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Law School Case Brief

Capitol Square Review & Advisory Bd. v. Pinette - 515 U.S. 753, 115 S. Ct. 2440, 132 L. Ed. 2d 650, 1995 U.S. LEXIS 4465


The right to use government property for one's private expression depends upon whether the property has by law or tradition been given the status of a public forum, or rather has been reserved for specific official uses. If the former, a state's right to limit protected expressive activity is sharply circumscribed. It may impose reasonable, content-neutral time, place, and manner, but it may regulate expressive content only if such a restriction is necessary, and narrowly drawn, to serve a compelling state interest.


A state-owned plaza surrounded the Ohio statehouse. Although it was available for discussion of public questions and for public activities, a group had to submit an application to Petitioners, the Capitol Square Review & Advisory Board(Board) to meet several criteria that were neutral as to the speech content of the proposed use. Although the Board had authorized the state to put up its annual Christmas tree and granted a rabbi's application to erect a menorah, it  denied an application from Respondent Ohio Ku Klux Klan (KKK) to place a cross on the square. The Ohio KKK filed suit in the federal district court, claiming that their Constitutional right to free-speech was violated and sought an injunction requiring the Board to issue the requested permit. The district court issued the injunction, concluding that the Board had failed to show that the display of the cross reasonably could be construed as state endorsement of Christianity. During the pendency of the litigation, the Board permitted the cross to be erected. After the United States Court of Appeals for the Sixth Circuit affirmed, the Board petitioned for certiorari review.


Was the KKK's right to free speech violated when their application to erect a cross on a state-owned plaza was denied?




The United States Supreme Court affirmed, holding that petitioners could not, on the claim of misperception of official endorsement, ban all private religious speech from the public square, or discriminate against it by requiring religious speech alone to disclaim public sponsorship. The Court further determined religious expression could not violate the Establishment Clause where it was purely private and occurred in a traditional or designated public forum, publicly announced and open to all on equal terms.

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