First Amendment prohibits heckler’s — or governor’s — veto

1BillofRightsNativityThe Freedom From Religion Foundation’s closing brief in its federal lawsuit, FFRF v. Gov. Greg Abbott, does not mince words.

“This case is foremost about the conceit of the censor and the braying of a bully,” it says, referring to the Texas governor.

Abbott “banished” FFRF’s Bill of Rights Winter Solstice display, intended to counter a nativity display at the Texas Statehouse last December, “due to its content and viewpoint.” FFRF compared the governor’s actions to an impermissible “heckler’s veto.”

Abbott, FFRF contends, has the “mistaken view that the First Amendment does not protect private speech on government property if the governor considers it to be offensive to the sensibilities of Christians.”

FFRF filed its brief on Aug. 19 seeking summary judgment in its favor before U.S. District Judge Sam Sparks in the Western District of Texas. Abbott and the State Preservation Board, the defendants, also filed a motion for summary judgment late last week and both parties will have the opportunity to file a final rebuttal on Sept. 19 before the district court makes its ruling on the motions. 

The Freedom From Religion Foundation, a state/church watchdog organization serving as an association of freethinkers (atheists and agnostics), has 24,000 members nationwide and almost 1,000 in Texas. It filed its challenge in February.

FFRF’s whimsical Winter Solstice exhibit commemorates the “birth” of the Bill of Rights on Dec. 15, 1791, depicting the Founding Fathers and the Statue of Liberty crowded adoringly around a manger scene containing the foundational document.

Abbott called FFRF’s exhibit indecent and mocking, antithetical to public immorality, said it had no educational purpose and compared it to a controversial 1980s photo showing a plastic crucifix in a jar of urine.

In his brief on behalf of FFRF, attorney Richard L. Bolton noted that Abbott never ordered removal of the nativity display as “offensive to, or exclusionary of, nonbelievers, agnostics, atheists, and non-Christians.” By contrast, “Acting with autocratic impunity, the governor ordered FFRF’s exhibit immediately removed from the Capitol, despite preapproval by the Texas State Preservation Board. This the governor cannot do.”

FFRF points out the case does not involve a state message and the government’s right to control that message. “Instead, this case is about censorship and exclusion of viewpoints from a public forum based on the personal disapproval of individual government officials,” it says. Yet, “The First Amendment to the United States Constitution undeniably prohibits content and viewpoint discrimination by government officials.”

The organization’s legal complaint details a “history of hostility directed against FFRF” by Abbott when he was the state attorney general. For instance, Abbott told Fox News in December 2011 that FFRF should keep out of Texas, stating: “Our message to the atheists is: Don’t mess with Texas or our nativity scenes or the Ten Commandments.” In 2012, Abbott again attacked FFRF during a press conference: “We will not allow atheist groups from outside of the state of Texas to come into the state to use menacing and misleading intimidation tactics to try to bully schools to bow down at the altar of secular beliefs.”

As governor, Abbott has continued this pattern, assailing FFRF for asking the Brewster County’s Sheriff’s Office to remove crosses from patrol vehicles. FFRF handily won its federal lawsuit against Brewster County earlier this year, when the county settled the case by removing the crosses and covering FFRF’s legal expenses. 

FFRF Staff Attorneys Sam Grover and Patrick Elliott serve as co-counsel in the Bill of Rights lawsuit.

Freedom From Religion Foundation

Send this to a friend