Winter solstice display to be erected at the state Capitol.

LITTLE ROCK — Secretary of State Charlie Daniels violated free speech rights when he rejected a “winter solstice” display at the state Capitol by a group opposed to the nativity scene displayed annually at Arkansas’ seat of government, a federal judge ruled today.

U.S. District Judge Susan Webber Wright’s ruling cleared the way for the display proposed by the Arkansas Society of Freethinkers.

The Arkansas chapter of the American Civil Liberties Union filed a federal lawsuit after Daniels rejected the group’s written application to put up a display that would describe the meaning and history of the winter solstice.

The group had asked for an expedited hearing so it could erect the display before the winter solstice on Dec. 21. Freethinkers member Mark Love said his organization plans to put up the display Wednesday or Thursday.

“We like the outcome. We wanted to be included in the holiday season and we are,” Love said.

He said his group was not anti-Christian or anti-Christmas.

“No, this was about being included in the holiday … why not make the holiday time more inclusive, not less,” Love said.

Daniels told reporters after the hearing that his office would work with the group.
“We will comply with the order,” he said.

During the hearing, Daniels testified that he denied the group’s request because the display “did not go along with the Christmas theme or holiday theme.” He also said he didn’t like temporary displays in general.

“It didn’t look appropriate to me that it belonged on the Capitol grounds,” the secretary of state said.

The freethinkers first applied to put up a winter solstice display at the Capitol last year and were turned down. Daniels said at the time the proposed exhibit failed to maintain the order and decorum of the holiday season.

The organization submitted an application in October that met all of Daniels’ requirements, but still the application was rejected.

During Monday’s hearing, it was revealed that the secretary of state’s office has a written policy that allows anyone to apply to put up a display at the Capitol. The policy was established by Daniels’ predecessor, Sharon Priest. The nativity scene was exempt from the application process because it has been a temporary holiday display on the Capitol grounds since the 1940s.

No one had ever applied for permission to erect a temporary holiday display until the freethinkers, according to testimony.

“This was a massive violation of the First amendment,” said ACLU attorney John Burnett, adding the nativity scene “existed outside the scope of these particular guidelines.”
In her ruling, Wright noted that by allowing a nonprofit organization to erect a nativity scene annually, the secretary of state had “designated a public forum,” and that the freethinkers “have free speech rights and did follow the policy.”

“The court finds this policy is not content neutral as applied and it permits a Christmas display and denies another view point,” she said, adding the policy was “narrowly tailored.”

“This is a designated public forum for that type of speech,” she said.

Wright also said Daniels’ argument that the freethinkers display was not aesthetic enough for the holidays did not make sense because the nativity scene is made out of wood and is completely opposite from the festive decorations inside the state Capitol.
She said the freethinkers display would fit well near the nativity scene, and she expressed some concern that the secretary of state’s office may soon be inundated with requests for other temporary displays in the area.

“There might be enough room,” she said.

Rita Sklar, executive director of the ACLU chapter in Arkansas, told reporters after the hearing she was pleased with the ruling.

“I don’t know of any other state capitol that has set up a public forum the way this state had done,” she said. “Again, they didn’t have to do that, they didn’t have to invite anybody, but they did, and that set up a forum so that anybody with any idea … any time of year.”