Doe v. Small
| Decision Date | 18 May 1992 |
| Docket Number | No. 89-3756,89-3756 |
| Citation | 964 F.2d 611 |
| Parties | Jane DOE, Plaintiff-Appellee, v. George D. SMALL, Mayor of the City of Ottawa, Illinois, Barbara J. Lindquist, William C. Ferguson, Alan R. Howarter, William N. Stevenson, Members of the City Council of the City of Ottawa, Illinois and City of Ottawa, Illinois, a municipal corporation, Defendants, and Ottawa Freedom Association, Limited, Intervening Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph R. Lundy, Deborah A. Golden, Schiff, Hardin & Waite; Harvey M. Grossman, Jane M. Whicher (argued), Roger Baldwin Foundation, Chicago, Ill.; Donald S. Rothschild, Rothschild & Associates, Oak Park, Ill.; and Elmer Gertz, Chicago, Ill., for plaintiff-appellee.
Joel G. Chefitz (argued) Cynthia Photos Abbott, Paul A. Haskins, Patrick J. Lamb, Katten, Muchin & Zavis, Chicago, Ill.; George C. Hupp, Jr., Hupp, Lanuti, Irion & Martin, Ottawa, Ill.; and Robert K. Skolrood, Nat. Legal Foundation, Virginia Beach, Va., for Intervenor-Appellant.
Judson H. Miner, Davis, Miner, Barnhill & Galland; and Sylvia Neil, Chicago, Ill., for American Jewish Congress, amicus curiae.
Jeffrey P. Sinesky, Steven M. Freeman, Jill L. Kahn, Richard E. Shevitz, Michael A. Sandberg, Anti-Defamation League of B'Nai B'Rith, New York City; James D. Holzhauer, Robert A. Helman, and Thomas C. Berg, Mayer, Brown & Platt, Chicago, Ill., for Anti-Defamation League of B'Nai B'Rith, amicus curiae.
Before BAUER, Chief Judge, CUMMINGS, WOOD, Jr., * CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges.
The Ottawa Freedom Association ("OFA") 1 appeals the district court's entry of summary judgment enjoining the City of Ottawa from allowing any person or group from displaying the paintings at issue in Washington Park in Ottawa, Illinois. Because this injunction is overbroad and infringes on the free speech rights of any private person desiring to display the paintings, we reverse.
In 1956 the Ottawa Retail Merchants' Association, a private organization, commissioned the painting of sixteen canvases depicting scenes from the life of Christ in an effort to "put Christ back in Christmas." These paintings were displayed in Washington Park, located in the heart of the City of Ottawa, Illinois, during the Christmas season from 1957 to 1969 and again in 1980 through 1988. Except for the years 1964 through 1967, when the City arranged for the erection of the paintings, the display has been exhibited by private parties.
The paintings were not displayed during the 1970s but were stored under an old grandstand structure and apparently forgotten. According to a 1980 Ottawa newspaper article, the City Parks Superintendent who discovered the paintings under the old grandstand stated:
Upon reading about the discovery of the paintings, the local chapter of the Junior Chamber of Commerce (Jaycees), a national service-oriented organization, contacted the City and volunteered to take charge of the paintings; the Jaycees were the caretakers of the paintings until they transferred their custody to the OFA shortly before the request for rehearing en banc.
When the paintings were displayed, they occupied less than one-half of the west side of Washington Park in a slightly V-shaped angle (150? ), and the vertex of the display was forty-eight feet from the street. Including the area between the paintings and the sidewalk, the paintings occupied 6.34 percent of the Park. A 20 1/2" wide by 21" high sign with letters 1 1/16"' high, clearly legible from the sidewalk but not from across the street, accompanied the paintings and stated: "THIS DISPLAY HAS BEEN ERECTED AND MAINTAINED SOLELY BY THE OTTAWA JAYCEES, A PRIVATE ORGANIZATION, WITHOUT THE USE OF PUBLIC FUNDS." 3
Washington Park is a quintessential public forum well removed from the seat of the City government; City Hall is some three blocks away, and no City buildings border the park. Deposition testimony from a number of Ottawa residents established that Washington Park has historically been an open public forum with free and equal access to all for lawful purposes. Space in the Park is allocated on a first-come, first-served basis, without specific permission from the City:
Deposition of City Council Member William C. Ferguson at 44, 86-88.
Unrestricted public access to Washington Park dates back some 133 years to 1858 when Abraham Lincoln and Stephen Douglas used the Park for one of their famous debates. In 1988, President Bush likewise chose Washington Park as a forum for a speech and rally during his presidential campaign. According to City records, the Park has been the site of a broad array of private activities in recent years, including religious activities:
1982
June 19, 1982 Residents Against Polluted Environment sponsored "Earth Day"
Aug. 2, 1984 Tora! Tora! held a concert for world peace
Oct. 29, 1983 Open air meeting sponsored by the Congregation of the New Life Ministry, Inc.
June 28, 1984 Special Church Service
July, 1984 Religious Concert
Aug., 1984 Concert for World Peace
Aug., 1984 Cut a Thon by Cosmetologists
1985
Jan., 1985 Illinois Valley Citizens for Life Prayer Vigil
May, 1985 Concert in Washington Park
June, 1985 United Methodist Church Services
July, 1985 University Women Book Sale
July, 1985 Grade School Band Social and Concert
Oct., 1985 United Way Lunch
1986
June, 1986 Camp Fire Girls Ceremony
June, 1986 Art League Display
June, 1986 Pastor Reed Church Service
July, 1986 Arts & Crafts Show--Art League
July, 1986 A.A.U.W. Book Sale
July, 1986 Decatur Park Concert
Aug., 1986 Grade School Band Concert
Aug., 1986 Flea Market
Aug., 1986 A.A.U. Book Sale
Sept., 1986 Ottawa Lioness Club Flea Market
Sept., 1986 Nam Vets POW/MIA National Recognition Ceremony
1987
May, 1987 Ottawa Retail Council Flea Market
May, 1987 Amazing Grace Fellowship Meeting and Concert
July, 1987 New Lite Ministries Rummage Sale
July, 1987 Nam Vets--Concert
Aug., 1987 Sesquicentennial Celebration Activities
Sept., 1987 Lioness Club Flea Market
Sept., 1987 Nam Vets POW/MIA National Recognition Ceremony
Oct., 1987 All Church Concert
1988
May, 1988 Mayfest Flea Market
July, 1988 Art Show
July, 1988 Book Sale
July, 1988 Dance Show
Aug., 1988 Flea Market
Sept., 1988 Lioness Flea Market
Sept., 1988 POW/MIA National Recognition Ceremony
(Emphasis added.)
For many years the City of Ottawa, in the spirit of the season and "goodwill toward others," has combined with private parties in a joint effort to decorate the downtown area with festive holiday and Christmas decorations during the Yuletide season. As part of the City's decorations, it displayed a Santa Claus house in the Park each year during the 1960s and 1970s, but more recently the City displays the house in alternate years. Additionally, the lamp posts in the downtown area as well as those in and surrounding Washington Park are garnished with Christmas decorations. In 1988 the City added the "Festival of Lights" to the Christmas display in Washington Park. The "Festival of Lights" decorations included lights, candles, bows, artificial snowflakes and a fifteen-foot snowman. The lights were placed on the memorials in the Park as well as on tree branches, including those trees surrounding the paintings at issue in this appeal. The giant candles, bows, snowflakes and the fifteen-foot snowman all served as different focal points and were visible from in and around the Park. The Christmas display in the Park also included an evergreen Christmas tree displayed by the Salvation Army that provided its own focal point.
In November of 1986, Richard Rohrer wrote a letter to the City Council requesting that the paintings be removed from Washington Park because they "represent an unacceptable endorsement of Christianity by the city and violate the constitutional rights of all Ottawans who are not Christians." On December 2, 1986, the Ottawa City Council passed the following resolution:
To continue reading
Request your trial
-
Mercier v. City of La Crosse
...that once violated the establishment clause is not forever prohibited from finding other ways of accommodating religion. Doe v. Small, 964 F.2d 611 (7th Cir.1992). However, the Order disregards Supreme Court and circuit precedent when it argues that it is improper to evaluate the City's cur......
-
Kreisner v. City of San Diego
...to display creche in traditional public forum affirmed by an equally divided court). It has divided the circuits. See Doe v. Small, 964 F.2d 611 (7th Cir.1992) (en banc) (injunction forbidding display of religious paintings by private organization in public park held over-broad); Chabad-Lub......
-
Snowden v. Town of Bay Harbor Islands, Florida
...United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1542 (6th Cir.1992)(en banc); Doe v. Small, 964 F.2d 611, 618-19 (7th Cir.1992)(en banc); cf. Johnson, 491 U.S. at 406, 109 S.Ct. at 2540 (burning American flag is protected speech under the First Amendment); ......
-
Linnemeier v. Indiana University-Purdue University
...Cir. 1986) (alters behavior by detouring); Doe v. Small, 726 F.Supp. 713, 718-19 (N.D.Ill. 1989), rev'd en banc on other grounds, 964 F.2d 611 (7th Cir.1992) (avoids using It goes without saying that each of the remaining Plaintiffs object to the viewpoint of the Play as hostile to their pa......
-
Proposed Guidelines for Student Religious Speech and Observance in Public Schools - Jay Alan Sekulow
...to punish private religious speech (even so called "proselytizing" speech) for the sins of the government. See, e.g., Doe v. Small, 964 F.2d 611, 620-22 (7th Cir. 1992), in which the court vacated an injunction that had prohibited the private display of religious exhibits in a public forum ......
-
The First Amendment: Has the Supreme Court Overlooked Its Role as Guardian of Our Freedom by Failing to Distinguish Between Real Threat and Mere Shadow? - Jimmy Daniels
...in a truly public forum cannot be seen as [an] endorsement [of a particular religion]."); Id.; 5 F.3d at 1394 (citing Doe v. Small, 964 F.2d 611, 629 (7th Cir.1992) ("Any perceived endorsement of religion in a true public forum is simply misperception; the Establishment Clause is not in fac......