were defined as to the particular means of communication sought rather than by identifying the property at issue as owned by the government. They claim that where the use of the relevant forum is limited and requires the permission of the government, the policy and practice of the government must be examined to ascertain whether the government intended to designate the property in question for public discourse on all or on some limited subjects. See Cornelius, supra, 105 S. Ct. at 3449. If permission is not merely routine, then selective access, argues the government, does not create a public forum.
Applying this analysis to the case here, the government argues the the Pageant is unquestionably not a limited public forum. That is, the Pageant is not open to all speakers even on the general subject of Christmas. Defendants argue that the fact that the Park Service holds a public meeting prior to the Pageant does not make the Pageant itself into a public forum. The preliminary meeting may be public, they concede, but even so, the Pageant is not. They distinguish the entertainment portions of the Pageant (which arguably have included non-traditional fare) from the displays which are fixed and thus subject to different regulation by the Park Service. They argue that the government has consistently limited the physical features of the Pageant to traditional Christmas displays.
Defendants further support their argument with a line of cases dealing with the Pageant, itself. Courts have upheld the right of the Park Service to designate the area of the Ellipse for the particular purpose articulated and to keep others (e.g., those who want to conduct a demonstration) out. Women Strike for Peace, supra; Sanders v. United States, 518 F. Supp. 728 (D.D.C. 1981), affd. mem., 679 F.2d 262 (D.C. Cir. 1982).
In a nonpublic forum, distinctions need only be reasonable and viewpoint neutral. Perry, supra, 460 U.S. at 46. Defendants thus agree that even if the Pageant is a nonpublic forum, it cannot be used by the government to discriminate against individuals according to their point of view. Cornelius, supra, 105 S. Ct. at 3454. Defendants emphasize that in nonpublic forum analysis, the availability of alternate fora is an important factor in assessing the reasonableness of the government's regulation. Cornelius, supra, 105 S. Ct. at 3453; Perry, supra, 460 U.S. at 53. Here, argue defendants, plaintiffs have been offered an opportunity to apply for access to another site at the Ellipse. They also claim that the government can legitimately seek to avoid the appearance of favoring any political points of view in a nonpublic forum. Cornelius, supra, 105 S. Ct. at 3453.
Defendants next demonstrate that exclusion of plaintiffs' statue was viewpoint neutral. They argue that plaintiffs' claims of discrimination are mere unsupported speculation. Defendants appeal to a common sense view of the statue, arguing that although the plaintiffs' message may be traditional, the symbol embodied in the statue obviously is not. Defendants argue that the traditional items included in the Pageant are a reindeer, a yule log, a creche, and a number of trees. The statue, they argue, is simply different. They claim that the Park Service's decision is consistent with the law of the Circuit, which allows the Service to "preempt" a portion of the Ellipse, so long as the other part of the park is available for all sorts of public views. Women Strike for Peace, supra, 472 F.2d at 1293 (Wright, J., concurring); 1294, 1303-04 (Leventhal, J., concurring); 1304 (Robb, J., concurring). Defendants next go through each basis for rejection and argue that it is reasonable. All that is required, they conclude, is that the government reach a reasonable conclusion that the desired speech is inconsistent with the purpose of the forum. Here, they argue, the proffered statue would damage the "traditional" theme, and politicize and commercialize the Pageant.
Defendants also answer a Fifth Amendment claim raised by plaintiffs. Plaintiffs argue that their contemporary creche cannot be excluded so long as a traditional creche is in the Pageant. Defendants answer that because there is no First Amendment right to access to the Pageant, there is no denial of a fundamental right. See Perry, supra, 460 U.S. at 54 (citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973)). Consequently, the decision to deny access must only have a rational basis, which they claim they have demonstrated.
As the parties have indicated, the key to analyzing the merits of this controversy is to determine the type of forum at issue. Here, as the government argues, the recent decisions in Cornelius, supra, and Perry, supra, are crucial. The parties agree that the relevant forum here is the Pageant itself, not the entire Ellipse. Determination of the type of forum under Cornelius and Perry, however, requires that the forum be defined narrowly as to the particular means of access sought. 105 S. Ct. at 3449, 460 U.S. at 46-47. At this preliminary stage of factual development, it appears that the Park Service has established different means of access for (1) the permanent displays of Christmas artifacts and (2) the entertainment element of the Pageant, a greater number and variety of individuals and groups being permitted access to the entertainment forum. See Plaintiffs' Exhibits 2-C, 2-D, 2-E. Because plaintiffs seek access as a permanent Pageant display (as distinguished from access to the entertainment phase), the forum for displays appears to be the forum to be considered.
Once the scope of the forum is defined, Cornelius and Perry provide further guidance in determining the nature of the forum. The Cornelius case dealt with the Combined Federal Campaign. The Court there found that the government did not intend to open the forum to all charities, but had consistently limited the drive to "appropriate" charities, and had required permission to participate. The Court concentrated its analysis on whether the government intended to create a forum for expressive activity, or for some other purpose. The Court undertook a similar analysis in Perry.
Here, the facts as they appear at this preliminary stage indicate that the Park Service solicits only suggestions as to possible displays, and has consistently maintained the power to decide what displays are appropriate to the Pageant. Affidavit of Manus J. Fish, Jr. at paras. 10, 11 (filed Dec. 9, 1985). The facts on the record at this time indicate that the Park Service has designated the Pageant as a forum for Christmas displays that it views as "traditional," not a forum for all expression on the subject of Christmas, or for all displays on that subject. Moreover, it appears that the Park Service carefully selects only a few displays and does not routinely accept displays from those who tender them. It thus appears at this stage of the litigation that the forum for Pageant displays is nonpublic.
In its nonpublic forum, the Park Service's decision to deny plaintiffs access must be reasonable and viewpoint neutral. Perry, supra, 460 U.S. at 46. As to whether the Park Service has made a reasonable determination that plaintiffs' proffered statue is nontraditional, the decision of the Supreme Court in Lynch v. Donnelly, supra, is instructive. The Court there recognized the existence of the Establishment Clause, yet found that certain state sponsorships of displays with "religious implications," 104 S. Ct. at 1363, have become such a part of our tradition that they do not violate this clause of the Constitution. The Court explained its distinction more by example than by principle, and it is thus this distinction by example which must be applied here.
The Supreme Court listed as items "traditionally associated with Christmas":
a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads 'SEASONS GREETINGS,' and [a] creche . . . consist[ing] of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals.