Board of Trustees of Scarsdale v. McCreary

PETITIONER: Board of Trustees of Scarsdale
LOCATION: New Mexico State Police Headquarters

DOCKET NO.: 84-277
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 471 US 83 (1985)
ARGUED: Feb 20, 1985
DECIDED: Mar 27, 1985

Marvin E. Frankel - on behalf of the Petitioners
Marvin Schwartz - on behalf of the Respondents

Facts of the case


Media for Board of Trustees of Scarsdale v. McCreary

Audio Transcription for Oral Argument - February 20, 1985 in Board of Trustees of Scarsdale v. McCreary

Warren E. Burger:

I think you may proceed whenever you are ready, Mr. Frankel.

Marvin E. Frankel:

Mr. Chief Justice, and may it please the Court:

In 1981 in Widmar against Vincent, this Court held that a public university, the University of Missouri, where it had opened its meeting rooms to over 100 various groups of students for various kinds of speech and discussion was forbidden by the free speech clause to deny such a meeting room to a group of students, a cornerstone group, wishing to hold prayer and religious discussion meetings.

In this case here on certiorari to the Second Circuit, that Court has held that the Village of Scarsdale in Westchester, under the rule of Widmar and Vincent, is compelled or required to allow a group of christian churches and their christian adherence to place and leave a creche or nativity scene in a small public park in the center of the village for a period of two weeks or so around the Christmas season.

Sandra Day O'Connor:

Mr. Frankel, I am concerned about your interpretation of the Court of Appeals' opinion.

It seemed to me at least in looking at it the Court of Appeals said that the city could adopt reasonable time, place and manner of restriction.

Presumably those restrictions might incorporate a provision that unattended displays will not be permitted in the park.

Do you think that such a restriction would be one that the city could properly adopt under that opinion?

Marvin E. Frankel:

Your Honor, I think there are various ways the municipality could approach this problem.

Sandra Day O'Connor:

Well, do you think that that opinion would permit the city to adopt the regulation that I suggest?

Marvin E. Frankel:

Very possibly, Your Honor.

Sandra Day O'Connor:

It isn't true that the Court of Appeals has required the city to permit unattended displays such as a creche.

Marvin E. Frankel:

Your Honor, it is as true that there is such a requirement here as it was in Widmar against Vincent which has been applied by the Circuit to this case.

When the case went back to the University of Missouri, presumably they could adopt time, place and manner regulations.

For example, they could have abolished their meeting rooms.

What we say is in this case that what Scarsdale has done without time, place and manner regulations so-called is constitutional; that there is no such thing required under the First Amendment as an open public forum for unattended statues, symbols, structures, and signs, and that therefore Widmar and Vincent does not apply to this case; that the Circuit should be reversed as things stand under the way that Scarsdale has run its parks up until now.

Sandra Day O'Connor:

Do you think that the display of a creche or a cross or something symbolic of that kind is symbolic speech?

Marvin E. Frankel:

Yes, Your Honor.

We have never denied that.

My friend says we dispute it.

We not only agree to it, Your Honor, but we embrace it as I hope to show in the argument as I might mention right now.

This is a free speech case.

It goes off on the free speech clause.

At some earlier point, there was a free exercise claim which was rejected properly and properly abandoned.

Under this conception of the free speech clause, if Scarsdale in its existing situation with such regulations as it has and doesn't have must allow a creche, then it must allow a sign saying Vote Republican, it must allow a swastika, it must allow a sign saying Support Planned Parenthood.

Sandra Day O'Connor:

Well, I suppose if it is speech, we don't normally suppress it on the grounds that some people find it offensive, do we?

Marvin E. Frankel:

We don't normally, Your Honor, provided that you are dealing with a public forum where people are allowed to express themselves in the manner in question.

Sandra Day O'Connor:

Well, is the city park a public forum?

Could anybody go out there and speak in favor of Nazism or some other offensive topic?

Marvin E. Frankel:

Yes, Your Honor.