Findings of Law and Facts Regarding County Property
01-06-1997
1. The DeKalb County Commissioners have been advised by their
legal counsel that
1.01 The First Amendment guarantees freedom of speech.
1.02 The protection granted by the First Amendment is not
limited to verbal utterances but extends as well to
expressive conduct.
1.03 Protected speech under the First Amendment is not
equally permissible in all places and at all times.
1.04 The First Amendment does not guarantee unlimited
access to government-owned property for purposes of
expression.
1.05 Government has the power to preserve the property
under its control for the use to which the property is
lawfully dedicated.
1.06 A three step forum analysis is a means of determining
when government's interest in limiting the use of government
property outweighs the interest of those wishing to use the
property for other purposes.
1.07 First, a determination is made whether the conduct or
display requested is speech protected by the First Amendment.
1.08 Second, if the conduct or display is protected, then
a determination is made concerning the nature of the forum is
identified to determine the extent the government may limit
access to government property.
1.09 Third, a determination is made regarding the extent
that government regulation of the forum is determined.
1.10 A traditional public forum is a forum which by long
tradition or by government action has been devoted to public
use, assembly, or debate, such as a town square, streets,
parks, and public sidewalks.
1.11 A designated public forum, also called by some a
limited public forum, is public property a government has
opened to the public for expressive activity of certain
places, certain subjects, or certain types of groups, such as
a municipal theater, or a school board meeting room.
1.12 A non-public forum, also referred to by some as a
closed public forum is public property which is not by
tradition or designation a forum for public communication,
wherein the principal governmental function of such property
is disrupted by unrestricted expressive activity, such as
governmental inner offices, military camps, prisons, or an
internal mail system of a school board.
1.13 In a traditional public forum or an intentionally
designed public forum, content-neutral time, place and manner
of expression regulations are allowed by government only if
such regulations are narrowly tailored, no more than
necessary, to serve a compelling governmental interest and
leave open ample alternative channels of communication.
1.14 Regulation of a traditional or designated public
forum may not restrict expression of speech because the
expression will invoke a hostile outward reaction from
society at large.
1.15 A government may regulate speech in a traditional
public forum or an intentionally designed open forum where
the expression is shown to produce a clear and present danger
of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest, such as fighting words
with a direct tendency to cause acts of violence or advocacy
of imminent unlawful conduct.
1.16 Speech that is odious, loathsome, vile, intolerant,
bigotry, wholly reprehensible, hateful, racial, likely to
engender fears agitation and disgust in others, even to the
extent of fostering spontaneous or organized protests, is
protected by the First Amendment in a traditional or
designated public forum and cannot be regulated by a
viewpoint discriminative against the ideas of the speaker.
1.17 A government may not, on the claim that if the speech
is allowed the public will misperceive government
endorsement, ban or discriminate against any speech in a
traditional or designated open public forum.
1.18 In a designated or limited public forum, a government
is free to impose a blanket exclusion on all speech.
1.19 In a non-public forum (or a closed public forum), a
government may reserve the non-public forum for certain
governmental purposes and regulate expression of speech in
the non-public forum so long as the regulation of speech is
reasonable and not an effort to suppress expression merely
because public officials oppose the speaker's view.
1.20 Although a speaker may be excluded from a non-public
forum if the speaker wishes to address a topic not
encompassed within the purpose of the forum, or if the
speaker is not a member of a class of speakers for whose
special benefit the forum was created, a government violates
the first Amendment when the government denies access to a
speaker solely to suppress the point of view the speaker
espouses on an otherwise includible subject, a government
cannot exclude a speaker based on the specific motivating
ideology or the opinion or the perspective of the speaker.
1.21 In determining whether a government has acted to
preserve the limits of a non-public forum the government
created so that the exclusion of a class of speech is
legitimate, a distinction must be made between, on the one
hand, content discrimination, which may be permissible if it
preserves the purposes of the limited non-public forum, and,
on the other hand, viewpoint discrimination, which is
presumed impermissible when directed against speech otherwise
within the limitations of the non-public forum.
1.22 The United States Supreme Court has stated that
freedom of speech must be accorded to ideas we hate or sooner
or later freedom of speech will be denied to the ideas we
cherish.
1.23 Religious expression, including a display of a cross,
cannot violate the Establishment of Religion Clause in the
First amendment to the United States Constitution where the
expression is privately sponsored and where the expression
occurs in a traditional or designated public forum, publicly
announced and open to all on equal terms.
1.24 There is no private constitutional right to erect a
structure on public property.
1.25 A post-hoc bootstrapped rationalization or a later
stated cultural or governmental purpose for a government
owned display on governmental property cannot alleviate a
constitutional violation.
1.26 Under the Equal Protection Clause of the United
States Constitution as well as the First Amendment, a
government may not grant the use of a forum to people whose
views it finds acceptable, but deny use to those wishing to
express less favored or more controversial views.
1.27 A display in traditional public forum of a cross
bearing reference to a Bible verse does not constitute
fighting words nor incite imminent lawless action
notwithstanding the organization which sponsored the display
had historically used the cross to frighten, intimidate and
denigrate certain citizens.
1.28 In a non-public forum, a government may control the
access by restricting identifiable subjects or speakers if
the restrictions are reasonable in light of the purpose of
the forum and all surrounding circumstances and the
restrictions are neutral as to the viewpoint of expression of
speech.
1.29 The opening of governmental property for religious
speech or displays does not by itself confer any imprimatur
of governmental approval of any religious sect or practice,
especially where there is public awareness that the forum for
the speech or displays is open on equal terms to all as a
place where expressive conduct may take place.
1.30 The Free Speech Clause of the United States
Constitution does not require a government to allow displays
in a non-public forum, nor does the Establishment Clause
prohibit a government from allowing displays in a non-public
forum.
1.31 By recent United States Supreme Court rulings,
private religious speech is as fully protected as secular
private speech under the First Amendment.
1.32 Government may not grant sectarian religious speech
preferential access to a forum of the government because the
Establishment Clause and the Free Speech Clause of the First
Amendment of the United States Constitution is thereby
violated.
1.33 Religious expression cannot violate the Establishment
Clause of the United States Constitution where the expression
is purely private and occurs in a traditional or designated
public forum, and is publicly announced and open to all on
equal terms.
2. The DeKalb County Commissioners have received requests over
the past many years from public and private groups to use the
Courthouse lawn for gatherings or for displays, including in 1996
requests by the DeKalb County Fair Associations, Inc., a
non-profit corporation that sponsors a county-wide Free Fall and
4-H Fair, the American Legion Post 97 for the Missing In Action,
the United Way of DeKalb County, Indiana, the Auburn Downtown
Merchants Association, the DeKalb County Chapter of the American
Cancer Society, the DeKalb County Citizens for Equal Justice, and
the American Knights of the Ku Klux Klan.
3. In the past twenty years the DeKalb County Commissioners
have allowed to be displayed temporarily on the Courthouse lawn a
sign for Courthouse sidewalk construction, a sign advertising an
antique tractor club, a Winterfest sign, annual Christmas lights,
a snowman and reindeer by a Downtown Merchants Association, and a
Santa Claus Chalet which in the past few years has been allowed
only on the south one-half of the west sidewalk entrance to the
Courthouse to keep it off the Courthouse lawn.
4. The DeKalb County Courthouse is a historic architecturally
designed structure with aesthetic appeal enhanced by the
Courthouse lawn and landscaping.
5. Within the last ten years the DeKalb County Commissioners
decided to preserve the aesthetic quality of the Courthouse and
its lawn with landscaping.
6. The Courthouse lawn has never been an open public forum but
any request for a display or other temporary use of the
Courthouse lawn has been considered by the DeKalb County
Commissioners on a request by request basis, usually approved at
times with reasonable restrictions based upon Courthouse
maintenance needs, and sometimes denied for reasons in the public
interest at the time.
7. Within the past several months in the late summer and fall
of 1996, plans were made and a bid approved to improve the
Courthouse lawn landscape, with about twelve thousand dollars
($12,000.00) on public funds approved for expenditure.
8. The independent contractor for maintenance of the
Courthouse lawn has for several years recommended that the DeKalb
Court Commissioners restrict the use of the Courthouse lawn for
public displays and use, and the DeKalb County Commissioners have
gradually reduced the use of the Courthouse lawn in the past few
years, including denying use for the DeKalb County Fair Board
except for the office trailer.
9. In recent years prior to and including 1996, the DeKalb
County Commissioners have in the past and present year restricted
the time, place, and manner of the display for the DeKalb County
United Fund in order to preserve the aesthetics, environment and
economical maintenance of the Courthouse lawn.
10. No display has been permitted on the DeKalb County
Courthouse lawn for commercial activities or private profit
making business.
11. DeKalb County owns other property, including parking lots,
one of which has been used for two years for public assembly and
display during the DeKalb County Free Fall Fair week.
12. The DeKalb County Commissioners have not spent any public
funds to erect or maintain private displays on the Courthouse
lawn.
13. The DeKalb County Commissioners recognize that the
sidewalks around the Courthouse square and the wide sidewalks
leading to the four entrances to the County courthouse have been
a traditional public forum similar to any public sidewalk.
14. The DeKalb County Commissioners do not believe the
Courthouse lawn has been a traditional public forum but has
allowed small selective portions of the Courthouse lawn
designated from time to time temporarily for display or use by
non-profit public groups in DeKalb County, Indiana.
15. The DeKalb County Commissioners have not sponsored nor
endorsed the message of any display allowed on the Courthouse
lawn by a private non-profit group.
16. The DeKalb County Commissioners have never declared the
Courthouse lawn to be a traditional public forum nor to be a
designated limited public forum and no such declarations appear
in any minutes of the DeKalb County Commissioners.
17. The DeKalb County Commissioners do not now declare
the Courthouse lawn to be a traditional public forum nor to be a
designated limited public forum, and in fact declare the
Courthouse lawn (not the sidewalks) to be a nonpublic forum
unless specifically declared otherwise.
18. The DeKalb County Commissioners declare the lawn of the
Courthouse in DeKalb County to be a non-public closed forum for
governmental use as a lawn for aesthetic and environmental
purposes and for purposes of economically maintaining the
Courthouse lawn.
19. The DeKalb County Commissioners have approved displays in
a limited nonpublic closed forum of six feet wide grass area
along Union Street between 10th and 11th Streets, Auburn,
Indiana, east of the DeKalb County Office Building parking lot,
in DeKalb County, Indiana with the following requirements:
19.01 requests will be considered on an equal basis of first
come, first serve with a signed statement to comply with these
requirements;
19.02 no digging shall be allowed into the area used as
County lawn;
19.03 no more than thirty days shall be allowed for the
display;
19.04 no noise shall emit from the display;
19.05 no larger than six feet long, four feet depth, and
six feet high;
19.06 no pollution of the environment shall emit from the
display;
19.07 no pedestrian activity is allowed on the area used
as County lawn in reference to the display;
19.08 a visible permanent sign marking the area as a
limited forum for private displays with no sponsorship nor
endorsement by DeKalb County, Indiana;
19.09 no County funds shall be used for the display;
19.10 no more than one display shall be allowed to be
displayed per calendar year to any one person, group or
organization;
19.11 no display shall be allowed for commercial
advertising;
19.12 any damage to the County lawn shall be repaired or
the cost of repair reimbursed to the County;
19.13 failure by a display to follow these requirements
shall result in immediate removal of the display and shall
bar future displays by the applicant;
19.14 displays shall be allowed only by advance written
request to the DeKalb County Commissioners;
19.15 the County shall not be responsible for the display
nor liable for any damage caused by the display, if any;
19.16 all displays shall be unattended, free standing, and
shall not require any person to regularly attend the display
or attend to the display;
19.17 no display shall be closer than four feet (4') from
any other display;
19.18 the designated maintenance representative of DeKalb
County shall monitor the application of these restrictions.
19.19 the DeKalb County Commissioners shall allow displays
in only this limited specific area of County lawn
approximately six feet (6') wide at the designated location;
19.20 the County Commissioners or their designated
maintenance representative shall determine the location of a
display within the designated area.
19.21 no lighting shall be allowed external to the display
but reasonable internal lighting may be used.
19.22 no such displays shall be allowed from August 15th
to October 15th of each calendar year.
19.23 each applicant shall sign a written statement
agreeing to these requirements prior to the display being set
on the designated area used as County lawn.
20. Effective immediately, the DeKalb County Commissioners
declare the Courthouse lawn as a nonpublic closed forum for
aesthetical and environmental reasons and no displays shall be
allowed on the Courthouse lawn after 1996 and after the
expiration of any existing display as of the date hereof.
APPROVED this 6th day of January, 1997.
The Board of Commissioners of
DeKalb County, State of IN
William C. Ort, President
Connie R. Miles, Vice-President
Don C. Kaufman, Member
ATTEST:
Mary Bowman, Auditor
DeKalb County, Indiana
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