Untitled California Attorney General Opinion ( 1996 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION : No. 96-507
:
of : September 13, 1996
:
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE PHIL HAWKINS, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:
If a school district sells commercial advertising space on a fence surrounding its high
school baseball field, may it refuse to accept an advertisement which contains the Ten
Commandments and identifies the advertising party?
CONCLUSION
If a school district sells commercial advertising space on a fence surrounding its high
school baseball field, it may not refuse to accept an otherwise appropriate advertisement which
contains the Ten Commandments and clearly identifies the advertising party.
ANALYSIS
A school district is selling commercial advertising space on the fence surrounding its
high school baseball field to generate funds for its athletic programs. A business owner offers to
purchase space for a sign which advertises his business and incorporates the Ten Commandments.
The district's policy is to permit the display of signs containing purely "commercial speech,"
involving the offering of goods or services. Advertisements for goods or services are prohibited if
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they contain any religious teachings or doctrines. The advertisement containing the Ten
Commandments was therefore disallowed. Does the district's action comport with the United
States and California Constitutions? We conclude that it does not.
A school district may undoubtedly refuse to permit any advertising on its baseball field
fence. That is the typical situation today for high schools located throughout the state. Once a
district allows a certain type of speech to be displayed, however, First Amendment principles must
be examined.
The First Amendment of the United States Constitution provides in part: "Congress
shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech ... ."1 This constitutional safeguard is made applicable to the
states through the Fourteenth Amendment. (Abington School Dist. v. Schempp (1963) 374 U.S.
203, 215.) Before determining whether the school district may reject the advertisement in
question, we stop to consider whether, in light of the separation of church and state principle of the
First Amendment, the school district may accept the advertisement.
Preliminary Constitutional Considerations
1. The Establishment Clause of the United States Constitution
The school district has in effect created an advertising opportunity for private enterprise
that is akin to the sale of advertising space in programs distributed at school-sponsored athletic
events. Businesses offering a wide variety of products and services might find it advantageous to
use the fence or wall surrounding a high school baseball field or other sports facility to engage in
advertising. Revenue generated from this advertising space would be used to support school
athletic programs. Would it offend the Establishment Clause of the First Amendment if, in this
context, the school district were to accept business advertisements containing religious material?
The "[U.S. Supreme] Court's Establishment Clause cases ... hold that a policy will not
offend the Establishment Clause if it can pass a three-pronged test: ``First, the [governmental
policy] must have a secular legislative purpose; second, its principal or primary effect must be one
that neither advances nor inhibits religion ... ; finally, the [policy] must not foster "an excessive
1
Similar to the federal Constitution, subdivision (a) of section 2 of article I of the California Constitution states:
"Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this
right. A law may not restrain or abridge liberty of speech or press." While the California Constitution has been construed as
being more protective of First Amendment rights than the federal Constitution (Spiritual Psychic Science Church v. City of
Azusa (1985) 39 Cal.3d 501, 519; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 903, 907-910; Wilson v.
Superior Court (1975) 13 Cal.3d 652, 658; Women's Internat. League Etc. Freedom v. City of Fresno (1986) 186 Cal.App.3d
30, 37-38); Savage v. Trammell Crow Co., Inc. (1990) 223 Cal.App.3d 1562, 1572-1573; see also U.C. Nuclear Weapons
Lab Conversion Project v. Lawrence Livermore Laboratory (1984) 154 Cal.App.3d 1157, 1164-1165; 75 Ops.Cal.Atty.Gen.
232, 238 (1992)), the "power to impose restrictions on [expressive] activity is nonetheless measured by federal constitutional
standards."
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government entanglement with religion."'" (Widmar v. Vincent (1981) 454 U.S. 263, 271, quoting
Lemon v. Kurtzman (1971) 403 U.S. 602, 612-613; see also, 76 Ops.Cal.Atty.Gen. 52, 55-59,
(1993).) Here, it is evident that the advertising forum serves a secular purpose by generating
additional revenues for school activities. The principal or primary effect of the forum is to
promote local business enterprise generally, not to advance or inhibit religion. It is possible that a
religious group might derive some benefit from a religious message in the advertising, but "a
religious organization's enjoyment of merely ``incidental' benefits does not violate the prohibition
against the ``primary advancement' of religion." (Widmar v. Vincent, supra, 454 U.S. 263, 273,
quoting Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 771.) The advertising
space is available to commercial advertisers generally, all of whom must pay for the privilege of
having their respective signs posted. The appearance of the advertiser's name on the sign would
serve to dispel any notion that the school district is endorsing the religious message contained in the
ad. At least in the absence of empirical evidence that religious messages will dominate the
advertising forum, we may conclude that the advancement of religion would not be the forum's
primary effect. (See Widmar v. Vincent, supra, 454 U.S. 263, 274-275.) Finally, as the religious
material is merely incorporated into the advertisement by a business and is not presented by a
religious organization, it is difficult to argue that the forum involves any government entanglement
with religion, let alone one that is excessive. There is no subsidization of religious activity and no
church sponsor, just an arm's length transaction between the district and a private business entity
whose advertising happens to contain a religious message. The courts have repeatedly concluded
that such arm's length transactions do not involve excessive entanglement with religion. (76
Ops.Cal.Atty.Gen. 52, 59, supra.) We therefore conclude that the district may accept the
advertisement in question without violating the Establishment Clause of the First Amendment.
2. The California Constitution
Article I, section 4 of the California Constitution provides that: "Free exercise and
enjoyment of religion without discrimination or preference are guaranteed .... The Legislature shall
make no law respecting an establishment of religion." California courts have not held that Art. I, '
4 is broader than the Establishment Clause of the First Amendment simply because of the
additional language regarding "preference." (See Sands v. Morongo Unified School District (1991)
53 Cal.3d 863; Fox v. City of Los Angeles, 22 Cal.3d 792, 796 (1978); Feminist's Womens' Health
Center v. Philibosian, 157 Cal.App.3d 1076, 1092 (1984).) Therefore, as indicated above, we see
no basis for an argument that the advertising program would favor or prefer any individual religion
or religion as a whole.
The California Constitution also contains another provision restricting governmental
involvement in religion. Article XVI, section 5 provides in part that:
"Neither the Legislature, nor any county, city and county, township, school
district, or other municipal corporation, shall ever make an appropriation, or pay from
any public fund whatever, or grant anything to or in aid of any religious sect, church,
creed, or sectarian purpose, or help to support or sustain any school, college, university,
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hospital, or other institution controlled by any religious creed, church or sectarian
denomination whatever; nor shall any grant or donation of personal property or real
estate ever be made by the state, or any city, county, town, or other municipal
corporation for any religious, creed, church, or sectarian purpose whatever. ..."
This provision has been interpreted to "ban any official involvement, whatever its form,
which has the direct, immediate, and substantial affect of promoting religious purposes."
(California Teachers' Association v. Riles, (1981) 29 Cal.3d 794, 806.) However, it has never
been interpreted to prohibit a religious institution from receiving indirect, remote, and incidental
benefits from a statute which has a secular primary purpose. (California Educational Facilities
Authority v. Priest (1974) 2 Cal.3d 593, 605.)
Here the benefit derived from advertising at the athletic facility does not necessarily
inure to a religious institution and is, at most, an indirect, remote or incidental benefit for such an
institution. We conclude that neither article I, section 4 nor article XVI, section 5 would prevent
the district from accepting the paid advertisement in question for display on the fence surrounding
the school athletic facility.
Having determined that neither the Establishment Clause nor any provision of the State
Constitution stands as an impediment to the school district's acceptance of the advertisement in
question, we now turn to the central issue of whether the district may nonetheless reject the
advertisement because of its religious content. We begin this phase of our inquiry by identifying
the nature of both the speech involved and the forum in which the advertising takes place.
Type of Speech Involved
The school district's policy is to allow only purely commercial speech to be placed on
the baseball field fence. We recognize that the display of a religious doctrine, even though
contained in an otherwise commercial advertisement, may have a sectarian purpose in addition to
its secular purpose. However, we need not consider here whether any sectarian purpose informs
the advertiser's decision to include the Ten Commandments. It is enough to note that many
business owners find it important to convey the notion that they operate their respective businesses
on the basis of certain religious/moral beliefs or principles. 2 Thus we do not view the mere
presence of the Ten Commandments in the advertisement in question as removing the ad from the
realm of commercial speech. 3 Commercial speech is protected by the First Amendment if it
2
One has only to take note of the ubiquitous Christian "fish" symbol in Yellow Page advertisements and elsewhere to
see that this is true.
3
In Board of Trustees of the State University of New York v. Fox (1989) 492 U.S. 469, the Court considered a state
university regulation which prohibited the operation of private commercial enterprises in student dormitories. The specific
activity in question was the sale of Tupperware products in the context of presentations which involved some discussion of
home economics. In finding the presentations to be commercial speech, the Court stated:
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concerns lawful activity and is not misleading. (44 Liquormart, Inc. v. Rhode Island (1996) ___
U.S. ___, 134 L.Ed 2d 711, 723-726; Central Hudson Gas & Electric Corp. v. Public Service
Comm'n of New York (1980) 447 U.S. 557, 566.)4 We assume both of those conditions to be the
case here.
Type of Forum Involved
The district's ability to limit the subject matter of the speech depends in part on whether
the fence constitutes a "public forum" for purposes of the First Amendment. In 75
Ops.Cal.Atty.Gen., supra, at 235-238, we concluded that only a limited area on school property
required to be made a "civic center" under the Civic Center Act (Ed. Code, '' 40040-40048; see
American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 208; Danskin v. San
Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, 540; Goodman v. Board of Education (1941) 48
Cal.App.2d 731, 734-738) constitutes a "public forum" for First Amendment purposes. Other
school property, such as a baseball field fence, would not constitute a public forum under our 1992
analysis. Our prior conclusion is well supported by a long line of federal and state cases holding
that specified areas are not public forums. (See, e.g., International Soc. for Krishna
Consciousness, Inc. v. Lee (1992) 505 U.S. 672 [airport terminal]; U.S. v. Kokinda (1990) 497 U.S.
720 [post office sidewalk]; Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37[school district's internal mail system]; Lehman v. City of Shaker Heights (1974) 418 U.S. 298[space for advertising on city buses]; State of Tex. v. Knights of Ku Klux Klan (5th Cir. 1995) 58
F.3d 1075 [space for advertising adopt-a-highway sponsor on highway sign]; Planned Parenthood
v. Clark County School Dist. (9th Cir. 1991) 941 F.2d 817 [space for advertising in high school
athletic event program]; Clark v. Burleigh (1992) 4 Cal.4th 474 [space for candidates' statements in
voter's pamphlet]; Women's Internat. League etc. Freedom v. City of Fresno, supra, 186
Cal.App.3d 30 [space for advertising on city buses].)
"Including these home economics elements no more converted AFS presentations into
educational speech, than opening sales presentations with a prayer or a Pledge of Allegiance
would convert them into religious or political speech. ... We discuss this case, then, on the basis
that commercial speech is at issue." (Id, at pp. 474-475.)
4
If public property were not involved, the protection afforded the commercial speech at issue would have been
determined in accordance with the following analysis:
"In commercial speech cases, then, a four-part analysis has developed. At the outset, we
must determine whether the expression is protected by the First Amendment. For commercial
speech to come within that provision, it at least must concern lawful activity and not be
misleading. Next, we ask whether the asserted governmental interest is substantial. If both
inquiries yield positive answers, we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is necessary to serve
that interest." (Ibid.)
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In Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 802-804, the
court explained:
"The government does not create a public forum by inaction or by permitting
limited discourse, but only by intentionally opening a nontraditional forum for public
discourse. [Citation.] Accordingly, the Court has looked to the policy and practice of
the government to ascertain whether it intended to designate a place not traditionally
open to assembly and debate as a public forum. [Citation.] The Court has also
examined the nature of the property and its compatibility with expressive activity to
discern the government's intent. . . ."
"Not every instrumentality used for communication . . . is a traditional public
forum or a public forum by designation. [Citation.] ``[T]he First Amendment does not
guarantee access to property simply because it is owned or controlled by the
government.' [Citation.] We will not find that a public forum has been created in the
face of clear evidence of a contrary intent, [citation], nor will we infer that the
government intended to create a public forum when the nature of the property is
inconsistent with expressive activity. [Citation.] In Perry Education Assn. we found
that the School district's internal mail system was not a public forum. In contrast to the
general access policy in Widmar, school board policy did not grant general access to the
school mail system. The practice was to require permission from the individual school
principal before access to the system to communicate with teachers was granted.
Similarly, the evidence in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974),
revealed that the city intended to limit access to the advertising spaces on city transit
buses. It had done so for 26 years, and its management contract required the managing
company to exercise control over the subject matter of the displays. Id., at 299-300.
Additionally, the Court found that the city's use of the property as a commercial
enterprise was inconsistent with an intent to designate the car cards as a public forum."
Here the baseball field fence is not intended to be used for indiscriminate expressive
activity but rather solely for commercial advertisements permitted by the school district to generate
revenues for its athletic programs. Hence it may be viewed as a "nonpublic forum" for First
Amendment purposes.5 The consequence of such determination is that the school district may
5
In Clark v. Burleigh, supra, 4 Cal.4th at 483, footnote 9, the court explained the meaning of the term "nonpublic
forum":
"Although it may be convenient shorthand, the phrase ``nonpublic forum' is somewhat
misleading. Property in this category is not ``nonpublic' in the sense that it is privately owned; it
remains at all times public property either owned or controlled by the government. Nor is the
property a ``forum' in the sense of a meeting place or medium for open discussion; on the
contrary, it is precisely because it is not such a meeting place or medium that the government can
lawfully close it to such discussion. In short, a ``nonpublic forum' is simply public property that
is not a public forum by tradition or design."
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limit the content of the signs on the fence as long as the restrictions are "reasonable" and viewpoint
neutral. (See Lamb's Chapel v. Center Moriches Union Free School Dist. (1993) 508 U.S. 384,
392-393; International Soc. For Krishna Consciousness, Inc. v. Lee, supra, 505 U.S. at 683-685;
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., supra, 473 U.S. at 806; Perry Ed. Assn. v.
Perry Local Educators' Assn., supra, 460 U.S. at 49; Clark v. Burleigh, supra, 4 Cal.4th at 483.)
Reasonableness and Viewpoint Neutrality
Given the existence of a nonpublic forum, i.e., the school district did not intend to
create advertising space for indiscriminate use by the advertising public, we must determine
whether the school district's rejection of advertising containing the Ten Commandments is
reasonable and viewpoint neutral. As stated in Cornelius v. NAACP Legal Defense & Educational
Fund, Inc., supra 473 U.S. 788:
"Control over access to a nonpublic forum can be based on subject matter and
speaker identity so long as the distinctions drawn are reasonable in light of the purpose
served by the forum and are viewpoint neutral." (Id., at p. 806.)
In several cases involving a nonpublic forum, the courts have found certain advertising
to have been reasonably rejected by the public authority. In Planned Parenthood v. Clark County
School Dist., supra, 941 F.2d. 817, the court found that "the school district's policy of not
publishing advertisements that are controversial, offensive to some groups of persons, that cause
tension and anxiety between teachers and parents and between competing groups such as [Planned
Parenthood] and pro-life forces' is a reasonable one." (Id., at pp. 829-830.) Among the school's
legitimate concerns in this regard were "the possible perception of sponsorship and endorsement" of
one side of a controversial issue and the possibility of "being forced to open up school publications
to organizations having views competing with those of Planned Parenthood" if it were to publish
the proffered advertisement. (Id., at p. 830.) The court noted that in Perry Education Assn. v.
Perry Local Educator's Ass'n, supra, 460 U.S. 37, 52, the school district's policy of excluding a
non-certified union from the school's internal mail facilities" prevented the system from becoming a
battlefield for inter-union squabbles." In State of Texas v. Knights of the Ku Klux Klan, supra, 58
F.3d 1075, 1079, the court determined that it was reasonable for the state to deny the KKK's
application to adopt a particular highway as part of the state's Adopt-a-Highway Program, where the
highway led to a recently desegregated housing project and the KKK had evidenced an intent to use
the program for purposes of intimidation and as a means of inciting tension and possibly even
violence. And in Lehman v. Shaker Heights, supra, 418 U.S. 298, the public transit authority was
held to have reasonably prohibited campaign signs from advertising space in its transit system
vehicles, even though it permitted commercial signs in general. There the court treated political or
public issue matters as a distinct subject of advertising. (Id., at pp. 303-304.)
While a school district may have a legitimate basis for proscribing political advertising
at certain times and places (see 77 Ops.Cal.Atty.Gen. 56 (1994)) or rejecting an advertisement
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because of its controversial nature or provocative content, we do not find reasonable justification
for a rejection of an otherwise appropriate advertisement which contains the Ten Commandments.
In the first place, there is little chance that the school may be seen as endorsing the
religious views expressed in the advertisement since we have posited that the names of advertiser's
business are prominently displayed on the sign and the sign would appear alongside others in an
area clearly set aside for commercial messages. High school students are sufficiently mature to
take into account the context and content of billboard-type messages and to distinguish them from
the state sponsored curriculum. In this regard we note that the great religions of the world and their
belief systems are a common subject of study in history classrooms at the high school level.
Unlike the blackboard in a classroom, commercial advertising space on a fence
surrounding the high school baseball field is not logically associated with the views of the teacher.
Even if the baseball field were to be viewed as the coach's classroom, high school athletes would
surely know that the advertiser, who is identified on the sign, does not speak for the coach. Nor
can the spectators at a high school baseball game be considered a captive audience. Perhaps
parents and siblings of the players may feel compelled to attend the games, but being at a baseball
park is not like being in the close confines of a classroom or a transit system vehicle. The focus of
the spectator is the action on the field; a spectator may easily avert his gaze from any particular
advertisement at a ballpark, just as one might normally do to avoid looking at a banner supporting
the opposing team.
Second, we observe that a ban on advertisements which contain religious doctrine or
teachings is, in effect, a policy which precludes a religious perspective in advertising. To deny
business owners the ability to advertise their products and services from a religious perspective is to
discriminate against advertising based on its viewpoint. For example, under their rule, the school
district would apparently accept an advertisement from the local scouting council that says "Join the
Girl Scouts," but reject the same advertisement if it also displayed the Girl Scout Oath, merely
because of the presence of the word "God." In effect, this would constitute government preference
for secular expression over religious expression. "[T]he First Amendment forbids the government
to regulate speech in ways that favor some viewpoints or ideas at the expense of others." (City
Counsel of Los Angeles v. Taxpayers for Vincent (1984) 466 U.S. 789, 804.) Any prohibition of
religious oriented advertising where other advertising is permitted is inherently non-neutral with
respect to viewpoint. (See Church on the Rock v. City of Albuquerque (10th Cir. 1996) 84 F.3d
1273, for a discussion of the distinction between content discrimination and viewpoint
discrimination.)
As stated in Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. 788:
"Although a speaker may be excluded from a nonpublic forum if he wishes to
address a topic not encompassed within the purpose of the forum ... the government
violates the First Amendment when it denies access to a speaker solely to suppress the
point of view he espouses on an otherwise includible subject." (Id, at p. 806.)
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As previously determined, the advertisement involved here is, notwithstanding its religious content,
commercial speech and therefore within the purpose of the forum. We are not presented with the
advertising of a product which may not be purchased legally by high school age students (e.g.,
tobacco products or alcoholic beverages) or a service which is a matter of considerable controversy
among parents and educators (see e.g., Planned Parenthood v. Clark County School District, supra,
941 F.2d 817).
Since the displayed religious doctrine does not, in these circumstances, create an
Establishment Clause6 problem, and since its sponsorship and import are highly unlikely to be
misconstrued by students at the high school level, we conclude that it would be unreasonable for a
school district to reject an otherwise acceptable advertisement which contains the Ten
Commandments, and further that it would be an impermissible form of viewpoint discrimination
for the district to do so. Therefore, under the First Amendment, a school district which sells
commercial advertising space on a fence surrounding its high school baseball field may not refuse
to accept an otherwise appropriate advertisement which contains the Ten Commandments and
clearly identifies the advertising party.
*****
6
"[T]o discriminate against a particular point of view ... would ... flunk the test ... [of] Cornelius, provided that the
defendants have no defense based on the establishment clause." (Lamb's Chapel v. Center Moriches Union Free School
District, supra, 508 U.S. at 394, quoting May v. Evansville-Vanderburgh School Corp. (7th Cir. 1986) 787 F.2d 1105, 1114.)
9. 96-507