Doe v. Small

964 F.2d 611, 1992 WL 102223

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 15, 1992
• Docket: No. 89-3756
• Status: Published

Opinions

COFFEY, Circuit Judge.

The Ottawa Freedom Association (“OFA”)¹ appeals the district court’s entry of summary judgment enjoining the City of Ottawa from allowing any person or group from displaying the paintings at issue in Washington Park in Ottawa, Illinois. Because this injunction is overbroad and infringes on the free speech rights of any private person desiring to display the paintings, we reverse.

I. FACTS²

A. The Paintings

In 1956 the Ottawa Retail Merchants’ Association, a private organization, commissioned the painting of sixteen canvases depicting scenes from the life of Christ in an effort to “put Christ back in Christmas.” These paintings were displayed in Washington Park, located in the heart of the City of Ottawa, Illinois, during the Christmas season from 1957 to 1969 and again in 1980 through 1988. Except for the years 1964 through 1967, when the City arranged for the erection of the paintings, the display has been exhibited by private parties.

The paintings were not displayed during the 1970s but were stored under an old grandstand structure and apparently forgotten. According to a 1980 Ottawa newspaper article, the City Parks Superintendent who discovered the paintings under the old grandstand stated:

“ ‘We’ve got to find a home for them, got to find an owner,’ he said. ‘This building will be torn down early next spring, and the city doesn’t have another place big enough to store them.’ ”

Upon reading about the discovery of the paintings, the local chapter of the Junior Chamber of Commerce (Jaycees), a national service-oriented organization, contacted the City and volunteered to take charge of the paintings; the Jaycees were the caretakers of the paintings until they transferred their custody to the OFA shortly before the request for rehearing en banc.

When the paintings were displayed, they occupied less than one-half of the west side of Washington Park in a slightly V-shaped angle (150°), and the vertex of the display was forty-eight feet from the street. Including the area between the paintings and the sidewalk, the paintings occupied 6.34 percent of the Park. A 2OV2" wide by 21" high sign with letters IV16" high, clearly legible from the sidewalk but not from across the street, accompanied the paintings and stated: “THIS DISPLAY HAS BEEN ERECTED AND MAINTAINED SOLELY BY THE OTTAWA JAYCEES, A PRIVATE ORGANIZATION, WITHOUT THE USE OF PUBLIC FUNDS.”³

B. The Forum

Washington Park is a quintessential public forum well removed from the seat of the City government; City Hall is some three blocks away, and no City buildings border the park. Deposition testimony from a number of Ottawa residents established that Washington Park has historically been an open public forum with free and equal access to all for lawful purposes. Space in the Park is allocated on a first-come, first-served basis, without specific permission from the City:

“Q. So if I wanted to display my pictures depicting worship of the devil tomorrow in Washington Park, I could just go in and put up those displays, is that correct?

* * * * * *

“The Witness: You can put them up, we might have to have, maybe, the engineer or someone that knows where the wiring is at so you don’t get electrocuted, but yes.

>}! Sfc Sjt 5ft * *

“Q. And other than checking the wiring in the ground, are there any other limits on installing concrete holes in the park?

“A. No.

“Q. So I could place these holes anywhere in the park without seeking City of Ottawa’s permission, so long as I complied with the wiring in the ground, is that correct?

“A. Yes.

“Q. And the City Engineer would advise me as to whether or not I was complying with any requirements or concerns with respect to wiring in the ground?

“A. Yes.

* * * * * *

“Q. And I could, in fact, use the Jaycee holes to display paintings depicting devil worship without seeking the permission of the City of Ottawa, is that correct?

“A. That’s correct.

* >fs * it* * *

“Q. I could do so without seeking the permission of the Ottawa Jaycees? “A. Yes.

“Q. So long as I got there first?

“A. Yes.”

Deposition of City Council Member William C. Ferguson at 44, 86-88.

Unrestricted public access to Washington Park dates back some 133 years to 1858 when Abraham Lincoln and Stephen Douglas used the Park for one of their famous debates. In 1988, President Bush likewise chose Washington Park as a forum for a speech and rally during his presidential campaign. According to City records, the Park has been the site of a broad array of private activities in recent years, including religious activities:

June 19, 1982 Residents Against Polluted Environment sponsored “Earth Day”

Aug. 2, 1984 Tora! Tora! held a concert for world peace

Oct. 29, 1983 Open air meeting sponsored by the Congregation of the New Life Ministry, Inc.

June 28, 1984 Special Church Service

July, 1984 Religious Concert

Aug., 1984 Concert for World Peace

Aug., 1984 Cut a Thon by Cosmetologists

Jan., 1985 Illinois Valley Citizens for Life Prayer Vigil

May, 1985 Concert in Washington Park

June, 1985 United Methodist Church Services

July, 1985 University Women Book Sale

July, 1985 Grade School Band Social and Concert

Oct., 1985 United Way Lunch

June, 1986 Camp Fire Girls Ceremony

June, 1986 Art League Display

June, 1986 Pastor Reed Church Service

July, 1986 Arts & Crafts Show — Art League

July, 1986 A.A.U.W. Book Sale

July, 1986 Decatur Park Concert

Aug., 1986 Grade School Band Concert

Aug., 1986 Flea Market

Aug., 1986 A.A.U. Book Sale

Sept., 1986 Ottawa Lioness Club Flea Market

Sept., 1986 Nam Vets POW/MIA National Recognition Ceremony

May, 1987 Ottawa Retail Council Flea Market

May, 1987 Amazing Grace Fellowship Meeting and Concert

July, 1987 New Lite Ministries Rummage Sale

July, 1987 Nam Vets — Concert

Aug., 1987 Sesquicentennial Celebration Activities

Sept., 1987 Lioness Club Flea Market

Sept., 1987 Nam Vets POW/MIA National Recognition Ceremony

Oct., 1987 All Church Concert

May, 1988 Mayfest Flea Market

July, 1988 Art Show

July, 1988 Book Sale

July, 1988 Dance Show

Aug., 1988 Flea Market

Sept., 1988 Lioness Flea Market

Sept., 1988 POW/MIA National Recognition Ceremony

(Emphasis added.)

For many years the City of Ottawa, in the spirit of the season and “goodwill toward others,” has combined with private parties in a joint effort to decorate the downtown area with festive holiday and Christmas decorations during the Yuletide season. As part of the City’s decorations, it displayed a Santa Claus house in the Park each year during the 1960s and 1970s, but more recently the City displays the house in alternate years. Additionally, the lamp posts in the downtown area as well as those in and surrounding Washington Park are garnished with Christmas decorations. In 1988 the City added the “Festival of Lights” to the Christmas display in Washington Park. The “Festival of Lights” decorations included lights, candles, bows, artificial snowflakes and a fifteen-foot snowman. The lights were placed on the memorials in the Park as well as on tree branches, including those trees surrounding the paintings at issue in this appeal. The giant candles, bows, snowflakes and the fifteen-foot snowman all served as different focal points and were visible from in and around the Park. The Christmas display in the Park also included an evergreen Christmas tree displayed by the Salvation Army that provided its own focal point.

C. The Dispute

In November of 1986, Richard Rohrer wrote a letter to the City Council requesting that the paintings be removed from Washington Park because they “represent an unacceptable endorsement of Christianity by the city and violate the constitutional rights of all Ottawans who are not Christians.” On December 2, 1986, the Ottawa City Council passed the following resolution:

“WHEREAS, for many years, the City of Ottawa has celebrated the Christmas season with many public displays of seasonal decorations throughout the community, and

“WHEREAS, the downtown area of the City has, for more than 20 years, been decorated through a coordinated effort of private and public bodies, including the County of LaSalle, City of Ottawa, Ottawa Area Chamber of Commerce, Retail Merchants Association, Ottawa Jaycees and various church and other private groups owning property in or near the downtown area, and

“WHEREAS, the decorations have consisted of ornamental lighting on the streets in downtown Ottawa; ornamental lighting, Christmas trees, lighted and festooned trees throughout the downtown area; Santa Claus house on the Courthouse lawn; ornamental lighting, and eighteen large paintings celebrating the Christmas spirit in Washington Park; nativity scenes and other seasonal decorations on private property surrounding Washington Park; ornamental lighting on the Fire and Police station and other decorations in keeping with the season, and

“WHEREAS, because of a single complaint filed with it concerning the paintings in Washington Park the City has reviewed the history of the paintings and find that they were initially commissioned by the Retail Merchants Association over 20 years ago as a portrayal of ‘The Greatest Story Ever Told’ in conjunction with and in commemoration of the spirit of Christmas; that the Retail Merchants Association for many years erected the pictures in Washington Park as part of the Christmas decorations for downtown Ottawa in keeping with the spirit of the season; that in recent years the pictures had been maintained, erected, dismantled and stored by the Ottawa Jaycees as their part in providing appropriate decorations for the community as part of the Christmas season, and

“WHEREAS, the City Council of the City of Ottawa finds that the decorations in downtown Ottawa which have been erected for more than the last 20 years by public and private agencies truly represent a cooperative effort by the community to provide appropriate seasonal yuletide spirit so that the people attracted by the Christmas decorations to shop and otherwise do their business in the downtown area will be benefitted by the traditional, beautiful and seasonally appropriate decorations which they have come to know and love for 2 decades. The City Council specifically finds the pictures erected by the Jaycees in Wash-

ington Park are an integral part of the seasonal decorations epitomizing Christmas in the hearts and minds of the citizens of the City.

“NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ottawa, that after due consideration and reflection upon the complaint raised concerning the pictures in Washington Park, that this council endorse the activities of the Ottawa Jaycees in maintaining, erecting, dismantling and storing said pictures and incorporating them in the overall Christmas display that annually graces the downtown area of the City and further thanks all the other groups, public and private, who also maintain, erect, dismantle and store other portions of the Christmas decorations which are integral to the annual yuletide season and the spirit thereof.”

On August 11, 1988, Rohrer filed a complaint with the federal district court seeking to enjoin the display of the paintings; he modified his complaint January 11,1989, to request that the court enjoin the exhibit unless the City placed restrictions on the frequency and duration of the display; and the complaint was once more amended on June 12, 1989, to substitute Jane Doe as plaintiff after Rohrer moved from Ottawa.

Subsequent to the filing of the suit, May- or Small stated that the City was “going to proceed and put the pictures back in the park.” Suit Filed Over Park Paintings, Ottawa Daily Times, Aug. 16, 1988. In regard to Rohrer’s filing of the suit, the Mayor said:

“This is what I guess happens in a free country. If he doesn’t like the paintings, then he can drive around them____ Maybe he’s looking for a public reaction, but I don’t want him crying when the public puts the heat on him.”

Id. Several months later the City, on the recommendation of the mayor and the advice of the city attorney, changed its position in regard to the display of the paintings. At the October 18, 1988 City Council meeting, the Council voted to prohibit the display of the paintings and, as an alternative, to initiate a “Festival of Lights” as Christmas decorations for' Washington Park. Shortly thereafter, the First National Bank of Ottawa offered to allow the Jaycees to display the paintings on its property located across the street from Ottawa City Hall. Upon hearing of the proposed new location for the paintings, Mayor Small stated: “It’s an honor to have the pictures across the street from City Hall____ Maybe someday they’ll be back in Washington Park where they belong.” Paintings Get Home, Ottawa Daily Times, Oct. 21, 1988. A representative of the National Legal Foundation appeared at a special meeting of the City Council on October 28, 1988, and offered to defend the lawsuit if the City gave the Jaycees permission to proceed with displaying the paintings in Washington Park.⁴ At this time, the City Council voted to rescind their decision preventing the Jaycees from displaying the paintings during the 1988-1989 Christmas season. Subsequently, the Ottawa Jaycees, represented by the National Legal Foundation, intervened as defendants and took over the defense of the lawsuit.

The Jaycees moved for summary judgment on the ground that the paintings constitute private religious speech, protected under the Free Speech Clause of the First Amendment. Doe likewise filed a motion for summary judgment, arguing that the display of the paintings in a public park violated the Establishment Clause of the First Amendment because the display constituted a state establishment of religion. The district court entered summary judgment for Doe, holding that the display of the paintings in Washington Park violated the Establishment Clause. See Doe v. Small, 726 F.Supp. 713 (N.D.Ill.1989). The judge obviously viewed the City of Ottawa as a participant in the Jaycees’ speech, for he stated:

“[It] makes no difference to the analysis or result that Washington Park may be a public forum____

City Defendants may — and must — regulate religious speech in Washington Park, including that of Jaycees, if such speech presents the danger of a violation of the Establishment Clause.”

Id. at 724. The district court found that the display of the paintings violated the Establishment Clause and permanently enjoined their display in Washington Park:

“This Court has been advised that the paintings have already been put up on display for the current season. City is therefore ordered to have the paintings removed by December 8, 1989 and to forego any future display of the paintings in the Park by any group.”

Id. at 725 (footnotes omitted) (emphasis added).

II. ISSUES

The issues we address on this appeal are: 1) Whether private persons may be enjoined from engaging in religious speech in a public forum on the basis of the religious content of the speech; and 2) Whether the proper remedy was to enjoin the Jaycees’ speech if the display was not purely private and therefore violated the Establishment Clause. The court is not in agreement as to whether the City violated the Establishment Clause in its conduct. Some members of the court feel that the City Council’s resolution “endorsing] the activities of the Ottawa Jaycees” in placing the paintings in the Christmas display was merely a “thank you” to the Jaycees while other members of the court believe the resolution independently or in addition to other conduct of the City to be an endorsement of the content of the paintings. We need not and will not address the issue of whether the City of Ottawa endorsed the Jaycees’ religious speech because the City has not appealed.⁵

III. PRIVATE RELIGIOUS SPEECH IN A PUBLIC FORUM

The district court determined that the Jaycees’ display of the paintings violated the Establishment Clause and ordered the City “to forego any future display of the paintings in the Park by any group." Doe v. Small, 726 F.Supp. at 725 (emphasis added). The district court’s order was overbroad because it restrains the speech of parties who were not before it, such as the OFA or any other group that might desire to display the paintings in Washington Park in the future. In deciding to permanently enjoin the display of the paintings in Washington Park, regardless of who wished to display them, the district judge stated that “it makes no difference to the analysis or result that Washington Park may be a public forum. ” Id. at 724 (emphasis added). We disagree. It is well established that private religious speech is protected under the Free Speech Clause of the First Amendment. “[Rjeligious worship and' discussion ... are forms of speech and association protected by the First Amendment. See, e.g., Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948).” Widmar v. Vincent, 454 U.S. 263, 269, 102 S.Ct. 269, 274, 70 L.Ed.2d 440 (1981) (footnote omitted). As Justice O’Connor writing for the Court has noted, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Board of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 2372, 110 L.Ed.2d 191 (1990) (emphasis original). In enjoining “any future display of the paintings in the Park by any group,” Doe v. Small, 726 F.Supp. at 725, the district judge ignored this “crucial difference.”

Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) is an appropriate starting point for an analysis of whether private speech may be excluded from a quintessential public forum:

“In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980).”

Id., 460 U.S. at 45, 103 S.Ct. at 954-55 (emphasis added). The district court found the government’s obligation to avoid violating the Establishment Clause to be a sufficiently compelling interest to justify a content-based exclusion of religious speech in Washington Park. Thus, the court held that the “City Defendants may — and must — regulate religious speech in Washington Park, including that of Jaycees, if such speech presents the danger of a violation of the Establishment Clause.” Doe v. Small, 726 F.Supp. at 724. While the government’s interest “in complying with its Constitutional obligations may be characterized as compelling,” Widmar, 454 U.S. at 271, 102 S.Ct. at 275 (emphasis added), the Supreme Court has refused to find the Establishment Clause to be a sufficiently compelling interest to exclude private religious speech even from a limited public forum created by the government. In Widmar, rather than finding the Establishment Clause to provide a sufficiently compelling interest to justify a content-based exclusion of a campus organization’s religious speech from the facilities of the University of Missouri at Kansas City, the Supreme Court held that the First Amendment prohibited the university from denying the religious organization equal access to the facilities that were open to nonreligious groups. The Court rejected the state’s argument that Missouri’s interest in the separation of church and state could justify a content-based exclusion of religious speech:

“[T]he state interest asserted here — in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution — is limited by the Free Exercise Clause and in this ease by the Free Speech Clause as well. In this constitutional context, we are unable to recognize the State’s interest as sufficiently ‘compelling’ to justify content-based discrimination against respondents’ religious speech.”

Id. at 276, 102 S.Ct. at 277-78.⁶ As in Widmar, the religious speech of private parties who wish to display the paintings of Christ in Washington Park are protected under the Free Exercise Clause and the Free Speech Clause. Since the State of Missouri’s desire to achieve greater separation of church and state than provided for under the Establishment Clause was an insufficient interest to justify a content-based exclusion of religious speech in the limited public forum of a state university, we fail to comprehend how the Establishment Clause could constitute a sufficiently compelling state interest to justify a content-based exclusion of private religious speech in a quintessential public forum. Thus, we hold that the district judge erred in finding that the Establishment Clause provided a sufficiently compelling interest to justify a content-based exclusion of speech from Washington Park. The City of Ottawa may not exclude private persons from Washington Park merely because of the religious content of their speech.

The district court obviously assumed that the religious content of the paintings would result in some kind of a violation of the Establishment Clause regardless of what private group displayed them in Washington Park, so it ordered the City “to forego any future display of the paintings in the Park by any group.” Doe v. Small, 726 F.Supp. at 725. In a footnote, the district judge said, “[t]his Court finds that the unmistakably religious content of the paintings as a group moots any time-and-manner restrictions as a saving device.” Id. at n. 23. The court erred in finding that the religious content of a display in a quintessential public forum far removed from the seat of government violates the Establishment Clause, for public forums must be open to religious speech.

“[I]f a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion. ‘The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities.’ ”

Mergens, 110 S.Ct. at 2371 (citation omitted). Doe argues that Ottawa has no equal access policy for Washington Park, and thus the OFA (or any other private party including the Jaycees) is not entitled to display the paintings there. But Doe bears the burden of persuasion on the issue of no equal access, and from our review of the record, it is devoid of any evidence of the City refusing to allow equal access to any and all in Washington Park within the confines of the law. In fact, we have identified and listed some thirty-plus private groups who have made use of the Park for organized events in recent years. See supra at 614. We are of the belief that if the plaintiff had discovered evidence of the City denying access to Washington Park for the purpose of a speech-related activity to anyone, she most certainly would have brought that evidence to the court’s attention. In the absence of any allegation (much less actual proof) that Ottawa has denied any person access to the Park, it is immaterial that Ottawa does not have an officially stated policy of equal access, for the Constitution mandates that religious speakers may not be discriminated against in a public forum on the basis of their speech. The City of Ottawa is required to comply with the constitutional mandate regardless of whether it has an officially stated policy of doing so, and Doe has failed to demonstrate non-compliance. Moreover, the mere presence of religious symbols in a public forum does not violate the Establishment Clause, since the government is not presumed to endorse every speaker that it fails to censor in a quintessential public forum far removed from the seat of government. See Mergens, 110 S.Ct. at 2372. We hold that the district court erred in ordering the City “to forego any future display of the paintings in the Park by any group.” Doe v. Small, 726 F.Supp. at 725.

Our holding that the paintings may not be excluded from Washington Park is consistent with the Supreme Court cases cited above as well as with precedent from this court. In Doe v. Village of Crestwood, 917 F.2d 1476 (7th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 3025, 120 L.Ed.2d 896 (1992), we reviewed an injunction prohibiting an authentic Italian mass from being said at an Italian festival. While the panel majority and the dissenting judge were in disagreement as to whether the Village of Crestwood was the sponsor of the mass, the panel was in full agreement as to the right of private parties to engage in religious expression in a public forum:

“The Park is a public forum. If the Festival, too, is open to private groups that wish to participate, and if the Crest-wood Women’s Club (or a church) were the sponsor of the mass, it would be difficult to find an obstacle in the Establishment Clause of the First Amendment____ A government may not close its public forums to religious practice by private parties. Widmar v. Vincent, 454 U.S. 263 [102 S.Ct. 269, 70 L.Ed.2d 440] (1981); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953). Although the holding of the mass in a public park creates a possibility that some members of the public will assume sponsorship (as opposed to acquiescence) by the polity, the government’s obligation not to discriminate against religious speech in circumstances in which secular speech would be allowed prevails.”

Id. at 1478 (citations omitted) (emphasis added). We likewise emphasized the importance of equal access for religious speech in Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341 (7th Cir. 1990). We rejected Lubavitch’s argument that the City of Chicago’s content-neutral regulations prohibiting all free-standing structures in public areas at O’Hare International Airport were overbroad (the opinion distinguished leased spaces from public areas). But we were careful to point out that Lubavitch’s free-standing Menorahs could not be excluded if other free-standing structures were permitted:

“First Amendment jurisprudence certainly does mandate that if the government opens a public forum to allow some groups to erect communicative structures, it cannot deny equal access to others because of religious considerations, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), but the record is clear that the City has prohibited all groups from erecting structures in the airport public areas.”

Id. at 347 (emphasis added). We are unpersuaded that whatever relationship the City of Ottawa may have had with the paintings in the past requires us to deviate from the equal access principles enunciated in Widmar, Mergens, Crestwood and Lubavitch.

IV. NARROWLY TAILORED REMEDY

In permanently enjoining the display of the paintings “by any group,” the district court failed to consider whether the total ban was narrowly tailored to remedy the “evil” of the City’s alleged endorsement of the message of the paintings.

“A statute [or remedy] is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808-810, 104 S.Ct. 2118, 2130-2132, 80 L.Ed.2d 772 (1984). A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil. For example, in Taxpayers for Vincent we upheld an ordinance that banned all signs on public property because the interest supporting the regulation, an aesthetic interest in avoiding visual clutter and blight, rendered each sign an evil. Complete prohibition was necessary because ‘the substantive evil — visual blight— [was] not merely a possible byproduct of the activity, but [was] created by the medium of expression itself.’ Id., at 810, 104 S.Ct., at 2131.”

Frisby v. Schultz, 487 U.S. 474, 485-86, 108 S.Ct. 2495, 2503, 101 L.Ed.2d 420 (1988). As we demonstrated above, the government (including federal courts) may not view private religious speech in a public forum removed from the seat of government to be evil because of its status as religious speech. Cf. Mergens, 110 S.Ct. at 2371. Thus, the only redressable “evil” that can arise from the display of religious symbols in a quintessential public forum is a perception that the government, through conduct other than merely tolerating the presence of the religious speech, has endorsed the speech or made the display of the symbols its own in a manner that violates the Establishment Clause. Because the First Amendment mandates that the government permit religious speech in quintessential public forums, the mere presence of religious symbols in such a forum cannot violate the Constitution. Yet, the district court’s remedy was directed only at prohibiting the City from allowing the display of the paintings in Washington Park rather than at the conduct of the City that the district court evidently found to be demonstrative of an endorsement of the display. The district court’s order was not narrowly tailored because it sought to eliminate the display of the paintings “by any party” instead of limiting it to the “evil” of the City’s alleged endorsement of the paintings alone.

The district judge’s permanent injunction prohibiting the display of the paintings implies that once the government impermissibly endorses religious speech (e.g. the paintings), that particular speech becomes poisoned and no private party may thereafter express that view.⁷ The court evidently believed that the alleged endorsement of the City could not be remedied without a complete ban on the display, but that is an incorrect assumption. This court has previously recognized that the government can take steps to remove indicia of endorsement of private religious speech. See Mather v. Village of Mundelein, 864 F.2d 1291, 1292 (7th Cir.1989) (Village’s addition of secular symbols to its own existing display of a créche on public property sufficient to avoid appearance of impropriety). Other courts have likewise recognized the ability of government to disassociate itself from private expression that might otherwise have been attributed to it. See American Civil Liberties Union v. Wilkinson, 895 F.2d 1098 (6th Cir.1990) (conditions ordered by district court adequate to avoid impression of state endorsement of religious message inherent in a créche); McCreary v. Stone, 739 F.2d 716 (2d Cir.1984), aff'd by an equally divided Court sub nom. Board of Trustees v. McCreary, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985) (remand for determination of size of sign necessary to disassociate the City from a free-standing créche in a public park). If the district court found the conduct of the City violative of the Establishment Clause, it should have ordered a remedy that would have directly addressed the violation. For example, if the City Council’s resolution endorsing the “activities” of the Jaycees constituted an endorsement of the paintings, the court should have ordered a rescission of the resolution;⁸ if the mayor’s comments expressing approval of the paintings were inappropriate, the court could have enjoined further such statements or even required a retraction; if the court felt that the very presence of the paintings in the park provided evidence of an endorsement, it could have ordered the City to post a more visible sign of its own specifically disclaiming any association with the paintings. The district court could have fashioned any number of remedies that would have removed the City’s alleged endorsement without infringing on the rights of private parties to engage in religious expression in Washington Park; instead, it placed an impermissible burden on free speech, which must be removed.

This court is agreed that the City should not engage in any conduct that approves or disapproves of the religious beliefs of anyone. The City must treat all who wish to engage in expressive activities within the confines of the law in Washington Park (and other public forums) equally.⁹ In view of the controversy engendered by the display of these paintings, we think the Ottawa City Council would be well-advised to carefully avoid any type of conduct that could be interpreted as an endorsement of the religious message of the paintings.¹⁰ If the mayor or any City Council member or official of the City wishes to express an opinion of a private party’s exhibit, the person should clarify whether he or she is speaking in an individual or official capacity.

Permitting the OFA or the Jaycees to display the paintings in Washington Park complies with the concerns of the Establishment Clause as well as the Free Speech Clause. In the physical context' of an exhibit on governmental property in the seat of government where “any [private] display located there fairly may be understood to express views that receive the support and endorsement of the government,” County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 3104 n. 50, 106 L.Ed.2d 472 (1989), the Establishment Clause may require the removal of such religious display if there is no other narrowly-tailored manner of avoiding the appearance of governmental endorsement of the message. But in a quintessential public forum removed from the seat of government, entering an injunction directed only at prohibiting the governmental conduct that provides indicia of endorsement is a narrowly-tailored manner of satisfying the concerns of the Establishment Clause, while allowing the private speaker to continue to express religious views avoids infringing on the liberties guaranteed under the Free Speech Clause. Hence, there is no conflict between the Establishment Clause and the Free Speech Clause when private persons engage in religious speech in a public forum.¹¹

V. CONCLUSION

We hold that the district court erred in issuing an overbroad injunction mandating that the City must remove the paintings from the park and “forego any future display of the paintings in the Park by any group” because the overbroad injunction was a content-based exclusion of speech without a compelling state interest to support it. We further hold that the court erred in enjoining the display of the paintings as opposed to enjoining only the conduct of the City that allegedly violated the Establishment Clause. The judgment of the district court is Reversed except for the holding that the City of Ottawa violated the Establishment Clause. Since the City of Ottawa has not joined in appealing that holding, we express no opinion as to whether the City violated the Establishment Clause. Should the plaintiff wish to pursue her original intent of enforcing the regulation of private speech in Washington Park, it will be necessary for her to apply to the district court for a limited injunction consistent with the language in this majority opinion. The injunction against the City is Vacated and the case is remanded to the district court pursuant to Circuit Rule 36.

1 . This suit was initially filed against the Mayor, members of the City Council and the City of Ottawa, Illinois by one Richard Rohrer. Jane Doe was substituted for Rohrer after he lost standing by moving away from Ottawa, and the Ottawa Jaycees intervened as defendants, since their practice of displaying the paintings made them the real party in interest. The Ottawa Jaycees pursued the original appeal of the district court’s judgment, but after the panel’s May 28, 1991 affirmance of the district court, the Jaycees transferred the paintings to the OFA, and at this time the OFA was substituted as intervenor-defendant-appellant.

2 . Where the record is capable of supporting differing interpretations of the facts, we shall view them in the light most favorable to the appellants: "In reviewing a grant of summary judgment, we must view the record and all inferences drawn therefrom in the light most favorable to the party opposing the motion. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).” Beard v. Whitley County, REMC, 840 F.2d 405, 409 (7th Cir.1988).

3 . Over the years since 1980 when the Jaycees began displaying the paintings, they occupied a space on the west side of Washington Park on an average of two months per year. In 1988, the last year the paintings were displayed, they were up for thirty-five days. The longest period of time that the paintings were exhibited was in 1986, when they were on display for three and one-half months. The Jaycees’ explanation for the extended period of time that particular year was that the metal poles supporting the paintings were frozen into the metal sleeves in the ground, thus making it impossible to remove the paintings until the ground thawed. The Jaycees ensured that the problem would not reoccur by replacing the original dilapidated supports with new concrete foundations with metal sleeves for the paintings (at the Jaycees’ expense) the following year. The Jaycees designed the new supports and installed them in locations approved by the City Engineer and City Commissioner of Public Improvement. According to the mayor’s deposition testimony, such approval for digging in the Park is necessary to avoid interfering with utility services such as gas, electric, telephone or water.

4 . The lawsuit is being prosecuted by the American Civil Liberties Union, so it does not appear that the plaintiff or the City of Ottawa has expended their own funds in this lawsuit.

5 . Justice O'Connor's "endorsement” test, initially articulated in her concurrence in Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 1366, 79 L.Ed.2d 604 (1984), prohibits the government from endorsing or favoring any particular religious expression or belief. This question concerning the Establishment Clause and whether the "endorsement” test Justice O’Connor expressed is proper is currently before the Supreme Court in Lee v. Weisman, — U.S. -, 111 S.Ct. 1305, 113 L.Ed.2d 240 (1991). Although we discuss the City’s alleged "endorsement” of the paintings throughout this opinion, we take no position on whether that .is the correct test because the issue is not before us.

6 . The Court reaffirmed its holding that allowing religious organizations to have access even in a limited public forum does not violate the Establishment Clause in Mergens, 110 S.Ct. at 2370-72. In Mergens, the Supreme Court rejected the argument that the equal access act, 98 Stat. 1302, 20 U.S.C. §§ 4071-4074, which requires high schools to provide equal access to religious student groups along with other student groups for the use of school facilities, violated the Establishment Clause.

7 . At the en banc oral argument, the ACLU attorney admitted that the Constitution prohibits viewing governmental endorsement of private speech as permanently poisoning it, but denied that the district court’s injunction implied otherwise. We are unable to understand how the district court could permanently enjoin the display of the paintings "by any group” unless the court found the paintings to be eternally poisoned by the government’s alleged endorsement.

8 . Several members of the court, including the author of this opinion, believe the resolution too old to currently constitute an endorsement regardless of its wording.

9 .To the extent the concrete foundations for the paintings might be viewed as an impermissible governmental endorsement of the paintings, we note that the record is void of evidence suggesting that the City would have denied permission to any other group or person to use the supports or install their own. If there were such evidence, the proper remedy would be to order the City to either allow the installation of the additional supports or remove the existing supports in order to provide for equal treatment of all protected speech. As noted above (see n. 3), the City’s minor participation in determining the location of the Jaycees’ supports was necessary to avoid risking interference with underground utility lines.

10 . That is not to say that it would be impermissible for the City to include religious symbols of its own in a Christmas display. See Mather, 864 F.2d at 1293.

11 . If the City wishes to regulate speech in Washington Park, a content-neutral regulátion would permit the paintings to be exhibited the same length of time as the rest of the Christmas displays, but not a time period of greater or lesser duration.