FFRF wins censorship challenge in Texas (January 27, 2023)


The Freedom From Religion Foundation filed a federal lawsuit on February 25, 2016, challenging the remove of its approved Bill of Rights “nativity” display from the Texas State Capitol by Texas Governor Greg Abbott. FFRF had a permit and a legislative sponsor for its display. Abbott, as chair of the Texas State Preservation Board, ordered the display taken down only three days after it was erected on Dec. 18, 2015, lambasting it as indecent and mocking and contributing to public immorality.

The whimsical exhibit, designed by artist Jake Fortin, commemorates the “birth” of the Bill of Rights (which was adopted on Dec. 15, 1791), depicts the founding fathers and the Statue of Liberty crowded adoringly around a manger scene containing the constitutional document. FFRF placed the display to counter a Christian nativity display placed at the Capitol in 2014 and 2015. The display also featured a sign celebrating the Winter Solstice.

On October 13, 2017, Judge Sam Sparks ruled that the State Preservation Board violated FFRF’s free speech rights when it removed FFRF’s display from the Capitol as a matter of law. FFRF then voluntarily dismissed its other, unresolved claims in order to secure a final judgment against Governor Abbott and the Board, which was entered on June 19, 2018.

Abbott appealed the district court’s ruling to the 5th Circuit in July 2018, where he argued that the district court entered an impermissible declaration that doesn’t properly constrain the Board’s future conduct. Abbott did not challenge the district court’s ruling that he and the Board engaged in viewpoint discrimination by removing FFRF’s display. FFRF filed a cross-appeal, arguing that it is entitled to an injunction and that the Board’s “public purpose” requirement is unconstitutional on its face.

In April 2020 a three-judge panel of the 5th Circuit Court of Appeals released a unanimous opinion in favor of FFRF. This judgment remanded the case to the Western District of Texas, who previously ruled in FFRF’s favor, in order to fashion a more comprehensive remedy that would prevent future censorship.

On remand, Gov. Abbott and the board employed a new tactic to try to nullify the lawsuit. Two weeks before the parties’ briefs were due to the district court, the board made slight adjustments to its exhibit policies, including a dubious declaration that all future exhibits in the Capitol would be considered “government speech.” In its subsequent briefing to the district court, FFRF successfully argued that these surface-level changes did not alter the true nature of the forum for citizen speech in the Texas Capitol.

In May 2021 FFRF was granted permanent relief after a six-year battle. Judge Lee Yeakel rejected Gov. Abbott’s argument that FFRF’s lawsuit no longer involved a live controversy and that the case was thus moot. The court declared that Gov. Abbott and the State Preservation Board violate FFRF’s First Amendment Rights and engage in viewpoint discrimination when they exclude the exhibit from display. The district court also enjoined Abbott and the board from censoring FFRF’s speech in the future. Governor Abbott and the State Preservation Board appealed the ruling on remand back to the Fifth Circuit. 

On January 27, 2023 the 5th Circuit unanimously ruled in FFRF’s favor. The decision was written by Circuit Judge Jennifer Walker Elrod, with Chief Judge Priscilla Richman and Judge Patrick Higginbotham joining. The appeals decision concluded that this latest amendment has effectively closed the Texas Capitol as a forum for private speech. For this reason, the appeals court reversed one aspect of the district court’s judgment, eliminating its order for injunctive relief. The appeals court, however, also rejected the government’s contention that it had converted the capitol into a venue solely for government speech. For this reason, the court warned the state that closing its forum in the Texas Capitol does not mean the state has free rein to discriminate when displaying exhibits in the future.

The case will now return to the district court for resolution of FFRF’s outstanding claim for attorneys’ fees and costs. The court of appeals made clear in its ruling that its decision does not foreclose FFRF’s claim to recover its costs and fees.

FFRF is represented by Associate Counsel Sam Grover and Senior Counsel Patrick Elliott in the case, with attorney Rich Bolton of Boardman and Clark LLP serving as litigation counsel. The District Court case number is 1:16-cv-00233 and the current Appeals Court number is 21-50469.

Documents on Appeal

Documents on Remand

Documents on Second Appeal

Freedom From Religion Foundation