Findings of Law and Facts Regarding County Property

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

Mary Bowman, Auditor
DeKalb County, Indiana