A Tale of Two Statues: Constitutional Issues in Closing a Limited Public Forum

A city in Minnesota decided to create a limited public forum in a park.  Applicants could obtain a permit from the city in order to place a monument in the park.  Two of these permits were issued, but the city voted to close the limited public forum just a few months later.  This raised questions as to the purpose behind closing the limited public forum and whether the city violated the First Amendment.

By: Emily Loftis

Satanic Temple v. City of Belle Plaine, Minnesota, No. 21-3079, 2023 WL 5600301 (8th Cir. 2023)

I.              Introduction

            The First Amendment of the United States Constitution provides robust protections for the freedom of speech and exercise of religion.[1]  It prevents the government from suppressing unpopular speech or ideas.[2]  When the government acts to restrict speech, it often must face a high level of scrutiny.[3]  Expression of unpopular or offensive ideas along with the suppression of those ideas often ignite the passions of people around the country.  This was true when the city of Belle Plaine, Minnesota created a limited public forum for the purpose of honoring military veterans in a city-owned park.[4]

            The city found itself in the national news cycle when it granted permits to erect statutes to both the Veterans Club for a Christian statue and to the Satanic Temple for a Satanic statue.[5]  Protests erupted in the city as a result.[6]  Belle Plaine gained even more attention and a lawsuit when it closed the limited public forum and revoked the permits for the statues before the Satanic Temple ever displayed the statue in the park.[7]  In Satanic Temple, the court considered whether the city’s actions ran afoul of the First Amendment.[8]

II.              Facts and Holding

            The city of Belle Plaine owns the Veterans Memorial Park.[9]  In 2016, the Belle Plaine Veterans Club placed a display of a soldier kneeling in front of a cross in the park.[10]  The city did not give permission for the display.[11]  The Freedom From Religion Foundation complained that the statue violated the separation of church and state soon after the display was erected.[12]  The display was subsequently moved out of the park.[13]  The city decided to create a limited public forum for the purpose of honoring veterans, and it developed an application process for potential displays.[14]  Two permits were granted.[15]  One permit went to the Veterans Club and the other went to the Satanic Temple.[16]

            The Veterans Club placed its Christian display back in the park.[17]  The Satanic Temple planned to create a statute featuring a box with inverted pentagrams on the side and an upside-down helmet on top.[18]  The news of the planned display generated protests, and the city of Belle Plaine attracted unwanted national attention.[19]  The Satanic Temple alerted the city that the statute was ready to be installed in the park but was told to wait to place it.[20]  A short time later, before the Satanic Temple’s statue was placed in the park, the city decided to eliminate the limited public forum.  The Satanic Temple’s statue could no longer be placed in the park, and the Veterans Club had to remove its Christian statue again.[21]

            The plaintiff claimed that the city violated its free exercise and free speech rights guaranteed by the First Amendment, along with equal protection and various state law claims.[22]  The district court dismissed these claims without prejudice.[23]  A Magistrate Judge later denied the plaintiff’s motion to amend its complaint based on timeliness issues, so the Satanic Temple filed a second lawsuit that included the claims that were previously dismissed.[24]  In the second lawsuit, the district court found that the claims were barred by res judicata.[25]  The Satanic Temple appealed the dismissal of its free exercise, free speech, and equal protection claims from the first lawsuit and the res judicata decision from the second lawsuit.[26]

            The Eighth Circuit reviewed both lawsuits and upheld the lower court’s dismissal.[27]  The court decided that the Satanic Temple failed to allege that closing the limited public forum was unreasonable or viewpoint discriminatory.[28]  The Satanic Temple also failed to plead facts showing the city burdened its religious conduct or philosophy, or that it was similarly situated to the Veterans Club but treated differently.[29]  Further, the court found the Magistrate Judge’s denial of leave to amend a complaint to be a final decision on the merits for res judicata purposes, so the second lawsuit was barred.[30]

III.              Legal Background

            The Satanic Temple claimed that the city violated its free exercise and free speech rights guaranteed by the United States Constitution.[31]  These claims were submitted along with an equal protection claim and various claims based on state law.[32]

A.    Free Speech

            The First Amendment protects against laws that infringe upon the freedom of speech and expression.[33]  This protection does not guarantee “the right to communicate one’s views at all times and places or in any manner that may be desired.”[34]  In a free speech analysis, it is important to consider where the speech or conduct is taking place.  The categories that courts use include traditional public forum, designated public forum, limited public forum, and nonpublic forum.[35]

            Here, the parties agree that Veterans Memorial Park was a limited public forum.[36]  In a limited public form, the government may limit “expressive activity to certain kinds of speakers or to the discussion of certain subjects” as long as the restrictions are reasonable and viewpoint neutral.[37]  The government is not required to keep a limited public forum open indefinitely, but when it opens one, it may only place reasonable time, place, and manner restrictions, and content-based restrictions must be narrowly tailored to achieve a compelling government interest.[38]  Closing a limited public forum is different than regulating speech within an open limited public forum.  The government retains the ability to close the limited forum to everyone.[39]

B.    Free Exercise

            The Free Exercise Clause guarantees that there will be “no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[40]  A plaintiff must be able to show that the government has acted to place a substantial burden on their religious practice.[41]  A law burdening the free exercise of religion must be neutral and generally applicable.[42]  If it is not facially neutral and generally applicable, then it must be narrowly tailored and serve a compelling government interest.[43]  Even if the law appears to be neutral and generally applicable, the inquiry does not end there.[44] 

            If the object of the government action is to suppress religion, it must also be narrowly tailored to achieve a compelling government interest.[45]  The object of the city council’s actions may be determined by both direct and circumstantial evidence.[46]  Evidence of discriminatory purpose may include historical background, the specific events leading up to the government action, and statements made by policymakers while carrying out or contemplating the action.[47]

IV.              Instant Decision

            The Eighth Circuit first addresses the free speech claim.  The court noted that when the government creates a limited public forum, any restrictions on speech must be reasonable and viewpoint neutral.[48]  The court concluded that the closure of the limited forum was well within the city’s rights.[49]  The action of closing the forum was viewpoint neutral because it applied to everyone, not just speakers with a certain view.[50]

            Further, the Satanic Temple’s free exercise claim relied on the fact that the Veterans Club had 10 months of display time, while the Satanic Temple never got to display their statue in the park at all.[51]  The court noted this alleged disparity was not due to any government action.[52]  The first time the Veterans Club displayed their statue in the park, it did so without approval.[53]  After approval was given to both the Satanic Temple and the Veterans Club, the Veterans Club had its display ready to place in the park while the Satanic Temple did not.[54]  The fact that the Satanic Temple’s monument was not ready cannot be attributed to the city.[55]

V.              Comment

            The First Amendment provides strong protections for speech, especially and most importantly unpopular speech.  The First Amendment is rooted in the ideals of preventing the tyranny of the majority and promoting the marketplace of ideas.[56]  In this case, the court had to consider whether the First Amendment protected against the closure of a limited public forum after a proposed monument ignited fierce debate and national attention that detracted from the original purpose of the limited public forum.[57]

            Initially, this case seems problematic because some of the facts alleged indicate that the decision to close the limited public forum was motivated by animus against the Satanic Temple.[58]  Members of the city council found the Satanic Temple’s beliefs to be repugnant and wanted to be sure that it would not be able to erect a monument in the park.[59]  This was not enough to create a plausible claim for violation of free speech or free exercise.[60]  The city applied the rules and ordinances equally to all while the forum was open, and when it decided to close the forum, it applied the closure to everyone evenly without singling out a viewpoint or religion.[61]  It is a general principle that the government may close a limited public forum whenever it chooses.[62]

            Free exercise may be violated when a religious practice is burdened and singled out for distinctive treatment either on the face of an ordinance or through a discriminatory object.[63]  The court recognized that the remarks of one or a few legislators cannot be conclusive as to the issue of viewpoint discrimination under the First Amendment.[64]  To find otherwise would be untenable.[65]  Without evidence of some kind of dissimilar treatment or “singling out” under the law, it is not workable to conclude that a law violates the First Amendment simply because of the opinions or intent of a few lawmakers.[66]  If the Satanic Temple could have shown that the government had applied the rules differently to it while the limited public forum was open or that the government had the object of suppressing their religion specifically, the lawsuit could have potentially proceeded.  Despite the comments of some of the lawmakers, the Satanic Temple did not have enough to proceed on their First Amendment Claims.

VI.              Conclusion

            A city may choose to open a limited public forum to allow for the discussion of certain topics.  When it does this, it cannot discriminate on the basis of viewpoint without overcoming the highest level of scrutiny under the First Amendment.  When the government applies the same rules to everyone,and the action is not facially discriminatory, it is difficult to plausibly allege a free speech violation.  This is especially true when the government action in question was closing a limited public forum, something the government generally has the right to do.

The government may also not act to suppress certain religions.  Again, when the government applies the same rules and restrictions evenly to all parties, and the impact is similar, it is difficult to plausibly allege that certain religious conduct has been singled out for distinctive treatment.


[1] See U.S. Const. amend. I.

[2] U.S. Const. amend. I.

[3] 16A Am. Jur. 2d Constitutional Law § 418.

[4] Belle Plaine Allows Satanic Monument In City Park, CBS Minnesota (July, 11, 2017, 6:36 PM), https://www.cbsnews.com/minnesota/news/belle-plaine-satanic-monument/.

[5] Id.

[6]  Christopher Mele, Satanic Temple Sponsors a Veterans Memorial in a Minnesota Town, NY Times (May 8, 2017), https://www.nytimes.com/2017/05/08/us/satanic-temple-sponsors-a-veterans-memorial-in-a-minnesota-town.html; Satanic Temple Sues Belle Plaine Over Proposed Monument, CBS Minnesota (April 28, 2019, 9:15 PM), https://www.cbsnews.com/minnesota/news/satanic-temple-sues-belle-plaine-over-proposed-monument/.

[7] Satanic Temple v. City of Belle Plaine, Mn, 80 F.4th 864, 867 (8th Cir. 2023).

[8] Id.

[9] Id.

[10] Brief for Appellant at *20-22, Satanic Temple v. City of Belle Plaine, Mn, 80 F.4th 864 (8th Cir. 2023), (No. 21-3079), 2022 WL 333766, at *4.

[11] Brief for Appellee at *2, Satanic Temple v. City of Belle Plaine, Mn, 80 F.4th 864 (8th Cir. 2023), (No. 21-3079), 2022 WL 1062369 at *1.

[12] Brief for Appellant, supra note 10, at *21.

[13] Brief for Appellee, supra note 11, at *3–13.

[14] Id. at *5–13.

[15] Id.

[16] Id.

[17] Satanic Temple v. City of Belle Plaine, Mn, 80 F.4th 864, 867 (8th Cir. 2023).

[18] Id.; CBS Minnesota, Belle Plaine Allows Satanic Monument In City Park, (July, 11, 2017, 6:36 PM), https://www.cbsnews.com/minnesota/news/belle-plaine-satanic-monument/.

[19] Satanic Temple, 80 F.4th at 867.

[20] Brief for Appellant, supra note 10, at *27.

[21] Satanic Temple, 80 F.4th at 867.

[22] Satanic Temple v. City of Belle Plaine, Mn, 475 F. Supp. 3d 950, 957 (D. Minn. 2020).

[23] Id. at 966.

[24] Satanic Temple, 80 F.4th at 867.

[25] Id.

[26] Id.

[27] Id. at 871.

[28] Id. at 868.

[29] Id. at 869.

[30] Id. at 871.

[31] Id. at 867.

[32] Id.

[33] U.S. Const. amend. I.

[34] Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).

[35] 16A Am. Jur. 2d Constitutional Law § 542.

[36] Satanic Temple, 80 F.4th at 868.

[37] Bowman v. White, 444 F.3d 967, 976 (8th Cir. 2006).

[38] Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983) (“Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.”).

[39] Sons of Confederate Veterans, Virginia Div. v. City of Lexington, Va., 722 F.3d 224, 232 (4th Cir. 2013) (“A government is entitled to close a designated public forum to all speech. Reading a clean-hands requirement into the closure of such a forum is not supported by precedent and could produce an absurd result.”).

[40] US Const. amend. I.

[41] Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008).

[42] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2020 (2017); see New Doe Child #1 v. United States, 901 F.3d 1015, 1025 (8th Cir. 2018) (“The Free Exercise Clause requires only that the statutes at issue be neutral and generally applicable; incidental burdens on religion are usually not enough to make out a free exercise claim.”).

[43] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2020 (2017).

[44] Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause … extends beyond facial discrimination. … Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”).

[45] Id. (“Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt.”)

[46] Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977).

[47] Church of Lukumi Babalu Aye, Inc., 508 U.S. at 540.

[48] Satanic Temple v. City of Belle Plaine, Mn, 80 F.4th 864, 868 (8th Cir. 2023).

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1327 (11th Cir. 2017) (concurrence) (“No person is always in the majority, and our Constitution places out of reach of the tyranny of the majority the protections of the First Amendment. The promise of free speech is that even when one holds an unpopular point of view, the state cannot stifle it.”); McCullen v. Coakley, 134 S.Ct. 2518, 2529 (2014) (content-based regulations of speech threaten the existence of “an uninhibited marketplace of ideas in which truth will ultimately prevail.”). 

[57] Brief for Appellee, supra note 11, at *11  (“the City Council has determined that allowing privately-owned memorials or displays in its Park no longer meets the intent or purpose of the Park.”).

[58] Brief for Appellant, supra note 10, at *63 (“[H]ow can we up here be assured that, number one, these [Satanic] monuments won’t go into that Park?”).

[59] Id.

[60] Satanic Temple v. City of Belle Plaine, Mn, 80 F.4th 864, 867 (8th Cir. 2023).

[61] Id. at 868.

[62] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983); Sons of Confederate Veterans, Virginia Division v. City of Lexington, Virginia, 722 F.3d 224, 232 (4th Cir. 2013) (“A government is entitled to close a designated public forum to all speech.”); Currier v. Potter, 379 F.3d 716, 728 (9th Cir. 2004) (government may close limited public forum “whenever it wants”); Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004) (government may decide to close limited public forum).

[63] Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993).

[64] Satanic Temple, 80 F.4th at 868.

[65] Hill v. Colorado, 530 U.S. 703, 724 (2000) (“[T]he contention that a statute is ‘viewpoint based’ simply because its enactment was motivated by the conduct of the partisans on one side of a debate is without support.”).

[66] Id.; Sons of Confederate Veterans, 722 F.3d at 231-32.