99-4153, 99-4226 DeBoer, et al. v. Village of Oak Park, et al.

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“We believe that the NDP assembly is a ‘civic program or activity,’ as the Village has defined the term, and that the Village’s denial of the plaintiffs’ application to use the Village Hall constitutes viewpoint discrimination. In adopting the philosophical and theological position that prayer, the singing of hymns and the use of Bible commentary can never be ‘civic,’ the Village has discriminated against the speech of those of its citizens who utilize these forms of expression to convey their point of view on matters relating to government.

“Here, the plaintiffs, having otherwise qualified as a group eligible to use the Village Hall facility for a civic event, cannot be directed by governmental authorities to format their presentation in a way that the government finds suitable. See Hurley, 515 U.S. at 572-75. ‘[A]ll speech inherently involves choices of what to say and what to leave unsaid . . . .’ Pac. Gas & Elec., 475 U.S. at 11 (emphasis in original). Consequently, the speaker has the right to tailor the speech; the one who chooses to speak also chooses what to say. See Hurley, 515 U.S. at 573.

“We agree with the district court’s decision that the ‘benefits the public as a whole’ requirement cannot survive constitutional scrutiny. The Use Policy does not contain any further definition of this phrase to give assistance to the officials who must interpret its meaning. Unlike those regulations that this court has found not to grant unfettered discretion, the Village’s requirement provides no concrete standards or guideposts by which Village officials can gauge whether an event satisfies this precondition to the exercise of First Amendment rights.”

Affirmed in part and reversed in part.

Appeals from the United States District Court for the Northern District of Illinois, Aspen, J., Ripple, J.