Heckler's Veto" Against Unbelievers Turns Into Censorship of FFRF Billboard
The Freedom From Religion Foundation, which sued the City of Rancho Cucamonga, Calif., over censorship of its "Imagine No Religion" billboard, at a spot on Route 66 last November, is asking for a trial.
The Madison, Wis.-based Foundation, with about 2,200 members in California and 14,000 nationwide, says the city violated the Foundation's rights under the Establishment and Free Speech clauses of the First Amendment.
After taking a series of depositions from city officials and General Outdoor advertising, the Foundation has filed a memorandum and transcripts documenting the series of events leading to the censorship of the Foundation's billboard. The Foundation also submitted a signed declaration from local reporter Wendy Leung. The federal case is in the courtroom of U.S. District Judge Percy Anderson, Central District of California-Eastern Division.
The City phoned the billboard company to report the number of complaints it had received against the billboard. The City admitted that employee Donna Vega was directed to contact the billboard company to complain specifically because she was in charge of negotiating a deal lucrative for the billboard company. In fact, Ms. Vega explicitly referred to the business project in an e-mail of complaint over FFRF's billboard to General Outdoor.
The morning after the City contacted the billboard company, it took down the Foundation's billboard. The Foundation had a month-long contract, yet the board was removed after being up for less than a week. The City acknowledges its purpose in contacting General Outdoor Advertising was to see if the Foundation's billboard could be removed. Linda Daniels, Rancho Cucamonga development director, told Wendy Leung, a reporter for the Inland Valley Daily Bulletin, that the City "contacted the sign company and asked if there was a way to get it [the billboard] removed."
The legal memo notes that "the City's actions also are far less benign in motivation than the City implies." The Foundation has documented that the directive to contact General Outdoor Advertising "came from an unprecedented source," the City attorney, Jim Markman, who advises the city on First Amendment issues. Markman "tried to stage the City's objection to FFRF's controversial billboard in a way that would censor FFRF's message without the appearance of direct City involvement."
The City admits a policy of contacting businesses about complaints, including billboard companies. Once before, it was successful in getting a billboard company to censor a controversial billboard.
The city's averred "policy" of passing on complaints under these circumstances "has the effect of objectively chilling First Amendment rights," wrote Foundation attorney Rich Bolton, working with local counsel Robert A. Seeman.
". . . the City's policy, as applied to unpopular speech critical of religion, does give the appearance of endorsing a hecklers' veto over the views of nonbelievers. The City acted in response to the vitriol of callers expressing offense at FFRF's unholy message, even though the City knows that it cannot directly regulate or control speech, such as that propounded by FFRF. The City also knew that a call from the employee then negotiating a lucrative business deal with General Outdoor Advertising would likely elicit a response by the Company—and in the case of an unpopular expressive message such as that of FFRF, the response is likely to be censorship. In these circumstances, the reasonable and objective observer would perceive the City's action as one of religious endorsement. Even if the City did not subjectively intend to endorse religion, the appearance of giving FFRF's critics an insider's preference violates the Establishment Clause."
The memo adds:
"In the circumstances of this particular case, the City's initiative was intended to get FFRF's billboard removed because it offended persons supportive of religion. Intervening precisely because of the content of FFRF's billboard quintessentially sends a message of endorsement, and it conveys the impression that believers have more political pull than nonbelievers, which is apparently true in Rancho Cucamonga. That is exactly what the Establishment Clause prohibits."
The Foundation is contesting the City's request for summary judgment–in which the facts are agreed upon by both parties.
Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants' Motion for Summary Judgment
Plaintiff's Statement of Genuine Issues in Opposition to Defendants' Motion for Summary Judgment
Declaration of Richard L. Bolton
Declaration of Wendy Leung
Declaration of Annie Laurie Gaylor
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