Imagine a city with two displays in the public square one December: a nativity scene (without plastic elves or talking wishing wells) in one public park, and a "gay pride--stop homophobia display" in a second public park. Both displays provoke complaints--the nativity scene by an atheist such as Mr. Newdow who, when he sees the nativity display, is offended by the religious nature of the display (and feels like an outsider, "not a full member of the political community"); and the gay pride display by an Orthodox Jew whose religious conscience is offended when he sees that display and also feels like an unwelcome outsider and not a respected member of the political community.
The city, wishing to avoid controversy and to offend no one, removes both displays.
Under County of Allegheny, did the city have a duty to remove the nativity display?
But now suppose this--supporters of the gay pride display sue claiming that they are a willing audience for the city's message of gay pride and thus, under Pico and the Free Speech Clause (see p. 1528) of casebook), have a right to "receive" the "information and ideas" expressed by the gay pride display without censorship imposed by the city to satisfy the demands of "hecklers" and others who don't like the message. See Laycock, 118 Harv. L.Rev. at 192: "The Free Speech Clause protects audiences as well as speakers." (citing Pico).
Do the Pls have a good claim? How do you think the Supreme Court would decide this case?
Can it be that the same First Amendment (1) requires the city to remove the first display to protect the interests of those offended, and (2) forbids the city from removing the second display to protect the interest of its willing audience against a heckler's veto? In other words, the city must appease the heckler in one case and is forbidden from appeasing the heckler in the second case.
Does this make sense? Is it fair and just?
If supporters of the gay pride display have a right to "receive" it, do supporters of the Nativity display have a right to "receive" it?
In other words, is the EC being used in the Nativity case to restrict the liberty to receive speech in order to advance the interest of hecklers to censor speech? Again, this is a "partial incorporation" issue.
And since Lemon has been overruled, the Nativity probably is okay under the historical Establishment Clause.
What does Pico say when a city removes a Robert E. Lee display from a public park or public building in response to citizen complaints about Lee's service to the the South in the Civil War?
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