A historic triumph for free speech — especially for nonbelievers — in the Lone Star State is being defended in appeals court.

The Freedom From Religion Foundation has filed its brief in the 5th U.S. Circuit Court of Appeals to sustain its win last year in federal court against Texas Gov. Greg Abbott’s removal of its winter solstice Bill of Rights “Nativity” from the state Capitol in 2015.

FFRF, a national state/church watchdog with more than 31,000 nonreligious members, including over 1,300 in Texas, had placed a duly permitted display celebrating the winter solstice and Bill of Rights Day in December 2015 in response to a Christian nativity at the Texas Capitol. The whimsical display, depicting Founding Fathers and the Statue of Liberty celebrating the “birth” of the Bill of Rights (adopted Dec. 15, 1791), had the requisite sponsorship from a Texas legislator. Abbott, as chair of the Texas State Preservation Board, ordered FFRF’s display taken down only three days after it was erected, lambasting it as indecent, mocking and contributing to public immorality.

In a final judgement issued last June, U.S. District Judge Sam Sparks, for the Western District of Texas - Austin Division, declared that Abbott had violated FFRF's free speech rights. (FFRF had received an initial ruling in its favor in October 2017.)

“Defendants violated FFRF's First Amendment rights and engaged in viewpoint discrimination as a matter of law when the FFRF exhibit was removed from the Texas Capitol building under the circumstances of this case,” Sparks ruled.

On appeal to the 5th Circuit, Abbott did not contest the district court’s ruling that he violated FFRF’s free speech rights, explains FFRF Associate Counsel Sam Grover, so there are only a few remaining contested issues.

The first is whether the court should also issue an injunction against the censorship of FFRF’s display in the future. A second issue on appeal, raised by FFRF, is whether the 5th Circuit should reverse the lower court’s rejection of FFRF’s challenge to the State Preservation Board’s standards of review for display applications. FFRF argues that the requirement that displays have a “public purpose” grants government officials unbridled discretion to reject applications for impermissible purposes, such as Abbott’s hostility toward FFRF’s message. The district court ruled that Abbott’s order was illegal, but FFRF is asking the 5th Circuit to ensure that the State Preservation Board cannot abuse the public purpose requirement in the future — by doing away with the requirement in its entirety.

“This case is about censorship and exclusion of viewpoints from a public forum based on the personal disapproval of individual government officials, i.e., the appellants, Gov. Greg Abbott and the executive director of the Texas State Preservation Board,” states the brief’s introduction. “Acting with autocratic impunity, Gov. Abbott ordered the Freedom From Religion Foundation’s display of a Bill of Rights and Winter Solstice Exhibit immediately removed from the Texas State Capitol, despite preapproval by the State Preservation Board.”

Abbott and the State Preservation Board now have 30 days to file their response to FFRF’s brief, followed by a reply from FFRF before the case is scheduled for oral argument.

“We’re confident that we will prevail yet again in our defense of a fundamental American liberty,” says FFRF Co-President Annie Laurie Gaylor. “Abbott cannot be allowed to ride roughshod over the rights of so many Texans.”

FFRF is represented by Attorney Richard L. Bolton with FFRF Associate Counsel Sam Grover and Senior Counsel Patrick Elliott as co-counsel. More history about the case (Case No. 18-50610) can be found here.