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521. Capitol Square Review Board v.

Pinetter & Ku Klus Klan

Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), is
a United States Supreme Court case that focused on First Amendment rights and
the Establishment Clause. Vincent Pinette, an active member of the Ku Klux Klan in
Columbus Ohio, wanted to place an unattended cross on the lawn of the Capitol Square
during the 1993 Christmas season. Pinette and his fellow members of the KKK
submitted their request. The advisory board originally denied this request. However,
Pinette and the other members of the Ohio Chapter of the Klan fought this decision in
the United States District Court of Southern Ohio. The court found in favor of the Klan
and the Advisory Board issued the permit. The Board appealed to the United States
Court of Appeals, which affirmed the decision of the district court. The board made one
last petition to the Supreme Court where the decision was made, by a vote of seven to
two, that the Klan was permitted to display the cross at the public forum.
The land in question was the Capitol Square in Columbus, Ohio. The ten acre area had
always been “available for discussion of public questions and for public activities an
advisory board was responsible for regulating public access to the square, and to use
the square a group simply had to submit an application to the board and meet several
criteria that were neutral as to the speech content of the proposed use.” [2] In the past,
the advisory board approved displays had included Christmas trees, menorahs, and
various other religious-based decorations.
Beneath the surface, there was an issue that was more worrisome than the religious
implications of the cross itself. The cross's association with the Ku Klux Klan was a
concern to the State of Ohio. In 1993, racial tensions between whites and blacks in the
United States were high. There were race riots in Los Angeles, the KKK had several
active chapters across the country, and the United States was struggled to maintain
equality and peace for all citizens. These underlying tensions accounted for much of the
conflict in Capitol Square. Allowing the Ku Klux Klan to erect one of their white crosses
on the lawn of the Statehouse in Ohio went much deeper than religion. However, as
recognized by the Justices, “the facts before us and the opinions address only the
Establishment Clause issue, and that is the sole question before us to decide.” The
Advisory Board could do nothing to prevent the Klan from displaying their cross on
state-owned land.

The case surrounded the issue of the interpretation of both the First Amendment and
the Establishment Clause in the United States Constitution. The Capitol Square in
Columbus, Ohio was a state-owned piece of land and any and all unattended displays
had to be approved by the Advisory Board. However, over the years the area had
become a public forum where people were permitted to hold public gatherings and
leave unattended displays that were both secular and religious in nature. The job of the
Advisory Board was to issue permits and regulate the content of the displays that took
place in the Square. They were to make their decisions within the bounds of the First
Amendment and the Establishment Clause. The Establishment Clause states that
Congress cannot make a law “respecting an establishment of religion, or prohibiting the
free exercise thereof,” so the Board had to follow the same protocol in their decisions
as well. The Board denied the Ku Klux Klan’s permit request “on the grounds that the
permit would violate the Establishment Clause,” on the same day that they approved the
display of a menorah on the square. Pinette and the other Klansmen appealed this
decision.
The court held that:

1. Private religious speech is protected under the free speech clause of the First
Amendment
2. Although the state has the right to make content-based restrictions on speech,
the board’s denial of the Klan’s application to display the cross on the statehouse
square was not justified on the grounds of the establishment clause.

Traditionally, the square had been recognized as a public forum by the general
population and because the display of religion was purely private it could not violate the
Establishment Clause. The Advisory Board was still responsible for the content
displayed on the square, but they could not intentionally block a religious display from
being set up.