Opposition Brief — Grossbaum v. Indianapolis-Marion County Building Authority

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No. 96-1485 |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

RABBI ABRAHAM GROSSBAUM

and LUBAVITCH OF INDIANA, INC.,

Petitioners

V.

INDIANAPOLIS-MARION COUNTY BUILDING AUTHORITY

and RONALD L. REINKING,

in his Capacity as General Manager,

Respondents

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

THOMAS J. COSTAKIS

Counsel of Record

KRIEG DeVAULT ALEXANDER & CAPEHART

Suite 2800, One Indiana Square

Indianapolis, Indiana 46204-2017

(317) 636-4341

Attorneys for Respondent

1

QUESTION PRESENTED FOR REVIEW

When a government body bans all private displays in a

nonpublic forum, and the ban is even-handedly enforced, is the

motive for enacting the ban relevant?

Ba ae URES yet oR ESC acne ea on oP Re aR SN RSET. Serr MeeecaCnMa ma

iia

il

LIST OF PARTIES

The caption of the case in this Court contains the names

of all parties to the proceeding in the court whose judgment is

under review.

The Indianapolis-Marion County Building Authority is

a municipal corporation existing under the laws of the State of

Indiana and has no stockholders, parent companies or

subsidiaries.

il

TABLE OF CONTENTS

Question Presented For Review ......................

List Of Parties

IR re re i a ee

Jurisdiction

A.

An Introduction to the Chronology

I oo i eS Cele cia eer 3

The Historical Problem of Congestion

in the City-County Building .............

The Concern Over Security in the

City-County Building ..................

The Building Authority’s Understanding

of the ICLU’s Complaint and its Reasons

for Adopting the October 1993 Policy .....

The Activity in the Lobby Following

the Injunction of the 1993 Policy .........

1V

Page

F. The Three 1995 Policies at Issue and

the Motive of the Board Members

MEN Soa ee ee ne 9

G. The Timing of the Seventh Circuit’s

Ruling and its Effect on the Building

Authority’s Actions Thereafter.......... 10

H. The Effect and Application of Amended

GM 2 SA 1]

I. Correction of Misstatements of

Fact and Law inthe Petition............ 12

summery Of The Asmat |. oS. 2 14

Reasons For Denying The Writ ..................... 15

I. The Decision Below Does Not Conflict

With The Decisions Of This Court............. 15

II The Decision Below Does Not Conflict

With The Rulings Of Other Circuits ........... 18

Il. The Decision Below Is Limited To

ane Facts Of ThisCom .. ee cS. 19

RAIMI Socket oes oe ee es 2]

Vv

TABLE OF CITED AUTHORITIES

Page

Capitol Square Review and Advisory Board

v. Pinette, 115 S.Ct. 2440 (1995) ........... 17,18

City Council v. Taxpayers for Vincent,

NOY 52 ohs TRO CED Cie bap hs eR 17

Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc., 473 U.S. 788 (1985) ........ te a oe

Daniel v. Tampa, 38 F.3d 546 (11th Cir. 1994) ......... 19

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 17

Grossbaum v. Indianapolis-Marion County

Building Authority, 100 F.3d 1287

PEGs SOO oo ee ks ey ee ee 4, 314,42,43

Grossbaum v. Indianapolis-Marion County

Building Authority, 909 F.Supp. 1187

Sas. FUME. PPO iss a So ae ea pee een ne

Grossbaum v. Indianapolis-Marion County

Building Authority, 63 F.3d 581

RPA, See cd ba ea hae eu cee ee oe

Grossbaum vy. Indianapolis-Marion County

Building Authority, 870 F.Supp. 1450

ue: UR: OEE Naa Sek i wactumeeee tee 2

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............. 17

vi

Page

Perry Educ. Ass'n. v. Perry Local Educators

ASEM, VOSS SDS. 57 OSES ook boven wns 14, 16

Searcey v. Harris, 888 F.2d 1314

U2 BEAL: SOE ees be ieee eee eae 18

Texas v. Knights of the Ku Klux Klan,

Je e306 IOs BOO) fcc eG 19

Turner Broadcasting System, Inc. v. FCC.

BE DA SOFT I IOS oiona bS ake s ce eee 16

Wallace v. Jaffree, 472 U.S. 38 (1985) ............... 17

No. 96-1485

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

RABBI ABRAHAM GROSSBAUM

and LUBAVITCH OF INDIANA, INC.,

Petitioners,

v.

INDIANAPOLIS-MARION COUNTY BUILDING AUTHORITY

and RONALD L. REINKING,

in his Capacity as General Manager,

Respondents

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents request that the Court deny the petition for

writ of certiorari seeking review of an opinion of the United

States Court of Appeals for the Seventh Circuit.

to

OPINIONS BELOW

The opinion of the Seventh Circuit is reported at

100 F.3d 1287. The opinion of the district court is reported at

909 F.Supp. 1187. Earlier opinions of the Seventh Circuit and

district court in this case, although not directly related to the

question presented to this Court for review, are reported at

63 F.3d 581 and 870 F.Supp. 1450, respectively.

JURISDICTION

The opinion of the Seventh Circuit was decided

November 20, 1996. The petitioners obtained an extension of

time to file a petition for writ of certiorari to March 18, 1997.

The jurisdiction of this Court is based on 28 U.S.C. § 1254.

RULES INVOLVED IN THE CASE

On October 2, 1995 the Board of Directors of the

Indianapolis-Marion County Building Authority ("Building

Authority") unanimously amended and restated Rules 13 and

14 of the Rules and Regulations Governing the City-County

Building to read:

USE OF COMMON AREAS. Use of the

common areas of the City-County Building

including lobbies, corridors, the Public

Assembly Room, Observatory, and other

meeting rooms (generally those public areas not

leased to governmental tenants) is restricted to

the Building Authority and its governmental

tenants. No displays, signs or other structures

shall be erected in the common areas by any

non-governmental, private group or individual

since such objects may interfere with

unobstructed and safe ingress and egress by

ee

Lod

employees of the governmental tenants and by

the general public conducting business with

government offices and courts in_ the

City-County Building.

USE OF COMMON AREAS’ FOR

POLITICAL ACTIVITIES. Use of the

common areas of the City-County Building

(generally those public areas not leased to

governmental tenants) for political activities is

prohibited. No political signs, pictures or other

materials shall be posted or displayed in the

common areas.

Similarly, on November 2, 1995 the Board of Directors

unanimously amended Rule 9 to read:

SOLICITING, VENDING AND DEBT

COLLECTION. Soliciting gifts or

contributions of any kind, commercial soliciting

and unapproved vending of all kinds, display or

distribution of commercial advertising, or

collecting private debts in or about the Building

is prohibited.

STATEMENT OF THE CASE

A. An Introduction to the Chronology of Events.

The Building Authority is a municipal corporation

responsible for managing the City-County Building, which is

located in downtown Indianapolis. The City-County Building

is a public facility which houses the seats of government for

both Marion County and the City of Indianapolis. The

City-County Building is the focal point of city and county

government and includes for example, the offices of the

Assessor, Auditor, Clerk, Mayor, Prosecutor, Recorder, Sheriff,

Treasurer, and dozens of criminal, civil and juvenile courts. In

total, sixty-eight (68) governmental tenants occupy the

building.

Historically, the requests approved by the Building

Authonity to use the lobby of the City-County Building fell into

three categories: (1) private use; (2) governmental tenant

endorsement of a private use; and (3) use by a governmental

tenant for a government purpose. Among these displays was

Rabbi Grossbaum’s menorah which was placed in the lobby

each year during Chanukah from 1985 to 1992.

Over the past decade, the Building Authority has

become increasingly aware of and concerned over the security

of the building and the ability of visitors and tenant employees

to safely and efficiently enter and leave the building. During

the late 1980°s and early 1990’s, a rise in the number of

security related incidents increased the need for developing a

means by which to adequately secure the building. Certain

tenants’ requests for increased security necessarily focused the

Building Authority’s attention on the use of the lobby and the

traffic flow therein.

When, in 1992, the Indiana Civil Liberties Union

(“ICLU") suggested to the Building Authority that it "open the

lobby" and create a public forum to allow unlimited private

discourse, the Building Authority responded by considering the

regulations concerning the use of the lobby. Specifically

rejecting the notion of a public forum as suggested by the

ICLU, but in an effort to address the constitutional concerns

raised by both the ICLU and the Jewish Community Relations

Council ("JCRC"), the Building Authority, in October of 1993,

took what it believed was an appropnate step in achieving

those ends. It enacted a new display policy, a constitutional

middle-ground, in which the Board attempted to accommodate

—

the needs of the tenants and their tenant sponsored activities,

while at the same time addressing the Establishment Clause

issues raised by the ICLU and the JCRC.

Based on this 1993 policy, the Building Authority

denied Rabbi Grossbaum’s request to display a menorah in the

lobby of the City-County Building in 1993 and 1994. It was

the 1993 policy that the Seventh Circuit found facially

unconstitutional in August of 1995. See Grossbaum vy

Indianapolis-Marion County Building Authority, 63 F.3d 581

(7th Cir. 1995).

Beginning in 1993, well prior to the initiation of any

litigation between the parties, and continuing during the

pendency of the first appeal concerning the facial

constitutionality of the 1993 policy, the General Manager of

the Building Authority discussed with counsel the need for a

comprehensive policy or set of policies to address the security

changes and access concerns. The conclusion reached in the

spring of 1995 was to recommend that the Board close the

forum completely regardless of the outcome of the then

pending appeal relating to the facial constitutionality of the

1993 policy. On the advice of counsel, however, the Building

Authority did not take any action on amending its regulations

until the Seventh Circuit ruled on the appeal relating to the

1993 policy, in order to avoid the impression that the Building

Authority was trying to circumvent an order from the Seventh

Circuit enjoining the enforcement of the 1993 policy during the

appeal.

In addition, in June of 1995, after years of debating the

relative merits of several different proposals (among the

Building Authority, the Judges, the Mayor and other City and

County tenants) for increasing security at the City-County

Building, the City-County Council appropriated the necessary

funds for the first of what is likely to be several steps towards

totally securing the building. The Building Authonty knew

that the measures for which monies were appropriated in June

of 1995 would significantly increase congestion in the already

congested lobby. The Building Authority also knew that

further security measures likely to be adopted in the future

would only make the situation worse.

On August 15, 1995, the Seventh Circuit held that the

1993 policy was facially unconstitutional because it prohibited

only those seasonal displays which expressed a religious

perspective while allowing seasonal displays which were

secular in nature. Grossbaum v. Indianapolis-Marion County

Building Authority, 63 F.3d 581 (7th Cir. 1995). On October

2, 1995 and November 5, 1995, the Board adopted amendments

and restatements to three (3) of the Building Authority’s Rules

and Regulations to close the forum and prohibit all private uses

of the lobby of the City-County Building. The enactment of

this total ban in October and November of 1995 is what now

brings the parties before this Court.

B. The Historical Problem of Congestion in the

City-County Building.

The City-County Building is an active place which,

since at least 1985, has been "under-elevatored". In 1985 the

Building Authority hired a consultant to evaluate the elevator

problem. The findings of the study confirmed the Building

Authority's observations; the elevators cannot handle the

traffic of the building. The effect of the under-elevatored

problem is that large groups of people are frequently waiting in

and around the first floor elevator area (adjacent to the lobby)

to get an elevator. Congestion in the first floor lobby area is

and always has been a concern of the Building Authority and

its tenants.

.. The Concern Over Security in the City-County

Building.

The City-County Building is also a relatively dangerous

place. For example, during the one year period from January

4, 1993 to January 4, 1994 a total of 6,578 knives and 191 guns

were confiscated adjacent to a single courtroom in the

City-County Building. That particular courtroom is only one

of thirty-one (31) courts located in the City-County Building.

In addition to the guns and knives, the City-County

Building is a regular target of bomb threats. General Manager

Reifking testified that during his 19 years as a Building

Authority employee, he recalls "a couple of bomb threats per

year". With these types of concerns in mind the Building

Authority has advocated, since at least 1988, "totally securing”

the building by limiting public access to the building to certain

entrances and by placing walk-through metal detectors and

x-ray scanning devices at each such entrance.

After years of discussion, clear and definitive action

was finally taken in June of 1995. Money was appropriated to

place a metal detector and x-ray scanner in ihe open hallway

connecting the west wing to the center tower lobby area

(requiring anyone entering the west wing elevators to pass

through such equipment) and cutting off the ability to cross

over between the tower and the west wing above the first floor.

The Board recognized that this plan would have several

adverse effects upon congestion in the lobby area. The Board

further recognized that this plan was likely the first of several

steps towards totally securing the building.

D. The Building Authority’s Understanding of the

ICLU’s Complaint and its Reasons for Adopting the

October 1993 Policy.

Rabbi Grossbaum’s menorah was placed in the lobby

each year during Chanukah from 1985 to 1992. In December

of 1992 the Building Authority received a complaint from the

ICLU stating that the display of a menorah in the City-County

Building lobby violated the Establishment Clause. The ICLU

informed the Building Authority that it needed to designate the

lobby as a public or open forum. In fact, the ICLU even

submitted a proposed written policy to create such an open

forum.

The Building Authority’s concern at that time was not

focused on the menorah or any other particular display, but

instead was with the directive from the ICLU that the lobby be

designated an open or public forum.

FE. The Activity in the Lobby Following the Injunction

of the 1993 Policy.

On November 29, 1994, the Seventh Circuit enjoined

the Building Authority from enforcing the October 1993 policy

during the then pending appeal. During this time period,

several groups requested and were granted permission to place

displays in the lobby. Other groups made inquiries but did not

follow through on their requests. The requests were both

religious and non-religious in nature. The activities in the

lobby generated media coverage and the General Manager

spent a significant amount of time responding to and

monitoring the requests.

For example, the Building Authority received a request

from the Freedom From Religion Foundation to erect a display

to include the words "Jesus Christ Is A Myth: The Winter

9

Solstice Is The Reason for the Season". A request from a Mr.

Stephen Schroeder asked permission to erect a display to read

“Thou Shalt Have No Other Gods, Nor Display Their Images".

Ms. Tracy Eads requested permission to display a pentagram,

a five-pointed star celebrating the Wicca. Revetend Wayne T.

Harris requested permission to display a cross. An unnamed

person sent correspondence suggesting an intent to display a

phallic symbol. These events did cause a certain degree of

controversy.

F. The Three 1995 Policies at Issue and the Motive of

the Board Members Generally.

On October 2, 1995 the Board of Directors

unanimously amended and restated Rules 13 and 14 of the

Rules and Regulations Governing the City-County Building.

Similarly, on November 2, 1995 the Board of Directors

unanimously amended Rule 9.

The portion of the minutes of the October 2. 1995

meeting of the Board of Directors reflecting the discussion by

the Board members following a presentation by counsel and

prior to the motion and adoption of current Rules 13 and 14. is

as follows:

The Directors reaffirmed that the Authority is

responsible for assuring unobstructed and safe

access by employees and the general public to

the government offices and courts housed in the

building. The Directors observed that over the

past two years, new proposals for security

measures for the City-County Building have

been extensively reviewed and discussed

including their impact on pedestrian traffic flow

and ready-access by the public to the building.

From time to time, the Authority has been

10

asked by the City administration to find ways to

improve the flow of traffic and the accessibility

of government offices to the general public.

The Directors agreed that the new security

measures with the installation of metal

detectors and x-ray scanners will slow the flow

of traffic in the City-County Building and will

to some degree increase the flow of traffic in

the lobby of the Tower. The Directors also

acknowledged that the under-elevatored

condition of the building has placed a burden

on moving people traffic in the lobby of the

City-County Building. The Directors agree that

private displays and structures may impede the

flow of traffic and may create a public safety

risk. This is especially true with respect to

private displays and structures which are prone

to controversy, disruption and hostility. The

Directors concluded that for these reasons, the

use of the common areas of the building should

be restricted to the Authority and to City and

County tenants. Upon motion duly made and

seconded, the Board of Directors unanimously

approved the following resolutions: . . . .

G. The Timing of the Seventh Circuit’s Ruling and its

Effect on the Building Authority’s Actions

Thereafter.

General Manager Reinking testified that he began

discussions with counsel regarding a comprehensive set of

policies that would address all displays by private groups in

early 1993.

Mr. Reinking further testified that during the pendency

of the first appeal relating to the 1993 policy, he and legal

counsel reached the conclusion that a recommendation would

be made to the Board of Directors to ban all private displays

"for reasons of access, traffic movement, and the upcoming

security changes." Mr. Reinking further explained that he and

legal counsel agreed to make this recommendation regardless

of the outcome of the first appeal.

As for the precise timing, Mr. Reinking testified that

legal counsel advised him to wait until after the Seventh Circuit

ruled on the 1993 policy, to avoid the impression of "trying to

make an end run." Again, the Seventh Circuit had enjoined the

enforcement of the 1993 policy pending the appeal, and the

Building Authority sought to avoid any action that might be

construed as violating that order.

During this same time period the Board of Directors

continued to reject any notion of a open forum. For example,

the minutes from a Board meeting in December of 1993 reflect

that the Board "agreed that no display or act should be

permitted in the lobby of the City-County Building which

would cause the lobby to be declared a ‘public forum".

Similarly, on December 6, 1994, the Directors passed a

resolution declaring and reaffirming their intention that "the

lobbies, corridors and other common areas of the City-County

Building are ‘non-public forums".

H. The Effect and Application of Amended Rules 9,13

and 14.

The amended rules closed the forum to all private uses.

By enacting a complete ban on all private displays in the lobby,

the Building Authority closed the lobby as a forum. Further,

“no one has even hinted that the rule has been or is being

applied unequally." 100 F.3d at 1296. No private displays

have been permitted since the forum was closed.

I. Correction of Misstatements of Fact and Law in the

Petition.

Pursuant to United States Supreme Court Rule 15:1,

respondents bring the following misstatements of fact and law

contained in the petition to the Court’s attention.

While understandably posturing this case as turning on

a question of law, the petitioners nonetheless mislead this

Court as to the Seventh Circuit’s factual conclusions. In the

question presented, petitioners mislead this Court by implying

that the Seventh Circuit concluded that the respondent

"deliberately" sought to exclude the speech of religious groups

based upon an illicit motive. (Petition at i). Similarly,

petitioners mislead this Court by stating that the Seventh

Circuit assumed arguendo that the respondents deliberately

sought to suppress the speech of the petitioners and intended to

retaliate against the petitioners. (Petition at 11). The Seventh

Circuit never made such an assumption. First, the Seventh

Circuit noted that the district court examined more than 900

pages of documentary evidence. 100 F.3d at 1299. These 900

pages consist of approximately 500 pages of deposition

testimony from the five Board members, the General Manager,

and the General Manager’s Assistant and over 400 pages of

stipulations of fact and documents describing ad nauseam the

Building Authority’s actions over the past decade. The district

court concluded that "the evidence does not indicate that the

defendants have ever had any hostility or religious-based

animus against the plaintiffs". 909 F.Supp. at 1205. With

regard to this conclusion, the Seventh Circuit expressly stated

that the "District Court found a number of reasonable

justifications for the new Rule 13 . . . and all are well within the

bounds of what rational basis scrutiny permits." 100 F.3d at

1299. Finally, contrary to petitioners’ assertion that the

Seventh Circuit assumed that respondents had an illicit motive,

the Seventh Circuit characterized petitioners’ efforts at trying

13

to prove an illicit motive as nothing more than "fishing for an

inculpatory admission". /d.

Apparently in an effort to lend credibility to the

misstatement as to what the Seventh Circuit assumed about the

motives of the Building Authority, the petitioners also misstate

or are less than forthcoming in their statements of certain

pertinent facts. For example, the petitioners state that both the

ICLU and the JCRC demanded that the Building Authority

prohibit religious displays in the lobby of the City-County

Building. (Petition at 3). The JCRC did urge the Building

Authority to develop a policy that would not permit religious

displays. However, the ICLU, far from "demand[ing] that the

Authority totally prohibit religious displays in the Building"

(Petition at 3), urged the Building Authority to designate the

lobby as a public forum. In fact the ICLU delivered a draft of

an express policy creating such an open forum. Similarly, after

listing the various private displays that were placed in the

lobby in December of 1995, the petitioners note that a

Christmas tree was displayed in the lobby. (Petition at 5).

What they fail to tell this Court, however, is that the Christmas

tree was owned and erected by the Building Authority and,

therefore, was not a private display. Finally, petitioners state

that in denying Rabbi Grossbaum’s request to display his

menorah, General Manager Reinking failed to tell Rabbi

Grossbaum that Rule 13 had been amended on the preceding

day. (Petition at 9). What petitioners fail to tell this Court is

that Mr. Reinking enclosed a copy of the new Rule 13 in the

October 3, 1995 letter to Rabbi Grossbaum advising of the

denial.

Additionally, petitioners misstate the holding of the

Seventh Circuit in several material respects. First, petitioners

claim in two instances that the Seventh Circuit "acknowledged"

14

that its holding conflicts with this Court’s decisions in

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,

473 U.S. 788 (1985) and Perry Educ. Ass'n. v. Perry Local

Educators Ass'n., 400 U.S. 37 (1983). (Petition at 11,12). As

will be discussed more fully infra, the Seventh Circuit

distinguished the Cornelius and Perry decisions. "Nonetheless,

we view the present case as distinguishable from these prior

precedents because the Court never considered a

content-neutral speech restriction like Rule 13 [i.e. - a complete

ban]. Rather, the Court’s concern about motivation arose only

in cases where the Court was considering speech restrictions

that explicitly discriminated on the basis of content." 100 F.3d

at 1298.

SUMMARY OF THE ARGUMENT

Respondents’ argument is based on the fundamental

difference between a policy that bans all private speech in a

nonpublic forum, and a policy that merely restricts certain

private speech (i.e. - allows some speakers but precludes

others) in a nonpublic forum, albeit on a content-neutral basis.

Courts properly look to intent to determine whether a

content-neutral policy restricting certain speech is in reality a

facade for viewpoint discrimination. In order for a policy to be

a facade for viewpoint discrimination, however, there must first

be discrimination; which means some speakers or viewpoints

must be disadvantaged relative to other speakers or viewpoints.

When the government bans all private speech in a forum, there

is and can be no discrimination because no speaker is

disadvantaged relative to another speaker. Thus, intent is

irrelevant when the government bans all private speech in a

nonpublic forum.

~

15

REASONS FOR DENYING THE WRIT

I.

THE DECISION BELOW DOES NOT CONFLICT

WITH THE DECISIONS OF THIS COURT.

First, contrary to petitioners’ assertion and as clarified

supra, the Seventh Circuit did not acknowledge that its ruling

was inconsistent with this Court’s prior rulings. Rather, the

Seventh Circuit correctly recognized the fundamental

difference between: (1) a policy that bans all private speech:

and (2) a policy that allows some private speakers, but

prohibits others, on a content-neutral basis.

The fulcrum of the petition is Cornelius v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985). In

Cornelius, the Combined Federal Campaign ("Campaign") was

a nonpublic forum. The Executive Order at issue allowed

certain voluntary, tax-exempt, nonprofit charitable agencies to

participate in the Campaign, but specifically excluded legal

defense and political advocacy organizations. In other words,

some private speakers were allowed to express themselves in

the forum, while others were not. Although the basis for the

restriction on access appeared reasonable, this Court expressly

declined to decide whether the regulation was in reality a

facade for an impermissibly motivated desire to suppress a

particular point of view, and respondents were allowed to

pursue this contention on remand. 473 U.S. at 812.

As the Seventh Circuit in this case explained, when

some are allowed access to speak while others are excluded

(even on an ostensibly content-neutral basis), it is appropriate

for the Court to examine the intent of the government body to

determine whether the policy is in reality a facade for

viewpoint based discrimination. 100 F.3d at 1298. To state the

16

obvious, a facade for discrimination requires that there be

discrimination; and discrimination necessarily requires that

some speakers be disadvantaged (i.e. - denied access to the

forum) relative to others (i.e. - allowed access to the forum).

Thus, when some speakers are granted access while others are

excluded, motive is relevant.

In this case, conversely, the Building Authority's

policies ban all private displays. The forum has been closed.

There is and can be no discrimination because no speaker is

disadvantaged relative to another speaker. All speakers

"receive the exact same treatment". 100 F.3d at 1298.

Accordingly, there can be no facade and motive is irrelevant.

Petitioners either fail to recognize or choose to ignore

this fundamental difference between banning ail speech and

restricting certain subjects on a content-neutral basis. Instead.

petitioners distort and misconstrue the Seventh Circuit’s use of

the term "content-neutral". Whereas the Seventh Circuit used

the term in the context of a complete ban on all private displays

in a nonpublic forum, petitioners have attempted to apply

reasoning from cases that use the term in the context of policies

that restrict access to certain speakers or subjects and cases that

are unrelated to fora analysis. Accordingly, none of the cases

decided by this Court that are cited in the petition are on point.

See, Perry Educ. Ass'n v. Perry Local Educators Ass'n.

460 U.S. 37 (1983) (representative union allowed access to

teachers’ internal mail system, while rival unions were not).

The "flag burning" cases and Turner Broadcasting

System, Inc. v. FCC, 114 S.Ct. 2445 (1994) cited by petitioners

do not even involve fora analysis, let alone a complete ban on

all private speech in a nonpublic forum. In each of these cases

access to a forum was not an issue as the speaker had a general

nght to speak in the subject forum. The issue was whether the

particular content or manner of speech was allowable. In the

17

present case, the issue relates to one’s right of access to the

forum in the first instance.

The issue in each of the "religion cases" cited by

petitioners was whether the questioned governmental action

violated the Establishment Clause because it lacked a secular

purpose. See Lemon v. Kurtzman, 403 U.S. 602 (1971):

Wallace v. Jaffree, 472 US. 38 (1985); and Edwards vy

Aguillard, 482 U.S. 578 (1987). The Seventh Circuit’s opinion

in this case, conversely, is expressly limited to whether motive

is relevant when a ban on all private displays in a nonpublic

forum is challenged on viewpoint and retaliation bases.

Finally, with little or no analysis petitioners lift a quote

from City Council vy. Taxpayers for Vincent, 466 U.S. 789

(1984). (Petition at 14). In the very next sentence following

the language quoted by petitioners this Court states:

The general principle that has emerged from

this line of cases is that the First Amendment

forbids the government to regulate speech in

ways that favor some viewpoints or ideas at the

expense of others.

466 U.S. at 804. This is precisely respondents’ argument. As

opposed to a policy that "regulate[s] speech", a complete ban

does not "favor some viewpoints or ideas at the expense of

others".

As the Seventh Circuit explained, the most pertinent

guidance from this Court as to whether motive should be

examined to determine whether viewpoint discrimination exists

when all private displays are banned, comes from Capitol

Square Review and Advisory Board v. Pinette, 115 S.Ct. 2440

(1995):

18

Eight members of the Court joined behind the

proposition that the State of Ohio ‘could ban all

unattended private displays in [the forum] if it

so desired.’ Capitol Square, _=_—s«U.S.at——_|

115 S. Ct. at 2457 (Souter, J., concurring in part

and concurring in the judgment); see a/so id. at

—_, LIS S. Ct. at 2446; id. at |

115 S. Ct. at 2467-68 (Stevens, J., dissenting)

["Today the Court correctly recognizes that a

State may impose a ban on all private

unattended displays in such a forum']. This

proposed course of action would seem

impossible, however, if Ohio’s undisputed

desire to keep the Klan off of government

property would be sufficient to establish

viewpoint discrimination. And if eight justices

thought Ohio was free. even after it had

discriminated against the Klan, to ban all

private displays in a public forum, then the

Building Authority a fortiori should have the

same freedom to prohibit all private displays in

its nonpublic forum.

100 F.3d at 1298-1299.

Il.

THE DECISION BELOW DOES NOT CONFLICT

WITH THE RULINGS OF OTHER CIRCUITS.

Again, petitioners either fail to appreciate or choose to

ignore the difference between a complete ban and restricting

access to some, while allowing others to speak. In Searcey v.

Harris, 888 F.2d 1314 (11th Cir. 1989), the school board

generally allowed community members to participate in Youth

Motivation Day and Career Day programs, but sought to

19

restrict or deny access to such forums to the Atlanta Peace

Alliance. Similarly in Texas v. Knights of the Ku Klux Klan,

58 F.3d 1075 (Sth Cir. 1995), the State was attempting to

restrict the access of one group to a forum that was open to

others. As explained supra, when one speaker is disadvantaged

relative to other speakers, even pursuant to a content-neutral

policy, there is a legitimate concern that the policy may be a

facade for viewpoint discrimination and thus. motive is

relevant. In the case of a complete ban, however. there is no

such disparate treatment, and no need to inquire into motive.

Finally, Daniel v. Tampa, 38 F.3d 546 (11th Cir. 1994),

focused on the application of the policy, not its enactment. As

the Seventh Circuit clearly explained, its holding that motive

is irrelevant is limited to challenges to enactment (versus

application) of a policy.

THE DECISION BELOW IS LIMITED TO THE

FACTS OF THIS CASE.

Contrary to petitioners’ assertion, the opinion by the

Seventh Circuit is not "novel", "revolutionary", does not have

"very broad ramifications" and does not affect the exercise of

consttutional rights "under the Fourth, Fifth, Sixth. Fourteenth

and Fifteenth Amendments”. (Petition. p. 11).

After generally addressing the relevance of motive in

constitutional adjudication, the Seventh Circuit concluded:

In short, the relevance of motive to

constitutional adjudication varies by context.

No automatic cause of action exists whenever

allegations of unconstitutional intent can be

made, but courts will investigate motive when

precedent, text, and prudential considerations

rr

20

suggest it necessary in order to give full effect

to the constitutional provision at issue.

100 F.3d at 1294. ai

After reviewing the specific facts and law applicable to

this case, the Seventh Circuit held:

Returning to the specifics of this case,

Rule 13 is unequivocally a prospective and

generally applicable rule because it bans all

private displays henceforth. Furthermore, no

one has even hinted that the rule has been or is

being applied unequally. Lubavitch therefore

has not stated facts sufficient for a retaliation

clam. To hold otherwise would be a

significant expansion of retaliation doctrine and

would encourage only litigiousness and

governmental paralysis.

100 F.3d at 1296.

With respect to petitioners’ viewpoint claim, the

Seventh Circuit held that the Building Authority’s policy

prohibiting "all private displays in its nonpublic forum" passed

“constitutional muster regardless of motive". 100 F.3d at 1299

Finally, with respect to the reasonableness of Rule 13 the

Seventh Circuit held that the "District Court found a number of

reasonable justifications for the new Rule 13, 909 F.Supp. at

1205, 1207, 1209-10, and all are well within the bounds of

what rational basis scrutiny permits”. /d.

Thus, the Seventh Circuit’s decision is limited to the

specific facts, and the law as applied thereto, of this case.

21

CONCLUSION

For all the reasons stated herein, the petition for writ of

certiorari should be denied.

Respectfully submitted,

THOMAS J. COSTAKIS

Counsel of Record for Respondents

KRIEG DeVAULT ALEXANDER & CAPEHART

Suite 2800, One Indiana Square

Indianapolis, Indiana 46204-2017

(317) 636-4341