William H. Rehnquist: We'll hear argument next in Number 94-780, Capitol Square Review and Advisory Board v. Vincent J. Pinette. Mr. Renner.
Michael J. Renner: Mr. Chief Justice, and may it please the Court: I will attempt to preserve several minutes for rebuttal. This Court today is faced with a factual pattern which requires the analysis of the friction that is created when two prongs of the First Amendment rub against each other. Ohio suggests that this Court adopt a workable rule that any purely religious display which is unattended and positioned at the very seat of Government should be considered as a violation of the Establishment Clause.
William H. Rehnquist: Mr. Renner, what do you mean when you say at the very seat of Government?
Michael J. Renner: Mr. Chief Justice, the seat of Government would be a building or structure from which the public realizes the power of Government does its work. This could be obviously a capital building, it could be a city hall, it could be a county courthouse, it could be a Federal building.
William H. Rehnquist: Would it have to be located, say, at least in a county seat?
Michael J. Renner: I am not aware... well, I don't think there are any... there would be Federal post office buildings that, for instance in cities other than county seats which--
William H. Rehnquist: So when you say the seat of Government, you're not talking about a geographical location of a capital or a county seat.
Michael J. Renner: --That's correct, Your Honor. We're talking about a facility which the reasonable observer, the public, the common man, would associate as being governmental in its authority and from which governmental activities are carried out.
William H. Rehnquist: Well, do you really mean, then, anything more than a Government building?
Michael J. Renner: Probably not, Your Honor. There are probably some Government buildings that are in rented office structures, for instance, and which the reasonable observer might not recognize the building as that of Government, in which case our rule would not carry the same weight.
Anthony M. Kennedy: Do you think the reasonable observer can conclude that petition and assembly are important activities to take place at the seat of Government, assuming that that is a valid legal category?
Michael J. Renner: Well, Justice Kennedy, the reasonable observer does understand that assemblies, demonstrations, speeches and rallies take place at the seat of Government frequently, yes.
Sandra Day O'Connor: And is the Capitol Square a public forum, in your view?
Michael J. Renner: Justice O'Connor, the Capitol Square has been recognized... certainly the State of Ohio's Capitol Square has been recognized as a public forum.
Sandra Day O'Connor: And do you accept that?
Michael J. Renner: We accept that it is a public forum, Your Honor, but if I could explain that just because it is a public forum doesn't mean that unattended displays are recognized as being anything other than a governmental display.
Sandra Day O'Connor: Well, now, as I understand it, at one time the board here had adopted a regulation saying that all displays on the square had to be attended by someone. Wasn't that the regulation?
Michael J. Renner: I believe there was--
Sandra Day O'Connor: No unattended displays permitted at the Christmas season?
Michael J. Renner: --Well, that's correct. I think the tenor of the resolution was there would be no displays at the Statehouse grounds, Your Honor.
Sandra Day O'Connor: And that would have been a content-neutral sort of a time, place, and manner regulation, I suppose.
Michael J. Renner: We would certainly believe that's correct, Your Honor.
Sandra Day O'Connor: And the board could certainly adopt that as a policy, couldn't it?
Michael J. Renner: That's correct.
Sandra Day O'Connor: And it also, I suppose, could designate a certain part of the Capitol Square where it would allow displays by different groups.
Michael J. Renner: That would be correct also, Your Honor.
Sandra Day O'Connor: And it hasn't attempted to do that.
Michael J. Renner: It didn't attempt to adopt that... it adopted the regulation you first suggested, but did not--
Sandra Day O'Connor: And then withdrew it.
Michael J. Renner: --adopt the regulation, the second--
Sandra Day O'Connor: Has the board permitted other groups to have displays in the Capitol Square area during the holiday season?
Michael J. Renner: --Yes. I guess I have to answer yes Your Honor, because the State itself has a holiday display. The State owns the holiday display. It owns the Christmas tree. As part of a previous holiday, several previous holiday displays, it has allowed the petition of one of the Jewish branches in the city to erect a menorah in conjunction with that holiday display.
Sandra Day O'Connor: And any other groups?
Michael J. Renner: The United Way at one time requested the State to have positioned in front of the State Capitol building a thermometer showing the progress of the United Way Campaign in the community, which the State readily approved.
Sandra Day O'Connor: And has the board denied access to Capitol Square to groups other than the KKK?
Michael J. Renner: Your Honor, other than the ones that you and I have just discussed, I'm not aware of any petitions for unattended displays on the Statehouse grounds.
Sandra Day O'Connor: One last question. I understand that the cross that was erected or proposed to be erected and in fact was by the KKK here had a disclaimer attached to it saying it was not a display of the Government.
Michael J. Renner: That's correct, Your Honor, and I believe there's a photograph attached to the documents presented to the Court of the disclaimer. It was of a cardboard nature which did receive immediate wind damage, but it was there.
Sandra Day O'Connor: And, of course, the board could have required other types of disclaimers on more permanent material if it chose, could it not?
Michael J. Renner: There is an infinite variety of potential disclaimers that could be employed. You're correct, Your Honor.
David H. Souter: Mr. Renner, one of the points that you make is that the court of appeals seem to have applied a rule that so long as the forum is public, and so long as the actual sponsor is private, that's the end of the matter, and I'm not sure that the court of appeals applied that rule. I'm looking at page A8 of the petition appendix, and on that page the court quotes from a prior case, refers to those two factors, but the quotation goes on to say, "Although these facts are not automatically determinative, recent precedent indicates that they should carry much more weight than the details of the display emphasized by the plaintiffs. " Now, I might very well agree with you that the manner in which the appearance of this display was analyzed was not a very nuanced treatment, but I also have difficulty in going as far as you would have us go and say that the court of appeals was just applying an automatic rule, public forum, private sponsor, end of issue, because it did say that these are not automatically determinative. Why should we find a legal error on the record that we have, including the court's opinion?
Michael J. Renner: Justice Souter, the reason that we believe that there was legal error in the Sixth Circuit is because, though there were various portions of the Sixth Circuit decision which address other factors... it even mentioned the enforcement analysis... the court still pronounced as its conclusion that any private speech in a public forum is permissible. It didn't say, any private speech which doesn't impact reasonable observers in a negative way or in a positive way with regard to their understanding of the religious nature. It didn't say, any private speech that's accompanied by a disclaimer. It just said, as its conclusion, that any private speech in a public forum is appropriate speech regardless of its content.
Antonin Scalia: Mr. Renner, could you... I'm not clear as to what kind of unattended displays were permitted under Ohio's law. Did they have to be related to Christmas or Hanukkah? It was only during the holiday season, I understand, but during that season, could the Libertarian Party have put up a display?
Michael J. Renner: Justice Scalia, the answer to that question is no. The display that was permitted at the Statehouse ground involved a long tradition of Ohio's owned and operated Christmas tree. Once various courts of this land, including our own Sixth Circuit, and some analysis by this Court in the Allegheny case, determined that a holiday display which included both a Christmas tree and the menorah was not a purely religious display but had a holiday connotation, Ohio followed that pronouncement and permitted the erection of the menorah.
Antonin Scalia: But there was that content limitation on unattended displays. The only unattended displays you were going to allow were those whose message pertained to the holidays, and none others.
Michael J. Renner: Well--
Antonin Scalia: Can you do that?
Michael J. Renner: --You're correct, Justice Scalia, the State, of course, which was making its decisions under the guidance of court determinations, had concluded that it would be an Establishment Clause violation to allow purely religious displays to be exhibited.
Antonin Scalia: I'm not talking about purely religious. I'm talking about anything else. Can you limit your permission for unattended displays to just those that have to do with the holiday season and for all other purposes no one can have an unattended display?
Michael J. Renner: Oh, I think not, Your Honor. If in fact displays are going to be permitted in the public forum, we think the State probably has the right to say, no displays may be presented.
Antonin Scalia: Yes.
Michael J. Renner: But if displays are going to be presented--
Antonin Scalia: Right.
Michael J. Renner: --then the free speech and equal access provisions would require us to provide them to all speech content.
Antonin Scalia: So the Libertarian Party could have put up an unattended display.
Michael J. Renner: That would be my under... as long as it were not purely religious, Your Honor.
Antonin Scalia: I see. Now, why wouldn't the State be worried that people would think the State was endorsing the Libertarian Party?
Michael J. Renner: They might be, Your Honor.
Antonin Scalia: But that's okay.
Michael J. Renner: Well, there's no proscription in the Constitution that the State may not be involved--
Antonin Scalia: The State can endorse the Libertarian Party?
Michael J. Renner: --I'm not aware of a restriction.
Antonin Scalia: If you want to be a real Ohioan you should support the Libertarian Party? They can say that?
Michael J. Renner: Well, I would hope that they wouldn't, Your Honor, but I don't think it's violation of the Establishment Clause.
Antonin Scalia: They really can support a particular political party officially and say you're not... you know you're not a patriotic Ohioan if you don't vote Libertarian?
Michael J. Renner: Well I--
Antonin Scalia: I wasn't aware of that.
Michael J. Renner: --Well, as I'm standing here, Your Honor, I'm trying to think of what proscription in the Constitution or the Bill of Rights which would proscribe that. It certainly would not be an Establishment Clause proscription.
Antonin Scalia: But you wouldn't worry... but in any case, you wouldn't worry about that being identified with the State--
Michael J. Renner: Well--
Antonin Scalia: --by allowing it up in front of the State building?
Michael J. Renner: --As the attorneys for the State of Ohio we would certainly want to review all other constitutional provisions and statutes.
Antonin Scalia: And if the Nazi Party did it I guess the legislature wouldn't worry about the Nazi Party display being associated with the State, would it?
Michael J. Renner: Your Honor, to say that they wouldn't worry about it would be disingenuous.
Antonin Scalia: Well, but they have this regulation that you say permits it.
Michael J. Renner: That's correct. The regulation would not... the regulation which we have advised the board to work under would not proscribe forms of speech other than those that violate the Establishment Clause.
Antonin Scalia: Whether it's lawful or not, I find it difficult to believe that the members of the Ohio Legislature wouldn't worry about the Nazi Party being associated with the State.
Michael J. Renner: I agree with that, Your Honor.
Antonin Scalia: And if they don't worry about it with the Nazi Party, I don't know why they would worry about it with the KKK or with a cross, or with a religious symbol. It just seems implausible to me that they are really worried about the State being identified with the messages that they're allowing to be put there. Why would they worry about it with religion and not with other things?
Michael J. Renner: Well, I hope that it would be because, Your Honor, that religion has a specific qualification in the First Amendment, and I would hope that the State worries about the things that their attorneys suggest that they worry--
Antonin Scalia: Well, I'm not worried about it whether it's... it is in the First Amendment, but you also have to establish a risk of identification, and if there's a real risk of identification, I doubt whether the Ohio Legislature would say, anybody with any sort of an unpleasant message can stick it up in front of our Statehouse. If they were really worried about identification, I doubt whether they'd do that.
Michael J. Renner: --Your Honor, I think I would agree with your analysis. As the record below indicates, the State did struggle considerably with the notion of allowing the Ku Klux Klan to rally or put up displays at the Statehouse, but they did permit them to rally.
John Paul Stevens: Mr. Renner, may I ask the other side of the coin from Justice Scalia's question? Do you understand the rule in the Sixth Circuit, which I guess there was a case arose in Michigan before this one, to make it necessary for the State to permit the Libertarian Party to put up a sign such as you describe if they want to?
Michael J. Renner: No, I don't understand it that way, Your Honor. I--
John Paul Stevens: You don't understand the court of... the rationale of the court of appeals to require that?
Michael J. Renner: --It would require that if in fact those forums of speeches were allowed to others.
John Paul Stevens: They said it's an open--
Michael J. Renner: I think the State of Ohio could proscribe all unattended displays, but I think once speech is opened up, the only way that the State of Ohio could forbid any speech is if it were a violation of some other constitutional provision.
William H. Rehnquist: --Well--
Michael J. Renner: And that's what we assert is the problem here in this case.
William H. Rehnquist: --Wasn't there testimony in the record here from a rabbi that said that a menorah was a religious symbol?
Michael J. Renner: There was, Your Honor, and he testified quite vehemently that it was a purely religious symbol, as viewed by members of his faith.
Ruth Bader Ginsburg: I take it your argument today is that the menorah would have to fall in the same category as the cross. Your opening statement was that no religious symbol, and yet Ohio itself made the distinction.
Michael J. Renner: It is correct, Justice Ginsburg, that Ohio made the distinction, but it was based on directives that Ohio felt had been provided to it by superior courts.
Ruth Bader Ginsburg: But do I take it from your opening statement at this argument that you have now reconsidered and you... I thought you said in the beginning of your argument that no religious symbol could be in front of a building that is identified with Government.
Michael J. Renner: That is our belief, Justice Ginsburg. We are still, however, living with a decision that, as we read the Allegheny County case, that says that the menoran is not a purely religious symbol.
William H. Rehnquist: Was that an opinion of the Court?
Michael J. Renner: It was in the opinion--
William H. Rehnquist: Did it command the votes of five justices?
Michael J. Renner: --I do not believe that it did, Your Honor. It was in the opinion of Justice Blackmun, who of course read the opinion for the Court, but I don't believe that section of it did command the five votes. It is, however, the guidance that the State of Ohio has worked with since it was rendered.
Anthony M. Kennedy: Does your theory ask us to presume what a reasonable observer would conclude? Do we have to make that as some sort of an empirical inquiry in all of these cases?
Michael J. Renner: Justice Kennedy, I don't believe it's necessary. I think that our result is achieved whether we use the analysis of the endorsement test and use the analysis of a reasonable observer, or if we use the analysis of Lee v. Weisman, in which there was an indirect, coercive effect because of the mandatory nature of subjecting the school students to the prayer. This is very much like that because the placement of this cross will automatically require many thousands of citizens to view this message, the message of the cross superimposed upon the State Capitol building, so--
Anthony M. Kennedy: But even if we stipulate, then, that most people, certainly most reasonable people, will not conclude that the State is sponsoring or hsa anything to do with this message, that the message is still prohibited, or the message must still be suppressed?
Michael J. Renner: --If it were a fact that nobody, or no reasonable people would associate the State of Ohio--
Anthony M. Kennedy: Well, we usually in the law talk about a reasonable observer for a starting point, and I'm asking you if your theory doesn't require us to assume that a reasonable observer would attribute this message to the sponsorship of the State.
Michael J. Renner: --I'm saying, Justice Kennedy, I don't think it requires that analysis. I think... I think that analysis supports the result we urge upon the Court, because we think that a reasonable observer under these circumstances, with a message as powerful as that of an unattended cross in the presence of the State Capitol building, that there would be countless reasonable observers who would be connecting those two images--
Anthony M. Kennedy: But if this is not a part--
Michael J. Renner: --but it doesn't require that.
Anthony M. Kennedy: --Well, then we must assume that under your theory even if a reasonable observer would not attribute this message to the State, the State still is required to suppress it.
Michael J. Renner: The answer to that question, I think, Your Honor, lies in the decision of Lee v. Weisman in which the reasonable observer analysis was not required either, but--
Anthony M. Kennedy: But that was different, because the whole assumption there was that the State was sponsoring the message, and that's not this case at all.
Michael J. Renner: --Well, I would invite the Court to consider the parallels, because it was in that case, after all, private speech that was rendered by the rabbi that was in question.
Anthony M. Kennedy: But that wasn't the assumption of the opinion. The assumption of the opinion was that it was State-sponsored.
Michael J. Renner: Well, I think the Court concluded it was State-sponsored by some fact patterns that connected the rabbi with the message, and with the school system in that case, that the rabbi was invited by the school system to give the benediction and the invocation.
Anthony M. Kennedy: But that hasn't occurred here.
Michael J. Renner: It has not, but I also do not believe, Your Honor, that Lee v. Weisman would have turned on a situation in which the rabbi called up the school and said that my daughter's graduating, may I present the invocation for the school system. In other words, if there was--
Anthony M. Kennedy: Was there any indication in Lee v. Weisman that a graduation is a public forum?
Michael J. Renner: --Well, there is none, and we would suggest--
Anthony M. Kennedy: And haven't you conceded that this is a public forum?
Michael J. Renner: --We have conceded that it is a public forum for speeches and discussions. We would emphasize to the Court that there is no history of private use of this plot of ground in front of the State Capitol building for attended... unattended displays other than those which were approved and supported by the State government.
David H. Souter: Well, are you then saying that the reasonable observer test is passed here, or are you... as distinct from saying that it need not be applied?
Michael J. Renner: Oh, I think if we apply the reasonable observer test, which we encourage this Court to do, we would have to conclude that when we have a message as powerful as the cross, placed in front of a building that's recognizable as the State government--
David H. Souter: You're saying it meets the test.
Michael J. Renner: --That's right. Well, it meets--
David H. Souter: But you're not saying that the test is irrelevant to the decision of the case.
Michael J. Renner: --No, I'm not, Your Honor. I'm saying that the rule that we suggest that the Court adopt, whether the Court were to apply the endorsement analysis or were to apply the indirect coercion analysis, the fact patterns would result in this conclusion.
William H. Rehnquist: What would the reasonable observer be expected to know? Would the reasonable observer be expected to know everything that had been displayed, say for the last 12 months, the last 5 years?
Michael J. Renner: No, obviously not, Mr. Chief Justice. The reasonable observer, in fact, contrary to what was said in the Sixth Circuit, that a reasonable observer knows all relevant facts, we submit that a reasonable observer is a common man, an average man that is not either a hypothetical dolt, as suggested in the Sixth Circuit, or one that--
Sandra Day O'Connor: Does a reasonable person know how to read, though, do you suppose?
Michael J. Renner: --I think most of them certainly would.
Sandra Day O'Connor: I would think so, and they can read the disclaimer, can they not?
Michael J. Renner: They can read the disclaimer if, Justice O'Connor, they're close enough to assemble to be able to see the disclaimer.
Sandra Day O'Connor: I just think your argument is so farfetched it's just hard to bring it down to reality, to the real world. Here is this thing with a sign that says, this isn't Government sponsored--
Michael J. Renner: Well--
Sandra Day O'Connor: --and the board has every power to protect itself by any reasonable regulation, and yet it comes here arguing for this remarkable proposition to suppress speech in a discriminatory fashion. I just think your argument falls short of what this Court's cases have required.
Michael J. Renner: --If I may, Justice O'Connor, discuss the notion of the reasonable observer who can read and, under the fact patterns of this case, what we have is a 10-foot high cross displayed in the middle of the Statehouse grounds surrounded by 8 to 10 25-story or higher buildings from which people can observe this scene of the Statehouse and the cross at distances far greater than they are capable of reading any disclaimer. This--
Ruth Bader Ginsburg: Mr. Renner, can you clarify, because the record at one point refers to this as a 10-acre area, and in another place it's just one block. What are we talking about? What is this area, and how close is the association? How close are these symbols?
Michael J. Renner: --Your Honor, I will try to describe this as visually as I can paint with words. The Capitol Square is nearly a square parcel of land. It comprises a total of approximately 10 acres. A large portion of that is consumed directly in the middle by the State Capitol building of the State of Ohio. Directly to its east, on the eastern portion, is what is called an annex, or now the Senate office building, which is connected to that and uses up most of the ground to the east of the building. To the west of the building is the front of the Capitol. It faces the main street in the City of Columbus, and it is probably 500 feet in width and probably 300 feet from the street to the Capitol building. It is this location that the government has used to display all of its unattended displays. That's where our statues are, where our flags are, where our unattended messages from the government of the State of Ohio are positioned, and it is in this area, in a grassy portion... there are several quadrants surrounded by sidewalks, grassy portions of this plaza. In the middle of one of those grassy portions is where the cross was placed.
William H. Rehnquist: How far was it from high street?
Michael J. Renner: Approximately 100 feet, Your Honor.
David H. Souter: Mr. Renner-- --Are you arguing... and I hadn't perceived this before... that because the government has in the past customarily used this area to display its messages, therefore a reasonable observer would say if the message is displayed there, it must be the government's? If so, what are the other messages that... or displays that the government has placed there that would lead to that inference?
Michael J. Renner: Well, Your Honor, first of all I would refer to unattended displays that were put up there on a temporary basis, such as the United Way thermometer.
David H. Souter: Well, you mentioned such as, and I don't mean to be picky, but do we get beyond such as?
Michael J. Renner: We don't.
David H. Souter: The thermometer always comes up, but is there anything else? [Laughter]
Michael J. Renner: We don't get beyond it, Your Honor. The history of unattended displays here includes those permanently displayed by the government. The United Way--
David H. Souter: Well, it means the Christmas tree, it means the thermometer, and I guess after Allegheny it means the menorah next to the Christmas tree.
Michael J. Renner: --That is correct, Your Honor.
David H. Souter: And the menorah may or may not be identified with the Government--
Michael J. Renner: And that--
David H. Souter: --but do we have any other factual premises from which to draw that?
Michael J. Renner: --We do not, and if I might add, the one testimony that we have in the record of a witness called by the respondents indicated that when he viewed the thermometer, he viewed this as government support for the thermometer. Our premise is that in this context, in this location which is so predominantly historically a place where government displays its messages, that a reasonable observer will understand a message to be related to--
William H. Rehnquist: How does the menorah fare under your reasonable observer test?
Michael J. Renner: --The menorah has been suggested to us by courts of previous jurisdiction--
William H. Rehnquist: Under your... not what some plurality opinion of this Court might say, but under the reasonable observer test.
Michael J. Renner: --Well, under the reasonable observer test, we find it hard to believe that there would be very many reasonable observers who would think that a menorah is anything other than a purely religious symbol.
William H. Rehnquist: Nonetheless, the board approved it.
Michael J. Renner: The board approved it, Your Honor, as described before, based on the previous--
Anthony M. Kennedy: Is it your position a reasonable observer would think it's a religious symbol sponsored by the State?
Michael J. Renner: --Well, we think that it has such a favored location on a prominent position of governmental property that the only conclusion that a reasonable observer would have is that it's approved and supported--
John Paul Stevens: Mr. Renner--
Michael J. Renner: --by the government.
John Paul Stevens: --May I ask you one question... excuse me. I just want to... is it your position that you can permit the menorah while denying the cross?
Michael J. Renner: That's not our position, Your Honor.
John Paul Stevens: Well, that's what it seemed to be, and I just wanted to be sure it wasn't.
Michael J. Renner: No. Our position is that we have permitted the menorah based on helpful suggestions that have been previously rendered-- [Laughter] --that the menorah is not purely religious.
Antonin Scalia: Mr. Renner, there's just something that's inconsistent with the defense that Ohio comes up with. You're here representing Ohio, you're an assistant attorney general for Ohio, and you're saying, this is a terrible thing if somebody puts up a sign in this location people will think that it represents the views of the State, but it's the State that has invited people to put up signs here. If you really were worried about people confusing private messages to the State's message, you could have established this location for signs somewhere else. But to say that, put it up here, and then say, however, not religious ones here because someone might confuse that message with our message, well, why weren't you worried about that for all other messages? I don't understand that. That doesn't seem reasonable to me.
Michael J. Renner: Your Honor, first of all, I'm not certain that the State has ever invited the use of this property for displays, but--
Antonin Scalia: You said that any display could go up.
Michael J. Renner: --I'm saying that we, based on analysis of equal access, that we would not deny any display based on speech content, but I would put out that when the United Way barometer went up, it went up with the approval of the State of Ohio, and people saw it as having the approval of the State of Ohio, and that was permissible because the State of Ohio is not required constitutionally not to support the United Way.
Antonin Scalia: Just close it to the public forum and you would have no problem.
Michael J. Renner: That's correct, Your Honor, but we're not required to do that, because the First Amendment only requires us to forestall from participating in religious--
Antonin Scalia: But it doesn't seem reasonable to me to both do it and then come in complaining about people's messages being mistaken for those of the State when you have invited people, all people, not just religious groups but all people to come in and stick their message up in front of the Statehouse.
Michael J. Renner: --I don't think that's an accurate description of what the State of Ohio--
John Paul Stevens: Have you invited anybody to put a message up whose message you disagree with?
Michael J. Renner: --I don't know that we've ever invited anybody to put a message up.
John Paul Stevens: Well, have you permitted anybody to put a message up whose message you disagree with?
Michael J. Renner: We've only permitted United Way--
John Paul Stevens: Everything you've done is consistent with the view--
Michael J. Renner: --No. The answer is no.
John Paul Stevens: --that whenever it's there you... people will think you endorse it, is that right?
Michael J. Renner: That's correct, Your Honor, and I'd like to preserve the remainder of my time, if I may.
Stephen G. Breyer: I'd like to ask you one quick question, please. Could you just repeat like in 30 seconds or very briefly, what... I quite agree with you, I don't see how you could have a menorah and not have a cross. I don't really... I understand the difficulty of finding a distinction, so you'd say, don't have either. I see the picture, and I can understand you say, gee, people will think this cross right in front of the Statehouse is a State cross, but what I don't... that's your argument, all right. But what's the legal test that will say whether it should be back 10 feet, 20 feet, 30 feet? What is the legal test? It sounds as if the lower courts did apply a reasonable observer test. Are you disagreeing with their application of it?
Michael J. Renner: Oh, absolutely.
Stephen G. Breyer: What is this Court supposed to do, in your opinion? Is this Court supposed to say, I've never been to this square. I don't know if this photograph really telescopes distances. What do you want us to do?
Michael J. Renner: Your Honor, I want you to instruct the Sixth Circuit that if they're going to apply a reasonable observer test and a public forum notion they still must determine what a reasonable observer would see as the message from that public forum. They must determine whether the... is this a State message or a private message? They must not simply assume that because it's in a private forum everybody... in a public forum, everybody is going to know it's private speech.
William H. Rehnquist: Thank you, Mr. Renner.
Michael J. Renner: Thank you, Your Honor.
William H. Rehnquist: Mr. Wolman, we'll hear from you.
Benson A. Wolman: Mr. Chief Justice, and may it please the Court: The State has chosen to recast some of the events that have occurred in this matter. The record does not support the notion that the menorah and the United Way thermometer were the only items there. The district judge in his finding of fact number 13 specifically noted that the United Way thermometer and booths and arts festival displays, in addition to the menorah and the State's tree, were examples. That's the word the district judge used based on his findings, based on his familiarity with the particular setting. What is before the Court, we believe, is that here we have a quintessential public forum, a public forum in which the State has permitted a variety of displays, and those displays suddenly the State chooses to confine. Suddenly it chooses to say, my client's symbol shall not be there, and it relies upon its claim of Establishment Clause.
Antonin Scalia: Mr. Wolman, is this an all-purpose public forum at all times? That is, as I understood it, unattended displays have only been allowed during the holiday season. Am I correct in that?
Benson A. Wolman: No, Justice Scalia. In fact, the record here reflects that such things as the arts festival, which were not held during winter weather, and which there were displays and booths, those, for instance, were in the summer, and there's no--
Antonin Scalia: I said unattended displays. I assume these merchants did not walk away and leave their wares just sitting there.
Benson A. Wolman: --That may be during the daytime, but the unattended displays of art have appeared there overnight. Those are not just fold up the tents and leave. Nonetheless, there were... the United Way display was to the best of everyone's understanding not a part of any holiday seasonal display, so it was a year-round matter, and what we have here is the State suddenly announcing a new rule, a new rule not having previously precluded any display from being there. The record doesn't reflect any given instance where that happened. The new rule we think clearly violates the precedents of this Court going back a substantial period, and even in the modern era, Larson v. Valente as an example, where the Court had held that where there might be a compelling interest in the State to not violate the Establishment Clause, nonetheless the State has a duty to use mechanisms, mechanisms so as to preserve freedom of expression, mechanisms that are, to use the Court's language, closely fitted to the circumstances.
Sandra Day O'Connor: Well, Mr. Wolman, do you concede that reasonable time, place, and manner regulations can be adopted by the board, or the city--
Benson A. Wolman: Yes, Justice O'Connor.
Sandra Day O'Connor: --for the use of this area?
Benson A. Wolman: Yes, Justice O'Connor.
Sandra Day O'Connor: And would one such possibility be no unattended displays?
Benson A. Wolman: One possibility might be no unattended displays at any time, including religious and nonreligious. We would maintain that they could say, no unattended displays so long as there was some legitimate reason for extracting that part of the speech of the... speech in that forum from what it is at present.
Sandra Day O'Connor: And I suppose they could designate a certain smaller area of the open space for use by anyone who has a display.
Benson A. Wolman: They could indeed.
Anthony M. Kennedy: Could a reason be that they didn't want the Ku Klux Klan to get in on the act?
Benson A. Wolman: There is substantial evidence in the record to suggest that, Justice Kennedy. It could well be. The State did initially have public statements and discussions regarding that it did not wish to have the Klan display.
Anthony M. Kennedy: Could that be a legitimate reason for adopting a rule prohibiting all unattended displays?
Benson A. Wolman: No, Justice Kennedy.
William H. Rehnquist: Why not? A perfectly valid regulation can be passed from a number of motives, and it seems to me if the State decides, you know, we're getting a lot of flack from people who see this Klan display up here of the cross, and we're taking heat from it, and we realize we can't just ban the Klan's cross, but we're going to ban everything and just avoid the problem. Why would that raise a constitutional question?
Benson A. Wolman: We believe that when there is a traditional public forum, as there is in this case, the State cannot be in the position, as it did in this case, of making ad hoc willy nilly judgments.
William H. Rehnquist: Well, but I'm not talking about an ad hoc willy nilly judgment. I'm talking about a State decision that we are simply not going to have any unattended displays at any time in the future. It's pulling in the limits of the forum.
Benson A. Wolman: It could pull in the limits of the forum. We believe it ought not to be doing so for any unholy... any type of unholy reason.
Anthony M. Kennedy: But my question is, suppose, following up the Chief Justice's question, the Commission says, we have had for years a Christmas tree and a menorah. Now we have a sign that is very controversial. It's a symbol of hate to many people. The only way we can stop this is to have a new rule, no unattended displays. Is that constitutionally permissible?
Benson A. Wolman: We believe not. We believe that--
Anthony M. Kennedy: So that once you have this rule, the State in perpetuity, or at least for the reasonable future, has to allow the Ku Klux Klan cross?
Benson A. Wolman: --No, Justice Kennedy. We believe that time, place, and manner restrictions must be reasonable. The jurisprudence of this Court has for decades held that time, place, and manner restrictions, reasonable time, place, and manner restrictions are appropriate, but should not be content-based. We do maintain that the State could, indeed, exclude all unattended displays.
John Paul Stevens: Why are you... let me ask you a question about that content-based... supposing the State regarded the Capitol grounds as something like a very giant bulletin board that they put in their front hall. Could they not say, we will only allow messages to go up there that the State in general endorses, like some kind of a poster saying don't smoke, or don't drink, or contribute to the United Way, and so forth, things like that that are not very controversial? Could they limit the forum in that way, by content but only those things the State thinks are... that a sound public policy, it's bipartisan and the rest, would support?
Benson A. Wolman: And, Justice Stevens, yes, in that particular hypothetical example, they are not looking to the content of individual speakers. They are withdrawing the whole area as a public forum and just labeling it as a State area.
Antonin Scalia: Is that right? I mean, you think that's an innocuous limitation? An innocuous limitation is a limitation to only... that kind of speech that the State likes?
Benson A. Wolman: Well, frankly--
Antonin Scalia: I think that's absolutely the worst kind of limitation.
Benson A. Wolman: --Justice Scalia, we do not find that acceptable. We believe that this is a public forum area. There's no question in my mind that the entire Statehouse grounds could not be withdrawn from--
Ruth Bader Ginsburg: Mr. Wolman, do you believe the Establishment Clause has nothing to say here? You have answered the question so far that you can't distinguish between the political message and the religious message, certainly not one religion and another. Mr. Renner seemed to be saying, well, we have to be a little extra concerned about the endorsement notion because there's an Establishment Clause that we have to do something with. How do you fit the Establishment Clause into the way you view this question?
Benson A. Wolman: --Justice Ginsburg, we believe that the Establishment Clause clearly creates a legitimate interest for the State to make an inquiry. When you have a public forum, we do acknowledge the State has a legitimate interest in honoring the Establishment Clause and following its commands. In this particular instance and in general the State makes a major mistake. The Establishment Clause is to be read along with the Free Exercise Clause and the other expression clauses of the First Amendment. We believe the Establishment Clause and the Free Exercise Clause are co-guarantors of religious liberty. It was not... the Establishment Clause was not designed to be hostile to religious expression.
Ruth Bader Ginsburg: Well, could we bring it down to this case, and to make it concrete, if you can focus your attention on the Second Circuit's decision in the Kaplan case, and there Judge Feinburg and one of his colleagues thought that no viewer... in that case it happened to be a menorah. It could have been cross... no viewer, seeing this religious symbol in front of the city hall, could reasonably think that it was there without the approval of the government. Now, we're not taking there the statement of a dolt who is not acquainted with public forum law, but two respected judges from the Second Circuit, and what do we make of that reaction?
Benson A. Wolman: Justice Ginsburg, we believe that the Establishment Clause serves a very significant interest for the Society, and as applied to this case, we think the district court and, indeed, the circuit as well, properly applied the reasonable observer test. The State's position on this would ban all religious expression in this context. We believe the reconciliation of potentially conflicting provisions of the Constitution requires a narrowly tailored approach, closely fitted is I think the appropriate language, and in so doing, the State has all of the time, place, and manner restrictions that it customarily can use within the forum. It can use those here. The State can use disclaimers if it feels it becomes necessary, all of those.
Ruth Bader Ginsburg: You didn't ask to have this placed in the particular place. You put it where you were told to put it, is that--
Benson A. Wolman: It was not placed in a particular place. It was placed closer to the street than to the building. Perhaps to understand, since Mr. Renner made reference to the exhibit in their petition for cert, I would encourage you in our brief on the merits to look at supplemental exhibit 106 at the very end. That, I think, gives you the kind of display. The Klan cross was not up at that moment. It had been vandalized. But you can see other crosses, little ones, that were there, too. I appreciate the State's photography from a low angle, shooting upward. We, of course, engaged in distant photography.
Ruth Bader Ginsburg: --But you wouldn't have any... you didn't say, we must have it at this location.
Benson A. Wolman: No, not at all. The State could have said where, if it applied that to all symbols.
Ruth Bader Ginsburg: As far as the location and the size of the sign, you--
Benson A. Wolman: The State didn't insist on a sign of any particular size. The State was given--
Ruth Bader Ginsburg: --Could it have?
Benson A. Wolman: --It could have.
Ruth Bader Ginsburg: Could it have said, we want this sign to be not of cardboard, we want it to be legible, large letters... could it have said that?
Benson A. Wolman: It could have, and on the facts in this case, it took so long for the processes to go forward my clients very speedily put together their symbol and the disclaimer after the district court ruled a couple of days before Christmas.
Ruth Bader Ginsburg: How about the size of the religious symbol? Could the State have said, we will allow these symbols but not so that they overwhelm the space, or dictate a limit on the size?
Benson A. Wolman: Justice Ginsburg, the State may well have limitations on size of any of the displays within the forum, and if it ultimately became necessary, in order to serve a compelling State interest of Establishment Clause protection, the State could have suggested limitations. As it was, on the record in this case you had the menorah, which was 14-feet high across, 10-feet high, a Christmas tree at a distance which was 20-feet high.
Antonin Scalia: Mr. Wolman, I confess not to understand your argument, how you wish us to decide this case. I had thought that the principle you would espouse was the Lamb's Chapel principle, that if the State does this for all others it is no violation of the Establishment Clause to treat religion the same way as others. Is that what you're appealing to?
Benson A. Wolman: That is correct.
Antonin Scalia: But you've mentioned some case-by-case evaluation. How does that fit with case-by-case evaluation? Do you want us to evaluate, case by case, whether there's too much identification with the Statehouse, or do you want us to simply say, if you do it for everybody else, you have to do it for religion? Which is the approach you're urging?
Benson A. Wolman: Justice Scalia, we believe that presumptively the speech should be treated... religious speech should be treated the same, presumptively, but--
Antonin Scalia: But not necessarily.
Benson A. Wolman: --But not an irrebuttable presumption.
Antonin Scalia: I see.
Benson A. Wolman: In other words, there may--
Antonin Scalia: So maybe if I thought this is too closely associated with the State Capitol, I... it's just a factual matter, whether I think the crosses are too close to the Capitol, and if they are, then even though you're allowing other speech, the cross can be excluded.
Benson A. Wolman: --No, not excluded, Justice Scalia. The State could impose time, place, and manner restrictions and take a variety of measures, not exclusions.
Antonin Scalia: But not exclusions. Then it is not a case-by-case evaluation you're urging on us.
Benson A. Wolman: No, it... well--
Antonin Scalia: It is, or it isn't?
Benson A. Wolman: --Justice Scalia--
Antonin Scalia: I'm talking about exclusion. I'm not talking about... let's leave time, place, and manner out of here.
Benson A. Wolman: --Exclusion, you're absolutely correct, is not a case-by-case.
Antonin Scalia: If you allow others to do it, you're saying you have to allow crosses there.
Benson A. Wolman: That's correct, and time, place, and manner restrictions might be appropriate in terms of, if there is that overwhelming appearance of endorsement that the State seems so worried--
David H. Souter: Well, Mr. Wolman, that's what I thought you had been getting at before, and I guess you've relinquished this position if it was yours, but let me just put it forward and get your response to it. Let's assume that we do have something like a Lamb's Chapel situation. It seems to me one of the characteristics of the Lamb's Chapel situation is that the use that has been allowed of the public facilities, whatever they may be, has been sufficiently nonselective and universal that sort of everybody knows that there is no endorsement implication when suddenly a religious group comes along and says, yes, we want to have a meeting in this room, too. I thought you were leaving open the door, however, to a situation in which the religious use is in some visual or some other way so remarkable, or so different from, in some sense different from the prior nonreligious uses, that somebody would not necessarily know that there was no endorsement here. And in a case like that, I thought you were leaving the door open to a reasonable observer kind of analysis, and I thought, so in that sense you're allowing a case-by-case, or the possibility of a case-by-case exception, even though you accept as a general, or propose as a general rule the Lamb's Chapel analysis. Did I misunderstand you in that respect?
Benson A. Wolman: --I think not. I think I was stating, one hopes sufficiently articulated, that when there is this tradition, as in Lamb's Chapel, when there is this understanding of the access to the forum, that reasonable observers would understand the nature of the forum.
Antonin Scalia: So you've retracted the answer you gave me, in other words.
Benson A. Wolman: No.
Antonin Scalia: Right?
Benson A. Wolman: No, I believe not, Justice--
Antonin Scalia: It has to be one or the other. We're not talking about time, place, and manner. We're talking about, having made the determination that you let other people do it, must you let religious people do it, and I thought your answer to me was yes, but you're answer to Justice Souter--
Benson A. Wolman: --No.
Antonin Scalia: --is not necessarily. If it's, you know, a reasonable observer would confuse it with the State, then you don't have to let them do it.
Benson A. Wolman: No, Justice Scalia. The reasonable observer approach does not justify a ban. The reasonable observer approach, that approach may only justify the use of appropriate time, place, and manner devices.
Antonin Scalia: So that means there would be no content regulation. Does that mean, under the history of this particular public forum, that if I came in and asked you for an injunction requiring you to allow me to put up a sign, "Vote for Ceorge Bush", someone that Ohio did not endorse, they would have to allow that sign in that forum?
Benson A. Wolman: I believe that the State rules do not prohibit that, and that the State--
John Paul Stevens: So the answer is yes.
Benson A. Wolman: --Yes.
John Paul Stevens: They would have to allow that. They'd have to allow political campaigning on the... by--
Benson A. Wolman: That's correct.
John Paul Stevens: --Has that ever been done?
Benson A. Wolman: I do not know if that--
John Paul Stevens: Is there anything in the record suggesting--
Benson A. Wolman: --I don't know of anything specifically on that in the record. There was, after all of this, a candidate for Governor who chose to camp out for roughly a month on the Statehouse lawn, but of course, that would have been attended.
William H. Rehnquist: --That was attended. [Laughter] I don't wish to make you retravel ground you've already traveled, but I am still not clear as to your answer whether or not at this juncture the State could say, because there is highly unpopular speech attended to the Ku Klux Klan symbol, we are enacting a rule, no unattended symbols.
Benson A. Wolman: No. We believe that the State cannot say, because there is hostility to this symbol, we are closing it down. That's closing it down because of--
Anthony M. Kennedy: Could the State say that because there is controversy over religious symbols generally at Christmastime, we are going to leave the field, as it were, and prohibit all unattended displays?
Benson A. Wolman: --No, Justice Kennedy.
John Paul Stevens: Well, can they abandon the public forum? Can they terminate the public forum?
Benson A. Wolman: The State cannot terminate the public forum, which... this is one of the most quintessential ever. This is the central square, the city square.
John Paul Stevens: But is every city square in every State in the... every capitol square in every capital in the United States a public forum, and if not, why can't Ohio say, we want to be like everybody else, and not make it a public forum?
Benson A. Wolman: This is in fact--
John Paul Stevens: Well, what is your position on that?
Benson A. Wolman: --No. We believe that State Capitol buildings and county buildings are traditional locations for speech and, in fact, as this Court has noted in Edwards v. South Carolina, this is one of those areas most important to have speech.
Anthony M. Kennedy: So we can have a Ku Klux Klan cross on every Statehouse lawn in the United States?
Benson A. Wolman: We could, depending on events that occurred.
Antonin Scalia: Not could, we must. I think I see what you're getting at. You regard the unattended as a time, place, and manner restriction. You're saying you have to allow people to march and picket and assemble and protest there, but you don't have to allow unattended displays, is that it?
Benson A. Wolman: The State, for neutral reasons, not content-based, the State could choose not to have unattended displays.
Antonin Scalia: And that's a time, place... that's a manner restriction.
Benson A. Wolman: Yes.
Antonin Scalia: And is it also your position, in answer to Justice Souter and me, that the State could place a manner restriction only upon religious displays out of Establishment Clause concerns? That is, everybody else can have an unattended display, but if, on a case-by-case basis, there's too much of a risk of associating it with the Capitol, religious groups cannot have unattended displays. Is that what you were saying to Justice Souter?
Benson A. Wolman: No, we would--
Antonin Scalia: No?
Benson A. Wolman: --We would say that religious displays must be permitted, not banned.
Antonin Scalia: They're permitted. They just have to be attended, that's all.
Benson A. Wolman: No. We're saying if there are other forms of displays, political, social, whatever those forms of displays, then the religious symbols must be permitted. We do maintain--
David H. Souter: On the same rules that every other display is permitted. In other words, you're saying everybody's got to play by the same rules.
Benson A. Wolman: --Everyone has to play--
David H. Souter: Right.
Benson A. Wolman: --by the same rules.
David H. Souter: And that's as far as you go, isn't it?
Benson A. Wolman: Not quite.
Ruth Bader Ginsburg: Well-- --Then you are saying the Establishment Clause doesn't operate.
Benson A. Wolman: No. We are saying that in those--
Ruth Bader Ginsburg: It's not relevant, that--
Benson A. Wolman: --Well, I think one is not--
Ruth Bader Ginsburg: --But if you said, if everything is the same, the Establishment Clause doesn't apply to all speech.
Benson A. Wolman: --If everything is the same, the Establishment CLause would not apply, but these things happen in different ways in different places, and everything may not be the same. There may be some circumstance where, for instance, the State--
Ruth Bader Ginsburg: Well, could you give me an instance where you could ban a religious symbol, but could not ban the thermometer?
Benson A. Wolman: --I can't think--
Ruth Bader Ginsburg: Or you could ban the Klan cross, but you could not ban the red cross, which people I think don't associate with religion.
Benson A. Wolman: --I cannot think of an example where you could outright ban.
Ruth Bader Ginsburg: So then, the Establishment Clause you say really doesn't bear on this problem.
Benson A. Wolman: The Establishment Clause may bear where, if absent certain types of handling of displays it becomes necessary for some special reason, given the extraordinarily immense display as an example, it may be appropriate to have in general time, place, and manner restrictions.
William H. Rehnquist: Well, Mr. Wolman, supposing you have not the State Capitol in Columbus, where you have 10 acres, but a State Capitol which has a much, much smaller grounds, and they've got some beautiful flowers planted there, and they say, you know, we're not having any displays here at all on these grounds. There's a capital park across the street that you can go to, but we just don't have any displays, attended or unattended, on these grounds. Is that permissible?
Benson A. Wolman: That's content neutral, and it is permissible.
William H. Rehnquist: Well then, why can't Ohio return to that sort of a thing even though previously it wasn't?
Benson A. Wolman: It could return to it, if--
William H. Rehnquist: But I thought you said they can never get out of their public forum.
Benson A. Wolman: --No, I was speaking of the general public forum, slightly distinguished from displays. If they have a content-neutral reason for not having the displays there--
William H. Rehnquist: What if they just have a content-neutral rule?
Benson A. Wolman: --Yes.
William H. Rehnquist: Why do we have to inquire into their motive why they have a content-neutral rule?
Benson A. Wolman: If they do have a content-neutral rule, then, indeed, they could exclude unattended displays from the public forum, for a variety of reasons. I mean, it may be that unattended at night creates problems. People might walk into them, lighting, there's all kinds of reasons one can come up with why--
Antonin Scalia: No, they're just doing it because they just don't like the KKK thing. It gets a lot of their citizens mad, and they say, well, if we let everybody else do it, we have to let the KKK do it, and it's not worth it. We're just not going to have any unattended displays. Can they do that?
Benson A. Wolman: --No.
Stephen G. Breyer: On the other hand, if the State is broke, and it says, the only way we can balance the budget is to sell our 10-acre plot for an office building, you'd let them do that, wouldn't you?
Benson A. Wolman: We would, indeed.
Stephen G. Breyer: So there's one circumstance in which they can totally eliminate the public forum and you agree. [Laughter] Mr. Wolman--
Benson A. Wolman: That's absolutely correct.
Clarence Thomas: --Mr. Wolman... I hate to interrupt you, but I'd like to ask just a couple of questions, if I may. You say that this is a religious symbol. What is the religion of the Klan?
Benson A. Wolman: The Klan members hold themselves out in this record as Christians. They hold themselves out as the symbol being not just a symbol of their faith, but a symbol of history, a symbol of history that many of us may find, at the very least, disquieting. Nonetheless, it reflects a symbol of the Confederate cross, the Scottish clans of the 1300's... it's not just a religious symbol. It has a variety of meanings, as do most types of symbols.
Clarence Thomas: But I think the argument... the reason I ask is so much of the argument is based on the assumption that this cross is a religious symbol. Now, is there testimony to the effect that it is a religious symbol.
Benson A. Wolman: There is testimony as to the mixed purpose, and indeed, not just testimony, but the disclaimer itself specifically recited... it's at page 12 of our brief in chief. The disclaimer itself specifically said it was to express respect for the holiday season and to in fact test the government of the State of Ohio, challenge them over their discriminatory application, granting the application of the menorah.
Clarence Thomas: Well, if it has a... and I don't know what the mix is. Let's say, 50-50, 50 whatever other reasons, and 50 religious, then how does that become a free exercise problem?
Benson A. Wolman: Well, we believe that free exercise is not a problem. We believe that--
Clarence Thomas: Well, I mean, it's a problem in this case.
Benson A. Wolman: --In this case, the State is asserting that the Establishment Clause bans it, and we think they're totally off-base in doing it.
Clarence Thomas: Well, now, with that said, what is... what does a burning cross symbolize?
Benson A. Wolman: A burning cross, I believe, would symbolize the general orientation of the Ku Klux Klan against racial minorities, not just you, ethnic minorities, myself and others, a whole variety of purposes.
Clarence Thomas: So there are some people... as I understand the record, there were some concerns that some of the citizens of Columbus, when they saw that, could actually see fire on that cross.
Benson A. Wolman: Could see fire, you mean figuratively?
Clarence Thomas: That's right.
Benson A. Wolman: Perhaps some could. The record here indicates, though, there were no security issues. The judge specifically--
Clarence Thomas: But doesn't the record suggest, though, that there was some concern that people would see more than the religious symbol in that cross?
Benson A. Wolman: --Yes, I think that's true, and that's a political message, and one very much protected by the Free Speech Clause.
Clarence Thomas: But that message doesn't implicate the Establishment Clause.
Benson A. Wolman: We believe not. The political message does not.
Clarence Thomas: Do you think that the political... with respect to the cross, that the political message for the Klan overwhelms the religious free exercise considerations, that if someone... if I said that a member of the Ku Klux Klan is carrying a cross down Pennsyivania Avenue, would the average person, or the reasonable person, think that that, that the Klan is engaged in an exercise of religion, or a political statement?
Benson A. Wolman: My own personal views, but not in the record, are that I would view it as mostly a political statement, but we... and in fact we believe that the State has used the Establishment Clause as a make-weight in this matter. The Establishment Clause is not irrelevant, but we think that it has been--
Clarence Thomas: So we're shoe-horning a political case into the religious component of the First Amendment.
Benson A. Wolman: --We believe the State has done just that. Thank you, Mr. Chief Justice.
William H. Rehnquist: Thank you, Mr. Wolman. The case is submitted.