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Judges appear skeptical of Abbott’s censorship of FFRF

FFRF’s “nativity” showing the Founding Fathers looking over the Constitution.

The Freedom From Religion Foundation has said its final piece in its case before an appeals court against the Texas governor’s censorship of its Capitol display.

A district judge had granted FFRF permanent relief last May in its six-year lawsuit challenging Gov. Greg Abbott’s censorship of its Bill of Rights exhibit in the Texas legislative building. U.S. District Court Judge Lee Yeakel ordered declaratory and injunctive relief to ensure that Abbott and the State Preservation Board would not violate FFRF’s free speech rights.

Abbott and the director of the State Preservation Board puzzlingly appealed that decision, however, saying that since the board changed its rules, the case became moot. The rule changes declared that all exhibits placed in the Capitol are now “government speech.” FFRF maintains that the label doesn’t substantively change the fact that private groups and individuals are still permitted to place displays in exhibit areas of the Capitol.

FFRF Associate Counsel Sam Grover in recent oral arguments before the 5th U.S. Circuit of Appeals noted that under the revised rule, groups have placed displays on such topics as pro-marijuana legalization and opposition to mass incarceration in Texas. This speech is incompatible with the government’s contention that the state is crafting the public forum message. The Capitol still has a forum as it did before, Grover contended, it’s just that the governor and Preservation Board would like to continue to censor FFRF’s speech.

Grover’s arguments seemed to strike a chord, as the circuit court judges appeared skeptical of the state’s argument that the case is now moot. Judge Patrick Higginbotham questioned whether the state was successful in converting the private exhibits into expression by the government. He commented, “The problem is whether they have succeeded in making all these publications actually the expression of the state of Texas, as opposed to private individuals.” Judge Jennifer Walker Elrod asked about the displays that are currently allowed in the Capitol, remarking that the state is “still taking all comers” when it comes to requesting the placing of an exhibit.

Here’s more background on the case. FFRF had placed a Bill of Rights “nativity” display in the Capitol building in December 2015 in response to a Christian nativity there. Abbott, as chair of the Preservation Board, while permitting the Christian exhibit, ordered FFRF’s display removed. FFRF won its lawsuit at the district court level in 2018. In April 2020, the 5th Circuit ruled that FFRF was entitled to more permanent, lasting relief than the district court initially awarded, and sent the case back to award such relief. 

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