universally and equitably. Is that

perfect? No, of course it’s not perfect.

Enrich Aff. at Ex. O, pp. 120-22.

Chairman Jeanne Kreiger shared this sentiment,

using language on which the Knights of Columbus

rely. As she stated at the meeting:

- 44a ,

Report and Recommendation of the Magistrate

The display of the créche on the Green has

been a matter of public debate for more than

two years. We've had discussions here in front

of the Board of Selectmen. There have been a

variety of formal and informal discussion .

groups by the clergy. There’s been discussions

in the Lexington Minuteman, through public

assembly, on local access TV and through the

TMMA e-mail list. These public discussions

have, in general, been fairly divisive, and in

some cases, quite destructive. Continued

public debate, in my opinion, will not lead to a

solution that will be satisfactory to all

Lexington residents.

The Board of Selectmen is acting on our

personal convictions and on what we, as

individuals, believe represents the perspective

of the majority of the citizens of Lexington. As

one caller said to me this weekend, “There are

many churchgoing Christians, many long-

time residents of Lexington, who recognize

: that times have changed and the display of

the créche on the Green is no longer

appropriate.”

I would hope that our discussions this

evening will focus on the recommended

changes -- the bylaw enhancements and the

appropriateness for invoking what we believe

to be the majority opinion of this Board and

the majority of the residents of Lexington.

Plaintiffs’ Ex. J at 7-8; Plaintiffs’ Mem. at p. 5, 420.

Events Fo e New Re tions

Following the enactment of the new regulations,

the Green continued to be used for active events and

expressions of opinion as_ described above.

Specifically, but without limitation, the Selectmen’s

minutes of September 25, 2000 reflect the approval of

a £108 OMT

45a

Report and Recommendation of the Magistrate

the use of the Green by the Lexington Minutemen for

change of command and installation of officers

ceremonies, and a rehearsal as before. Enrich Aff. at

Ex. Q. In addition, the Board approved 12 weeks of

rallies to be held on Wednesdays from 4:00-600 P.M.

protesting the exclusion of the créche from the Green.

Id., Enrich Aff. at 440.

On October 19, 2000, the plaintiff Michael

O’Sullivan, individually and on behalf of the Knights

of Columbus, requested a permit to erect a créche on

the Green. Enrich Aff. at Ex. R. He also stated that if

approval was not granted by October 30, 2000, he

would treat it as having been declined and commence

legal action. Id.

At the meeting held on October 30, 2000, the

application for a permit was not acted upon and was

considered constructively denied. Plaintiffs’ Mem. at

p. 6, 928; Plaintiffs’ Ex. N. At the meeting, defendant

Peter Enrich stated as follows:

Mr. Enrich: I do think that this is an

important point because I know that some

people have concluded that the Board’s

actions last summer were directed at a

specific religious expression. And I have had

people accuse me of being anti-Christian. And

nothing could be further from the truth. The

fact of the matter is that this, at least in my

mind, was intended as a completely neutral

attempt to address a problem of requests for

appropriate uses that came from a number of

directions.

And I, personally, am convinced that our

function, as a Board of Selectmen, is to

preserve the hallowed space of the Green.

This is a historic battlefield which we are

meant to protect and honor. And I don’t think —_

it’s an appropriate place for an endless

46a

Report and Recommendation of the Magistrate

barrage of privately sponsored displays

supporting either religious, political,

commercial or other viewpoints. | there

preserved for its proper uses.

One of those proper uses has been, and |

believe should continue to be, as a place for

expression, for speech, for assembly. And |!

would be extraordinarily ill-advised for us to

ever do so. But I think the decision to

structures for extended periods of time on the

Green is a very different matter and that it's

important that we stand by the decision we

made last summer.

Enrich Aff. at Ex. S, pp. 13-16. The Board invited the

applicant to submit an application consistent with the

regulations, such as a one day celebration of which a

créche or a structure was a part, but no subsequent

application was made. Enrich Aff, at 944, Ex. T, pp. 9-

10.

On December 12, 2000, a resident of Lexington

applied to the Board for permission to hold a “live”

nativity scene and service by Reverend DiLorenzo on

the Green on December 23, 2000 from 7:00 P.M. to

10:00 P.M. Supplemental Affidavit of Peter D. Enrich

(Docket #42) at Ex. A. The permit was approved by the

Board on December 18, 2000. Id. at Ex. B.

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48a

Report and Recommendation of the Magistrate

Regulations. Enrich Aff. at Ex. B, 93.iv. The “permit

process" added in July 2000 also states that permit

applications should include the ‘statement of

equipment and facilities to be used.” Id. at Ex. B,

q5(b)(vi). However, during discussion about the

proposed regulations, Mr. Enrich had stated “[j]ust to

clarify: If I’m understanding correctly, these ‘displays

of a ceremonial nature’ people should understand,

under the proposed regs, could only be there for the

period requisite fur the event. And an ‘event’ is, by

definition ‘no more than eight hours.’ My

understanding is that the intent of the language is

that if the structure had to be put up the night before

to be available for an event the next day: a stage for

Lex Fest, or a pulpit for the midnight service or

something like that, of course it could go up the night

before. That’s what the language is: the period

required fur such events. But beyond that, it would

not be permissible.” Plaintiffs’ Ex. J at 17 (transcript

of 7/24/00 meeting).

The First Amendment to the Constitution of the

United States provides as follows:

Congress shall make no laws respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peacefully to assemble, and to petition

the Government for a redress of grievances.

U.S. Const., Amend. I. These rights have been applied

to the States through the Fourteenth Amendment.

See Cantwell v. Connecticut, 310 U.S.-296, 303, 60

S.Ct. 900, 903, 84 L.Ed. 1213 (1940). Plaintiffs’

challenge requires an analysis of two fundamental

freedoms protected by the First Amendment: freedom

of speech and freedom of religion. After careful

analysis, this court concludes- that the new

49a

Report and Recommendation of the Magistrate

Regulations enacted by the Board do not violate the

plaintiffs’ constitutionally protected rights.

A. Rights of Free Speech

It is undisputed that the Battle Green is a “public

forum,” the type of place which has “immemorially

been held in trust for the use of the public and, time

out of mind, fhas] been used for purposes of

assembly, communicating thoughts between citizens,

and discussing public questions.” Hague v. Comm. for

Indus. Org., 307 U.S. 496, 5 15, 59 S. Ct. 954, 963,

83 L.Ed. 1423 (1939), quoted in Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103

S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). “In these

quintessential public forums, the government may not

prohibit all communicative activity.” Perry, 460 U.S.

at 45, 103 S.Ct. at 955. The standards for evaluating

what limitations on communicative activity may

permissibly be imposed are easy to state, but far more

difficult to apply. Thus, if a limitation on expression is

“content-based,” it is subject to a “strict scrutiny”

standard, and the state “must show that its regulation

is necessary to serve a compelling state interest and

that it is narrowly drawn to achieve that end.” Id.

(citation omitted). This is the standard plaintiffs argue

should be applied in this case. The Board, on the

other hand, argues that an “intermediate” standard of

scrutiny is applicable to its content-neutral

regulations. Thus, the state may “enforce regulations

of the time, place, and manner of expression which

are content-neutral, are narrowly tailored to serve a

significant government interest, and leave open ample

alternative channels of communication.” Id. and cases

cited. See also

Globe Newspaper Co. v. Beacon Hill

Architectural _Com'n, 100 F.3d 175, 182 (1* Cir.

1996), and cases cited (applying Perry standards to

analyze constitutionality of limits imposed on

distributing newspapers in a public forum). “Given the

‘differing analytic modalities, it is unsurprising that

50a

Report and Recommendation of the Magistrate

many First Amendment battles over’ the

constitutionality of government regulations start with

a debate about what level of scrutiny is appropriate.’

The instant case is no exception.” Id. (internal citation

omitted).

The ns n

The recent case of Bartnicki v. Vopper, _U.S._,

121 S.Ct. 1753 (2001), on which plaintiffs rely,

confirms the standard for determining whether a

regulation is content-based. As the Bartnicki court

held:

“Deciding whether a particular regulation is

content based or content neutral is not always

a simple task. . . . As a general rule, laws that

by their terms distinguish favored speech

from disfavored speech on the basis of the

ideas or views expressed are content based.”

Turner Broadcasting System, Inc. v. FCC, 512

U.S. 622, 642-643, I29 L.Ed.2d 497, I 14 S.Ct

2445 (1994). In determining whether a

regulation is content based or content

neutral, we look to the purpose behind the

regulation; typically, “government regulation

of expressive activity is content neutral so

long as it is ‘justified without reference to the

content of the regulated speech.” Ward v.

Rock Against Racism, 491 U.S. 781, 791, 105

L.Ed.2d 661, 109 S.Ct. 2746 (1989).

Id. at 1760. The “fundamental principle that underlies

[the] concern about ‘content-based’ speech

regulations [is] that ‘government may not grant the

use of a forum to people whose views it finds

acceptable, but deny use to those wishing to express

less favored or more controversial views.” Ci

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49,

106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986) (quoting

Sla

Report and Recommendation of the Magistrate

Police Dep’t of Chicago v, Mosley, 408 U.S. 92, 95-94,

92 S.Ct. 2286, 2289-2290, 33 L.Ed.2d 212 (1972)).

The Regulations at issue are facially neutral, and

do not distinguish between the contents of any

different types of speech. All expressive unattended

structures, regardless of the message conveyed, are

prohibited.!2 There is no need to consider the

substance of the message being conveyed. Under

such circumstances, the Regulations can _ be

“justified” without reference to the content of

regulated speech and are content neutral. See, e.g.,

United States v. Grace, 461 U.S. 171, 181 n.10, 103

S.Ct. 1702, 1709 n.10, 75 L.Ed.2d 736 (1983) (total

ban on two types of expressive conduct, picketing and

leafleting, is clearly facially content-neutral); Globe

Newspaper Co., 100 F.3d at 183, 186 (total ban on

newsracks is content i.eutral); Messer v. City of

Douglasville, 975 F.2d 1505, 1509 (llth Cir. 1992),

and cases cited (ban on off-premises billboards is

viewpoint neutral since it is a regulation based on

location and not on the viewpoint of the speaker). See

also City of Cincinnati v. Discovery Network, Inc., 507

US. 410, 425 n.20, 429, 113 S.Ct. 1505, 1514 n.20,

1516, 123 L.Ed.2d 99 (1993) (while total ban on off-

site billboards or newsracks may be permissible,

when an examination of content is required to

determine which regulations apply, regulations are

“content-based”); Id. at 425 n.20, 444-45, 113 S.Ct. at

1514 n.20, 1524-25 (analyzing Metromedia Inc. v. City

of San Diego, 453 U.S. 494, 101 S.Ct. 2882, 69

L.Ed.2d 800 (1981), where seven Justices concluded

12 The First Amendment protects expressive conduct. See Clark v.

i -Vi 468 U.S. 288, 293 & n.5, 104

S.Ct. 3065, 3069 & n.5, 82 L.Ed.2d 221 (1984). Thus, the fact

that the Regulations may allow non-expressive structures such as

bleachers dues not implicate First Amendment rights except to the

extent that such allowance calls into question the Board’s stated

reasons for the Regulations. As discussed infra, however, this

court finds that the Board’s rationale is supported by the record.

52a

Report and Recommendation of the Magistrate

that the city could completely ban off-site commercial

billboards due to safety and esthetic reasons).

Plaintiffs argue that this court should look behind

the language of the Regulations and rule that the

Board’s purpose in enacting the Regulations was to

suppress “the message of the créche presence on the

Battle Green,” a message which some Town residents

found offensive. See Plaintiffs’ Mem. at 20 (“Interest

Sought To Be Achieved By The Selectmen”). “An

ordinance is not content-neutral if the government

has adopted it ‘because of disagreement with the

“message it conveys.” D.H.L. Assocs. v. O'Gorman, 199

F.3d 50, 57 (1 Cir. 1999) (internal citations and

quotations omitted). Plaintiffs’ argument fails in this

case since the objections raised concerning the créche

were not to any “message,” but to the time, place and

manner of its dissemination.

As an initial matter, and perhaps controlling, is

the fact that the créche is not banned from the Green.

It may be displayed in connection with special events,

or other active uses of the Green. Thus, the premise of

plaintiffs’ argument, that the “message of the créche”

has been suppressed on the Green, is without

support.

Even if, however, inquiry into the motives of the

Board is warranted, the plaintiffs still cannot prevail.

The record does net support plaintiffs’ claim that the

Regulations were enacted due to hostility toward the-

message of the créche.

It is well established that any analysis as to the

Board’s “motives” must be tempered by the

established principle, noted above, that “[ijnquiries

into congressional motives or purposes are a

hazardous matter.” O’Brien, 391 U.S. at 383, 88 S.Ct.

at 1682. A court will not void a statute that is

constitutional on its face based on legislative .

statements; where it “could be reenacted in its exact

form if the same or another legislator made a ‘wiser’

53a

Report and Recommendation of the Magistrate

speech about it.” Id. at 384, 88 S.Ct. at 1683.

Moreover, as Justice Scalia stated in his concurring

opinion in Hialeah, a case on which plaintiffs rely

extensively, “it is virtually impossible to determine the

singular ‘motive’ of a collective legislative body... .

_ The First Amendment does not refer to the purposes

for which legislators enact laws, but to the effects of

the laws enacted... .” Hialeah, 508 U.S. at 558, 113

S.Ct. at 2240-41.

Consistent with these principles, where, as here,

“restrictions apply equally to all demonstrators,

regardless of viewpoint, and the statutory language

makes no reference to the content of the speech,” the

fact that enactment of the restrictions was motivated

by a politically charged issue does not invalidate the

restrictions, Hill v. Colorado, 530 U.S. 703, 719, 120

S.Ct. 2480, 2491, 147 L.Ed.2d 597 (2000) (restrictions

on dissemination of information upheld even though

enacted as a result of incidents at abortion clinics,

where _ restrictions applicable at all healthcare

facilities). The “contention that a statute is ‘Viewpoint

based’ simply because its enactment was motivated

by the conduct of the partisans on one side of a

debate is without support.” Id. at 724, 120 S.Ct. at

2494 (internal citations omitted). See also City of

- Renton, 475 U.S. at 47, 106 S.Ct. at 929 (where

ordinance seeks to control secondary effects of

speech, fact it restricts some speech does not make it

invalid).

Even the must detail-driven analysis of the

legislative history in this case does not support the

conclusion that the Regulations were enacted to

suppress the “message of the créche” as opposed to

regulating the time, place and manner of its

expression. Those voicing their opinions recognized

that the use of the Green for the expression of

religious beliefs, including Christianity, could and

would continue unabated — it was the erection of a

semi-permanent display which was left unattended

54a

Report and Recommendation of the Magistrate

which raised the ire of some residents. The records

indicate that some Christians shared the view that the

Green was not the appropriate place for an

unattended religious display. There simply is no

support for plaintiffs’ contention that the record

establishes anti-Christian animus and an attempt to

quash the dissemination of Christian ideals.15

The case before the court is clearly distinguished

from Hialeah, 508 US. at 533, 113 S.Ct. at 2227, a

free exercise of religion case, where the Court

concluded that although health ordjnances were

facially neutral, they were enacted to suppress

religion or religious conduct and thus were subject to

a strict scrutiny standard.!* In Hialeah, all the history

pointed to the fact that the legislators intended to

prohibit the practice of the Santeria religion. Id. at

534-35, 113 S.Ct. at 2227-28. In the instant case,

while the créche was the motivating factor, there is no

evidence of an attempt to preclude the practice of any

Christian (or other) religion. In Hialeah, the Court

ruled that “[ajpart from the text, the effect of a law in

its real operation is strong evidence of its object.,”-and

13 At oral argument, plaintiffs pointed to the proposed display

regarding the “religious practices of the Crusaders,” see note 7,

supra, as evidencing an anti-Christian sentiment. This court does

not read the statement the same way at all. The writer appeared to

be pointing out that history includes examples of conduct

undertaken in the name of various religions which is no longer

considered acceptable under modern standards. In any event, the

statements of one Town resident will not control this court’s

analysis.

¢ Plaintiffs’ free exercise clause argument will be discussed in

more detail infra. The free exercise clause “protects against

governmental hostility which is masked as well as overt.” Hialeah,

508 U.S. at 534, 113 S. Ct. at 2227. As such, in connection with

free exercise cases, courts engage in an inquiry similar to the one

raised in connection with plaintiffs’ free speech argument namely

whether the regulations were enacted due to hostility toward the

message of the speech.

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Report and Recommendation of the Magistrate

that, in that case, the large number of exceptions in

the regulations created a situation where only the

Santeria religion was affected by the regulations. Id.

at 535, 113 S. Ct. at 2228. In the instant case, all

expressive displays are prohibited — regardless of the

message and the subject. The record clearly

establishes tHat, whether acting out of pique or

conviction, residents were going to erect other

displays if the créche was allowed to stand

unattended. The Regulations apply to all such

displays and do not target Christianity. Finally, in

Hialeah, the Court. cautioned against unequal

treatment between religious and secular conduct. Id.

at 542-43, 113 S.Ct. at 2232 (“inequality results when ~

a legislature decides that the governmental interests it

seeks to advance are worthy of being pursued only

against conduct with a religious motivation”). In the

instant case, the Regulations do not affect only

religious conduct, and a case by case analysis of the

messages sought to be conveyed was expressly

rejected by the Board.

In concluding that the Regulations at issue are

content-neutral, this court recognizes that the fact

that speech may be considered by some “offensive”

and “divisive” does not justify its being treated

differently than less controversial speech. See, e.g.,

Forsyth County Georgia v. Nationalist Movement, 505

U.S. 123, 134-35, 112 S.Ct. 2395, 2403-04, 120

L.Ed.2d 101 (1992) (“[l]istener's reaction to speech is

not a_content-neutral basis for regulation”;

impermissible fees imposed in connection with parade

permit where content of speech, and public reaction

thereto, considered in setting of amount). See also The

Nationalist Movement v. City of Boston, 12 F.Supp.2d

182, 191-92 (D. Mass. 1998) (denial of parade permit

due to concerns about public’s reaction to parade is

not “content neutral” and violates First Amendment

where one application treated different than another).

There is no question in the present case that

56a

Report and Recommendation of the Magistrate

opposition to the créche motivated the amendment to

the Regulations. However, there is still no evidence of

an attempt to suppress the “message of the créche,”

or that the “message of the créche” was treated

differently than any other message which may have

been deemed less controversial. There were no special

or different burdens imposed on the plaintiffs’ request

for a permit to display the créche: other permit

requests had to meet the same criteria.

The plaintiffs rely on Cox v. Louisiana, 379 U.S.

536, 551-52, 85 S.Ct. 453, 462-63, 13 L.Ed.2d 471

(1965), where the Supreme Court held:

[A] “function of free speech under our system

of government is to invite dispute. It may

indeed best serve its high purpose when it

induces a condition of unrest, creates

dissatisfaction with conditions as they are, or

even stirs people to anger. Speech is often

provocative and challenging. It may strike at

prejudices and preconceptions and have

profound unsettling effects as it presses for

acceptance of an idea. That is why freedom of

speech ...is... protected against censorship

or punishment... . There is no room under

our Constitution for a more restrictive view.

For the alter-native would lead _ to

standardization of ideas either by legislatures,

courts, or dominant political or community

groups.” | .

(citations omitted). Ironically, this is exactly what the

Selectmen apparently intended to encourage in

enacting the Regulations. Active and interactive

exchanges or ideas are valued — it is the ability to

simply put up a display and walk away that the

Regulations prohibit.

The First Amendment does not prevent public

debate from leading to legislation — in fact, such a

result ‘would be completely antithetical to the aims of

57a

Report and Recommendation of the Magistrate

the First Amendment. Where, as here, public debate

results in content-neutral regulations, the appropriate

standard of review is an intermediate level of scrutiny.

For the reasons detailed below, the Regulations

satisfy that standard.

The Restrictions Satisfy the

Interme Scrutin dard

The fact that the Regulations are content-neutral

does not end the inquiry: the restrictions imposed as

to the time, manner and place of expression must

satisfy the intermediate scrutiny standard. See D.H.L.

Assocs., 199 F.3d at 59. Thus, the inquiry “is whether

the ordinance is narrowly tailored ‘to serve a

substantial government interest and allows for

reasonable alternative avenues of communication.”

Id. (citing City of Renton, 475 U.S. at 50, 106 S.Ct. at

930, and Clark, 468 U.S. at 293, 104 S.Ct. at 3069).

See also Perry, 460 U.S. at 45, 103 S.Ct. at 955, and

cases cited. The United States Supreme Court has

already suggested that “a ban on all unattended

displays,” including religious structures, might be

“reasonable, content-neutral restrictions.” See Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S.

753,761, 115 S.Ct. 2440, 2446, 132 L.Ed.2d 650

(1995) (addressing propriety of display of a cross

under the Establishment Clause). See _ also

Congregation Lubavitch v. City of Cincinnati, 923

F.2d 458, 460-61 (6% Cir. 1991) (while ban on only

religious displays unconstitutional, prohibiting all

expressive unattended structures would be

reasonable restriction). In the present case, the

Regulations do satisfy the intermediate scrutiny

standard.

Narrowly Tailored to Serve

a Substantial Government Interest

“A content-neutral time, place, and manner

restriction is narrowly tailored if it ‘promotes a

58a

Report and Recommendation of the Magistrate

substantial government interest that would be

achieved less effectively absent the regulation.”

D.H.L. Assocs., 199 F.3d at 59 (quoting Ward v. Rock

Against Racism, 491 U.S. 781,799, 109 S.Ct. 2746,

2758, 105 L.Ed.2d 661 (1989) and authorities cited).

It is well established that while the restriction must

be narrowly tailored, “it need not be the least

restrictive or least intrusive means” of accomplishing

“the government’s_ legitimate, | content-neutral

interests.” Ward, 491 U.S. at 798-99, 109 S.Ct. at

2757-58 (citations omitted). See also Clark, 468 U.S.

at 297, 104 S. Ct. at 3071). 4

In the present case, the government's legitimate,

content-neutral interest!5 is to maintain the aesthetic

qualities of the Green and, as stated in the

Regulations themselves, “to- promote the use of the

Battle Green in a manner consistent with its nature

and history.” Enrich Aff, at Exs. B and C at 93a. The

government has a_ well-recognized interest in

maintaining the beauty of public parks shared by

many. See, e.g., Clark, 468 U.S. at 296, 104 S.Ct. at

3070 (government has_ substantial interest in

maintaining parks in the heart of the Capital in an

attractive and intact condition); Metromedia, Inc., 453

U.S. at 507-08, 101 S.Ct. at 2892 (improving traffic

safety and the appearance of the city are substantial

15 Some cases further describe these valid interests as having to

be “unrelated to the suppression of free speech.” Clark, 468 US. at

294, 104 S.Ct. at 3069; see also United States v. O’Brien, 391 U.S.

at 377, 88 S.Ct. at 1679 (“[A] governmental regulation is

sufficiently justified if it is within the constitutional power of the

government; if it furthers an important or substantial

governmental interest; if the governmental interest is unrelated to

the suppression of free speech; and if the incidental restriction on

alleged First Amendment freedoms is no greater than is essential

to the furtherance of that interest.”). This standard “for validating

a regulation of expressive content ..., in the last analysis, is little,

if any, different from the standard applied to time, place or

manner restrictions.” Clark, 468 U.S. at 298, 104 S. Ct. at 3071.

59a

Report and Recommendation of the Magistrate

governmental goals); Globe Newspaper Co., 100 F.3d

at 187 (ban on newsracks upheld, government has

legitimate aesthetic goal of enhancing historic

architecture of the District by reducing visual clutter).

Thus, it is well settled that “the state may legitimately

exercise its police powers to advance esthetic values.”

Members of City Council of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789,805, 104 S.Ct. 2118, 2129,

80 L.Ed.2d 772 (1984). Moreover, “a government has a

more significant interest in the aesthetics of

designated historic areas than in other areas.” Messer

v. City of Douglasville, 975 F.2d 1505, 1510 (11% Cir.

1992) (prohibition of off-premises advertising in

historic district upheld). See also Globe Newspaper

Co., 100 F.3d at 187.

The present Regulations, which prohibit only the

display of unattended structures, do not burden

substantially more speech than is necessary to

further the governmental interests, and thus are

narrowly tailored. Globe Newspaper Co., 100 F.3d at

188. The plaintiffs are free to disseminate the message

of the créche in numerous other interactive ways. See

Hill, 530 U.S. at 726, 120 S.Ct. at 2494 (“As we have

emphasized on more than one occasion, when a

content-neutral regulation does not entirely foreclose

any means of communication, it may satisfy the

tailoring requirement even though it is not the least

restrictive or least intrusive means of serving the

statutory goal.”). In fact, the créche itself may be

displayed so long as it is in connection with an event.

The limited restriction on one specific method of

disseminating a message satisfies the requirement

that a regulation be narrowly tailored.'®

16 There is no merit to plaintiffs’ claim that the Board may

arbitrarily enforce the Regulations so as to render them

unconstitutional. “A government regulation that allows arbitrary

application is ‘inherently inconsistent with valid time, place, and

manner regulation bemuse such discretion has the potential for

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62a

Report and Recommendation of the Magistrate

Shuttlesworth v. City of Birmingham, 382 U.S. 87, 91,

86 S.Ct. 211, 213, 15 L.Ed.2d 176 (1965)

(constitutionality of law reviewed in light of narrow

construction given to it by the enforcing court);

Forsyth County Ga., 505 U.S. at 131, 112 S.Ct. at

2402 (in evaluating challenge to regulations, must

consider county's authoritative constructions of the

ordinance, including its own implementation and

interpretation).

In. any event, there is a qualitative difference

between unattended structures which accompany

active conduct and enable people to present and

participate in events, and permanent structures

which display their message without human

participation. The limited use of unattended

structures such as bleachers does not alter the

defendants’ legitimate concern with the historic and

aesthetic value of the Green as a matter of fact. And,

as a matter of law, the fact that absolutely every

offending structure has not been banned dues not

render the Regulations unconstitutional. See, e.g.,

Globe Newspaper Co., 100 F.3d at 185, 191 (fact that

public street furniture allowed but newsracks

prohibited does not render regulations

unconstitutional; even though some blight remains,

the partial, content-neutral ban enhanced city’s

appearance). In Vincent, 466 U.S. 789, 104 S.Ct.

2118, 80 L.Ed.2d 772 (1984), the Supreme Court held

that an ordinance prohibiting posting of signs on

public property was not unconstitutional as applied to

expressive activities of a group of supporters of a

political candidate. The ban was upheld on the

grounds that the state was advancing aesthetic

values, and since “it is the tangible medium of

expressing the message that has the adverse impact

on the appearance of the landscape,” the ordinance

curtailed no more speech than necessary to

accomplish its purpose by banning the signage but

allowing alternative methods of distribution. 466 U.S.

63a

Report and Recommendation of the Magistrate

at 810-12, 104 S.Ct. at 2131-33. For the same

reasons, the instant regulations are sufficiently

narrowly tailored to meet a legitimate governmental

interest.

Reasonable Alternative

Avenues of Communication

It is undisputed that plaintiffs are free to display

the créche on the Green, provided that it is part of an

event, and that they are free to disseminate the

message of the créche in other forms consistent with

the new Regulations. It is further undisputed that the

plaintiffs may display the créche as an unattended

display on church lawns directly across the street

from the Green. Enrich Aff. at 946. Nevertheless,

plaintiffs argue that there are no _ reasonable

alternative avenues of communication of the message

of the créche As the plaintiffs contend:

Display of the créche on the Lexington Green

is crucial to the plaintiffs’ expressive message:

the Green was the site of a momentous event

in the Nation’s history, and plaintiffs wish to

communicate their belief that the Nation’s

struggle for independence is connected to the

religious significance of Christmas, The

struggle of the Minutemen on Lexington

Green represents to the plaintiffs the

initiation of a long and arduous war that

culminated in the guarantees of free religious

exercise and expression, as represented by

the Nativity Scene’s placement in the public

forum.

Plaintiffs’ Mem. at 18. Plaintiffs’ argument must fail

because they are still free to communicate their belief

that the “religious significance of Christmas” is

connected to the Green — they simply cannot convey

the message through the placement of an unattended

créche on the Green, Live nativity scenes, religious

64a

Report and Recommendation of the Magistrate

services, prayer vigils and the like continue to be

allowed and do take place on the Green.

The sentiments expressed by the plaintiffs that the

Green is a special place which exemplifies the values

which form the foundation of the United States and

its Constitution is a sentiment shared by many from

differing backgrounds, walks of life, political, religious

and other beliefs. The Board has acknowledged this

and encourages the Green’s continued use as a center

for the dissemination of ideas. All that the Board has

dune is regulate, in an even-handed, content-neutral

way, the time, place and manner of the exercise of

plaintiffs’ rights of free speech.

This case involves the “use of a privately owned

structure placed on public property for which there

are ample alternative channels available for the

distribution” of the créche’s message. Globe

Newspaper Co., 100 F.3d at 192. Ample alternative

channels exist where, as here, the “ordinance did not

affect any individual’s right to exercise the right to

speak and distribute literature in the same place

where the posting of signs [or display of unattended

structures] is prohibited.” Id. at 193 (citing Vincent,

466 U.S. at 812, 104 S. Ct. at 2132-33). While the

First Amendment guarantees the right to disseminate

ideas, “it does not guarantee the right to do so

through private structures erected on _ public

property.” Id. at 195.

For all these reasons, the new Regulations do not

violate plaintiffs’ rights of free speech.

B. Free Exercise Clause

Plaintiffs also argue that the Regulations violate

the Free Exercise Clause found in the First

Amendment. Relying on Hialeah, plaintiffs argue that

the object of the Regulations was to suppress religion

or religious conduct, and was _ therefore

unconstitutional. See Plaintiffs’ Mem. at 7-10.

65a

Report and Recommendation of the Magistrate

For the reasons detailed above, the record does not

support the plaintiffs’ description of the purpose of

the Regulations. Even more importantly, however, this

argument must fail because the “Free Exercise Clause

is not implicated here.” Strout v. Albanese, 178 F.3d

97, 65 (1s Cir, 1999) (upholding constitutionality of

law which authorizes grants to private schools

provided they are “non-sectarian” in nature). The

inquiry in a free exercise analysis is “whether

government has placed a substantial burden on the

observation of a central belief or practice.” Id. (quoting

Hernandez v. Commissioner, 490 U.S. 680,699, 109

S.Ct. 2134, 2148, 104 L.Ed.2d 766 (1989). See also

Hialeah, 508 U.S. at 534-35, 113 S.Ct. at 2227-28

(even though regulations refer to any and all religious

groups - the record “compels the conclusion that

suppression of the central element of the Santeria

worship service was the object of the ordinances.”)

(emphasis added). In the instant case, plaintiffs have

admitted that the display of the créche on the Green

is not an integral part of their ability to exercise their

religion. There is nothing in the, regulations which in

any way interferes with the plaintiffs’ ability to

practice their faith.

CONCLUSION

For all of the reasons detailed herein, this court

recommends that the plaintiffs’ motion for summary

judgment (Docket #43) be DENIED; and that the

defendants’ motion for summary judgment (Docket

#40) be ALLOWED.!9

19 The parties are herby advised that under the provisions of Rule

3(b) of the Rules for United States Magistrates in the United States

District Court for the District of Massachusetts, any party who

objects to these proposed findings and recommendations must file

a written objection thereto with the Clerk of this Court within 10

days of the party’s receipt of the Report and Recommendation.

The written objections must specially identify the portion of the

eee

aaa nn

66a

Report and Recommendation of the Magistrate

ls/

Judith Gail Dein

United States Magistrate Judge

proposed findings recommendations or report to which objection is

made and the basis for such objections. The parties are further

advised that the Untied States Court of Appeals for this Circuit

has repeatedly indicated that failure to comply with this rule shall

preclude further appellate review. See Keating v. Sec’y of health &

Human Servs., 848 F.2d 271, 275 (1% Cir. 1988); United States v.

Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); park Motor Mart, Inc.

v. Ford Motor Co., 616 F.2d 603, 604-605 (1% Cir. 1980); see also

Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985). Accord

Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (18 Cir.

1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1* Cir.

1994); Santiago v. Canon U.S.A., inc., 138 F.3d 1, 4-5 (1st Cir.

1998).

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67a

APPENDIX E

RULES AND SPECIFICATIONS REGULATING

THE USE OF THE BATTLE GREEN

The following rules and regulations have been

adopted in accordance with the General By-Law,

Article XXV, Section 225, "Protection of the Battle

Green", as amended. If these regulations or portions

thereof, conflict with the By-Law, the By-Law shall

take precedence.

DEFINITIONS

1. a. "Audio device" means any radio, television set,

musical instrument, or other device that

produces noise.

b. "Disorderly conduct" means any _ action

intended to cause inconvenience, annoyance,

or alarm, or which recklessly creates a risk

thereof; fighting, threatening or violent

behavior; unreasonable noise; abusive

language directed toward any person present;

wrestling in vicinity of others; throwing of

breakable objects; throwing of stones; or

spitting.

c. "Powerless flight" means any device used to

Carry persons or objects through the air; for

example, sailplanes, gliders, balloons, body

kites, hand gliders.

d. "Public use limit" means the maximum number

of people or the amount, size, or type of

equipment permitted on the Battle Green at

one time, as established by the Board of

Selectmen.

c. "Special event" means demonstrating,

picketing, speechmaking, marching, holding of

vigils, and all other similar forms of conduct

which involve the active communication or

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1986 version of the Regulations

expression of opinions or grievances, engaged

in by one or more persons, the conduct of

which has the effect, intent or propensity to

draw a crowd or onlookers.

“Wet turf" shall mean any natural condition

that would make the Green vulnerable to

excessive damage by heavy wear or use; for

example, heavy rains, reseeding, drought

conditions.

"Non-permit activities" shall mean activities

that may be engaged in without a permit issued

by the Board of Selectmen.

NON-PERMIT ACTIVITIES

2. Subject to the restrictions in these rules and

regulations, permits shall not be required for:

Conduct that does not cause_ public

inconvenience, annoyance, or alarm.

Picnicking restricted to benches only and to

groups of no more than five people. Picnicking

on the Green by bus tours or similar groups is

forbidden.

The gathering of groups on the Battle Green for

the sole purpose of exploring and enjoying its

history, and which do not remain for more than

four hours.

Playing of audio devices at a reasonable

volume.

The playing of games that do not:

1. exceed three players; or

2. damage the Green's physical condition; or

3. disturb or inconvenience those visiting the

Green for historic interest; or

4. constitute any type of disorderly conduct.

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1986 version of the Regulations

PERMIT REQUIRED ACTIVITIES

3. a. The purpose for requiring permits for certain

activities is to promote the use of the Battle

Green in a manner consistent with its nature

and history; to protect the Battle Green from

harm; to ensure adequate notice of the event so

that arrangements can be made to protect the

public health and safety and to minimize

interference with the event by the public.

b. Permits are required for any of the following

activities, singly or in combination:

1. Any group activity reasonably likely to

exceed the public use limit estabiished by

the Board of Selectmen.

2. Special events, public meetings,

assemblies, gatherings, demonstrations,

parades, and other active public

expressions of opinion.

3. Pageants, reenactments, regattas,

entertainments, or other as public

spectator attractions.

4. Displays of a religious or ceremonial

nature.

S. Use of public address system, electrical

lighting, or other electrical devices.

6. Distribution of printed matter other than

commercial advertising.

7. Possession of firearms if unloaded or

packed in such a way as to prevent their

use.

8. Possession of explosives, as long as

individuals or groups conform to Federal,

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1986 version of the Regulations

State, and local laws governing such

possession.

9. Use or possession of fireworks or

firecrackers.

IMPERMISSIBLE ACTIVITIES

4. The following activities are strictly prohibited:

a. Any group activity that exceeds the public use

limit established by the Board of Selectmen for

the Battle Green.

b. Possession, destruction, injury, defacement,

removal, or disturbance of any building, sign,

equipment, monument, statue, marker, animal

or plant.

c. Distribution or display of commercial

advertising; or soliciting of business; or any

other commercial transactions.

d. Remaining on the Battle Green for more than

four hours.

aioe ts

e. Abandonment of any vehicle or personal

property.

f. Unreasonably loud operation of audio devices.

g. Delivery of any person or thing by parachute or

helicopter.

h. Powerless flight activities.

i. Begging.

j. Disorderly conduct.

k. Use of firearms.

1. Use of metal detecting device for personal use.

m. Gambling of any form or operation of gambling

devices.

n. Picnicking except as provided in 2b.

o. Use of roller skates and skateboards.

Approved by the Board of Selectmen July 15, 1986

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.