Diloreto v. Downey Unified Sch. Dist. Bd. of Educ.
| Decision Date | 04 August 1999 |
| Docket Number | No. 98-56762,98-56762 |
| Citation | 196 F.3d 958 |
| Parties | (9th Cir. 1999) EDWARD DILORETO, Plaintiff-Appellant, v. DOWNEY UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION; EDWARD SUSSMAN, individually and in his capacity as superintendent; BETTY N. FERRARO, individually and in her official capacity as president; MARGO HOFFER, individually and in her official capacity as a member, Downey Unified School District, Board of Education, Defendants-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas V. Christopher, Los Angeles, California, for amicus curiae The Anti-Defamation League.
David R. Huggins, Virginia Beach, Virginia, for amicus curiae The National Legal Foundation.
Kevin J. Hasson, Washington, D.C., for amicus curiae The Becket Fund for Religious Liberty.
Appeal from the United States District Court for the Central District of California; Carlos R. Moreno, United States District Judge, Presiding. D.C. No. CV-97-04028-CM
Before: Alex Kozinski and Sidney R. Thomas, Circuit Judges, and Susan Y. Illston,* District Judge.
Appellant Edward DiLoreto sued the superintendent of the Downey Unified School District and two members of the Board of Education (collectively "the District") based on the District's refusal to post an advertisement, paid for by Mr. DiLoreto, on Downey High School's baseball field fence. The advertisement contained the text of the Ten Commandments. Mr. DiLoreto contends that the District's refusal to post the advertisement violated his right to free speech under the First Amendment to the United States Constitution. The District raises the defense that posting the sign would have violated the Establishment Clause of the First Amendment and that it feared disruption and controversy that the sign might precipitate. The District Court granted summary judgment to the District, and this appeal followed.
We affirm because we conclude that the baseball field fence was a forum limited to certain subjects and not open for indiscriminate use by the general public. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988). We hold that the District could exclude subjects from the nonpublic forum that would be disruptive to the educational purpose of the school. We also hold that neither the District's refusal to post the sign nor the District's later decision to close the forum to all advertising constituted viewpoint discrimination.
The parties do not dispute the material facts. In September of 1995, Downey High School's Baseball Booster Club ("Booster Club") raised funds by soliciting ads from local businesses. The ads were to be posted on the school's baseball field fence in exchange for a $400 donation. Mr. DiLoreto, Chief Executive Officer of Yale Engineering, purchased an ad and submitted a design containing a lengthy message and listing the Ten Commandments. Mr. DiLoreto subsequently revised his proposal to be less wordy. His final ad proposal read as follows:
For Peace in Our Day!
Pause & Meditate on These Principles to Live By!
Mr. Layne, the principal of Downey High School, declined to post the sign, and defendant Edward Sussman, the district superintendent, ratified that decision. The Booster Club refunded Mr. DiLoreto's donation. The District declined to post the sign based on (1) concern about running afoul of the Establishment Clause; and (2) disruption, controversy and expensive litigation that might arise from community members seeking to remove the sign or from religious or political statements that others might wish to post.
Mr. DiLoreto subsequently sought a legal opinion from the Attorney General of the State of California regarding the legal ramifications of the District's decision not to post the sign. The Attorney General's Office issued an opinion on September 13, 1996, which concluded that refusing to post an otherwise appropriate business advertisement that clearly identified the advertising party and merely incorporated a religious message does not comport with the United States and California Constitutions. 79 Op. Cal. Atty. Gen. 196 (1996). On October 3, 1996, the District discontinued the program and removed approximately forty other signs that had been posted on the baseball field fence pursuant to paid advertising arrangements with the Booster Club.1
The undisputed evidence in the record reflects that the District excluded advertisements from the fundraising program that involved subject matters deemed sensitive and inappropriate in the public secondary school context. For example, the District did not permit advertisements for alcohol or taverns. The District also excluded an ad for Planned Parenthood. Nothing in the record indicates that anything other than commercial advertising was ever permitted on the Downey High School field fence.
On May 2, 1997, Mr. DiLoreto filed a complaint in Los Angeles County Superior Court alleging, inter alia, violation of his rights to free speech under the United States and California Constitutions. The District removed the action to the United States District Court for the Central District of California. The District Court remanded Mr. DiLoreto's claims under the California Constitution, and retained only Mr. DiLoreto's federal constitutional claims under 42 U.S.C. S 1983. In the state court action, the Los Angeles County Superior Court granted the District's motion for summary judgment. On August 19, 1999, during the pendency of this appeal, the California Court of Appeal affirmed, finding that posting the ad would have violated Article I, section 4 of the California Constitution,2 and that refusing to post the ad did not violate Mr. DiLoreto's free speech rights under Article I, section 2 of the California Constitution. DiLoreto v. Board of Educ., 74 Cal.App.4th 267 (1999).
In the federal action, the District Court denied Mr. DiLoreto's motion for summary judgment, and granted the District's motion for summary judgment. The District Court concluded that posting Mr. DiLoreto's sign would have violated the Establishment Clause of the First Amendment to the United States Constitution. The District Court also concluded that refusing to post the sign did not violate Mr. DiLoreto's free speech rights because the baseball field was a nonpublic forum, and the District's decision not to post the sign was reasonable as well as viewpoint neutral. Mr. DiLoreto filed a timely notice of appeal.3
We review de novo a district court's grant of summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). We must determine, viewing the evidence in the light most favorable to the party opposing the motion, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See Margolis, 140 F.3d at 852. When a district court upholds a restriction on speech, the appellate court conducts an independent, de novo examination of the facts. Tucker v. California Dep't of Educ., 97 F.3d 1204, 1209 n.2 (9th Cir. 1996).
The validity of the District's conduct turns on the nature of the baseball field fence as a forum for expression. The Supreme Court has held that "[t]he existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983). The Court employs a forum analysis to evaluate the nature of the property and the corresponding permissible government limitations on expressive activity. See Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 800 (1985)."Forum analysis divides government property into three categories: public fora, designated public fora, and nonpublic fora." Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th Cir. 1998), cert. denied, 119 S. Ct. 1804 (1999).
A traditional public forum, such as a public park or sidewalk, is a place "that has traditionally been available for public expression." International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)(ISKCON). Regulation of speech in a traditional public forum is permissible "only if . . . narrowly drawn to achieve a compelling state interest." Id. When the government intentionally opens a nontraditional forum for public discourse it creates a designated public forum. See Children of the Rosary, 154 F.3d at 976 (citing Cornelius, 473 U.S. at 802). Restrictions on expressive activity in designated public fora are subject to the same limitations that govern a traditional public forum. See ISKCON, 505 U.S. at 678.
All remaining public property is classified as nonpublic fora. The government may limit expressive activity in nonpublic fora if the limitation is reasonable and not based on the speaker's viewpoint. Id. at 679. The Supreme Court recently has used the term ...
To continue reading
Request your trial
-
Every Nation Campus Ministries v. Achtenberg
...v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 804, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), DiLoreto v. Downey Unified Sch. Dist., 196 F.3d 958, 968 (9th Cir.1999). The two broadest fora categories are public and non-public.15 Within the first category, courts distinguish between "t......
-
Waln v. Dysart Sch. Dist.
...government property into three categories: public fora, designated public fora, and nonpublic fora." DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ. , 196 F.3d 958, 964 (9th Cir. 1999) (internal quotations omitted). A sub-category of the "designated public forum" is the "limited public f......
-
Reno v. Nielson
...nonpublic forum that the government intentionally has openedto certain groups or to certain topics." DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999). HPD's record archives are a limited public forum. The archives are not the type of traditional forum hi......
-
Garnier v. O'Connor-Ratcliff
...‘the government intentionally opens up a nontraditional forum for public discourse.’ " Id. (quoting DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ. , 196 F.3d 958, 964 (9th Cir. 1999) ). To determine whether the government has created a designated public forum, we look "to the policy and......
-
Public Officials Who Block Users on Social Media May Be Violating the First Amendment
...288, 295. [4] Naffe v. Frey (9th Cir. 2015) 789 F.3d 1030, 1037. [5] DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ. (9th Cir. 1999) 196 F.3d 958, 964.) [6] Ward v. Rock Against Racism (1989) 491 U.S. 781, 791.) [7] Id. at...
-
How free is the speech of public school students?
...See, e.g., Board of Education v. Mergens, 496 U.S. 226 (1990).] See also DiLoreto v. Downey Unified School District Bd. of Education, 196 F.3d 958 (9th Cir. 1999), finding a high school baseball field fence to be a "nonpublic forum," and thus rejecting a challenge brought by a nonstudent se......
-
First Amendment Implications of Restricting Food and Beverage Marketing in Schools
...Id. at 267 (internal quotations marks, citations omitted; emphasis added). See also DiLoreto v.Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 968 (9th Cir. 1999) (holding that advertising spaceon school’s baseball field fence was a non–public forum); Williams v. Vidmar, 367 F. Supp. ......