Nebraska Law Review

Volume 92 | Issue 1 Article 5

2013 Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause Amanda Reid Florida Coastal School of Law, [email protected]

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Recommended Citation Amanda Reid, Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause, 92 Neb. L. Rev. (2014) Available at: https://digitalcommons.unl.edu/nlr/vol92/iss1/5

This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. 33655-neb_92-1 Sheet No. 66 Side B 08/28/2013 10:13:22 R R R R R R R R R R R R .... 130 ...... 155 ...... 137 ...... 134 ...... 131 124 editors. Any errors or deficiencies are entirely my ...... 149 ...... 143 TABLE OF CONTENTS ...... 160 ...... 125 ...... 130 ...... 156 ...... 143 Memorials Memorials Are Communication When All Roadside Banned Official Marker Communication When a Uniform, in the Roadside Eliminates Personal Involvement Memorial Memorials Nebraska Law Review B. Patchwork of Public Policies on Roadside A. Adequacy of Alternative Channels of B. Adequacy of Alternative Channels of A. Memorials Are Growing in Popularity Roadside B. Road Death Is a “Bad Death” C. Constructing the Roadside Memorial D. The Message of the Roadside Memorial A. Public Opinion on Roadside Phenomenon Memorials responsibility. College of Journalism and Communications, 2004; J.D., University of Florida, College of Journalism and Communications, State University, Speech Communica- Levin College of Law, 2004; M.A., Florida Communication and Philosophy, 1998. tion, 1999; B.A., Florida State University, suggestions from Michael Launer and I am grateful for the helpful comments and Jeffrey Schmitt. The Florida Coastal reference librarians provided invaluable re- to Shawn Friend, Head of Refer- search assistance, and I am especially grateful ence, for her expertise. I also appreciate the careful and thoughtful assistance of the I. Introduction II. Roadside Memorial Toward an Understanding of the * School of Law. Ph.D., University of Florida, Assistant Professor, Florida Coastal IV. Memorials and the Free Speech Clause Roadside III. Opinion and Public Policy on Roadside Public Amanda Reid* Amanda Space: on Public Memorials Private Intersection at the Crosses Roadside the Speech Clause and of the Free Clause Establishment \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 1 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 66 Side B 08/28/2013 10:13:22 B 08/28/2013 66 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 67 Side A 08/28/2013 10:13:22 R R R R R R R R R R R . 3 OLK- TUD S 128, 129, EATH , 111 F ORM ...... 179 F ...... 161 , 25 D ISUAL V ...... 176 A Cross Marks the Spot: A 70 (1941)...... 168 221, 221 (2003). ORTEZ eche Scene on Public eche Scene MEGA C ...... 180 EMEMBRANCE AND EA OF , 47 O ...... 162 S , R ROM THE HETORIC INTRODUCTION R F in OG I...... 173 , L HE Denying Denial: Trauma, Memory, and Automobility at Road- Denying Denial: Trauma, Memory, and Automobility Roadside Memorials 1 ...... 184 , T Roadside Crosses and Memorial Complexes in Texas These memorials, which often feature a Latin cross, These memorials, which often feature 2 LORE 1. Public Forum A Limited 2. Public Forum Permissible Limits on a Limited . 182 Commandments on Public Property Violates the Property Violates on Public Commandments Does Not Sometimes It Clause, but Establishment . 165 Speech, Which Is Immune from Are Government but Sometimes They Are Free Speech Challenges, Public Property Private Speech on Property Violates the Establishment Clause, but Clause, Violates the Establishment Property It Does Not Sometimes TEINBECK S 91, 96 (2000); Jon K. Reid & Cynthia L. Reid, A. Ban on All Roadside Memorials Total B. Memorials Approach Toward Roadside Do-Nothing .C. Roadside Memorial Program State-Sponsored 178 A. Display of a Cr` Sometimes the B. of the Ten Government Display Sometimes a C. Property Religious Displays on Public Sometimes Cross Memorial OHN 341, 349, 352 (2001). 134 (Anne Teresa Demo & Bradford Vivian eds., 2012); Charles O. Collins & 134 (Anne Teresa Demo & Bradford Vivian Charles D. Rhine, Study of Roadside Death Memorials in Texas and Oklahoma side Car Crash Shrines V. Clause and the Establishment Roadside Crosses Private roadside memorials are part of a growing trend among the Private roadside memorials are part VI. Permissible Roadside Considering a Constitutionally 2. Robert M. Bednar, 3. Holly Everett, 1. J VII. Conclusion are part of deeply meaningful bereavement practices that support the are part of deeply meaningful bereavement grieving process. As such, these memorials are created to satisfy a and are, therefore, largely con- human need during a time of crisis legality of erecting such markers. structed without regard to the bereaved who seek to “make sense of senseless deaths” along the pub- bereaved who seek to “make sense lic roadways. Courts have yet to provide clear guidance on the constitutionality of Courts have yet to provide clear memorials on public spaces. erecting and maintaining these private guideposts for evaluating This Article considers the constitutional offers some practical solutions for roadside memorial crosses and the needs of the bereaved with the policymakers struggling to balance interests of the community. “It seems good to mark and to remember for a little while the place “It seems good to mark and to remember where a man died.” 2013] PUBLIC SPACE ON PRIVATE MEMORIALS 125 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 2 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 67 Side A 08/28/2013 10:13:22 A 08/28/2013 67 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 67 Side B 08/28/2013 10:13:22 R R R R R Two availa- MHERST cited in 9 LYMOUTH , A , P Scholars con- Scholars 6 8 . 579, 584 (2006); C. Allen , Oct. 6, 2007, at A1, TUD 2008 WLNR 16446088 (“Since Senseless deaths along Senseless S 4 Roadside Memorial Policies in the EPUBLIC EATH . R RIZ Authority from Grief, Presence and Place available at , 30 D , A 154, 163–64 (2010). 154, 163–64 10 f. Residents Condemn Roadside Gravestone note 2, at 226 (“Among the 18 deaths documented in the note 2, at 226 (“Among the 18 deaths documented 159, 162 (1997). note 4, at 161. ORTALITY note 3, at 341. note 3, at 347 (“The modal age was 17, with 11 [of 78] of the note 3, at 347 (“The modal age was 17, with supra , Aug. 30, 2008, at 5, MEGA note 9; c Leverett Neighborhood Wrestles with Weight of Cross Leverett Neighborhood Wrestles with Weight supra supra , 15 M supra Spontaneous Memorialization: Violent Death and Emerging Mourn- Spontaneous Memorialization: Violent Death ERALD , 35 O Arizona Removing Roadside Memorials: Families Upset Over State Pol- Arizona Removing Roadside Memorials: Families supra H , 2007 WLNR 27636278 (“The roadside memorials, [the Arizona Department 2007 WLNR 27636278 (“The roadside memorials, . (June 27, 2008), http://www.amherstbulletin.com/story/id/98909/, . (June 27, 2008), http://www.amherstbulletin.com/story/id/98909/, Roadside memorials are most often created by friends and most often created memorials are Roadside Public officials are often concerned about the visual distrac- often concerned about the visual Public officials are ULL VENING 5 7 Haney et al., the appearance of the inscribed headstone we [government officials] have re- ceived many complaints from local residents who find it very distressing to be reminded of this young man’s tragic death when they pass every day.”). of Transportation] says, are too much of a safety hazard and can be too distract- of Transportation] says, are too much of a ing for motorists.”). ble at in the Making of Roadside Memorials United States icy; Officials Point to Safety Concerns ing Ritual B George E. Dickinson & Heath C. Hoffmann, E survey, the average victim was 17, with a range from 7 months to 34 years.”); survey, the average victim was 17, with Reid & Reid, deceased being of this age. The next closest age in frequency was 19, with 4 decedents.”). See, e.g. Two instances, one from Massachusetts and the other from Austra- from Massachusetts and the other Two instances, one was struck and killed by In Ormeau, Australia, a nineteen-year-old These memorials are intensely personal, idiosyncratic expressions idiosyncratic personal, intensely are memorials These 5. Haney et al., 9. Nick Grabbe, 7. Reid & Reid, 4. Jennifer Clark & Majella Franzmann, 6. Collins & Rhine, 8. 10. Grabbe, homeowners who lived near the accident site wanted the cross re- lived near the accident site wanted homeowners who moved. of the the site at the end of one The cross commemorated years.homeowner’s driveway for over six The homeowners said it was night they and other neighbors a constant, painful reminder of the went to aid the dying teen. firm that public opinions about roadside memorials are mixed: “Some are mixed: about roadside memorials public opinions firm that some place them them, some are angered by them, claim never to see tend them regu- road and never go back, others by the side of the larly.” the roadways surprise and shock us because modern technological ad- modern technological shock us because surprise and the roadways over measure of control we have some us into thinking vances lull death. tion and traffic hazards these memorials can create. tion and traffic hazards family members of teenagers who die in car crashes. who die in of teenagers family members lia, illustrate some of the tension between the needs of the bereaved of the tension between the needs lia, illustrate some of the public.and the interests a sev- In Shutesbury, Massachusetts, teen’s father con- in a one-car accident, and the enteen-year-old died alive” place. cross to commemorate his “last structed a roadside a vehicle as he walked home. His memorial was thrice vandalized was taken down and the flow- when the teen’s laminated photograph motivated by a seemingly senseless death. by a seemingly motivated 126 NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 3 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 67 Side B 08/28/2013 10:13:22 B 08/28/2013 67 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 68 Side A 08/28/2013 10:13:22 R R , . see EV , 2012 15 (Queensl., This Ar- Endorsing a AIL Mixed Public- 14 , Oct. 4, 2012, at M note 4, at 587; . 571 (2011); Andy , 55 UCLA L. R EWS EV note 4, at 587. N . 365 (2009); Amy Riley UNDAY supra EV , S . L. R supra UL Courts Mistakenly Cross-Out . L. R ISSISSAUGA speech endorsing religion, ONN , 85 T M HE , 42 C , T private Clark & Franzmann, . 587 (2008). . 605 (2008); Claudia E. Haupt, speech endorsing religion, which the speech endorsing Mixed Speech: When Speech Is Both Private and Mixed Speech: When Speech Is Both Private EV Clark & Franzmann, EV The Measure of Government Speech: Identifying Ex- cited in cited in . 723 (2011) (arguing privately maintained roadside memorial . 723 (2011) (arguing privately maintained government Specialty License Plates: The First Amendment and the Inter- , 88 B.U. L. R EV Hard Road—Vandals Target Memorials 2012 WLNR 21153366 (“A Mississauga man [in Canada] is heart- 2012 WLNR 21153366 (“A Mississauga man Understanding the phenomenon is an important first Understanding the , 83 N.Y.U. L. R note 11, . 371 (2012) (arguing the Tenth Circuit incorrectly applied the en- . 371 (2012) (arguing the Tenth Circuit incorrectly L. R 13 EV 12 Identifying Government Speech , Caroline Mala Corbin, The note also admonished the teen’s parents that the the teen’s parents also admonished The note supra OFSTRA 11 Eric B. Ashcroft, Note, American Atheists, Inc. v. Davenport: Eric B. Ashcroft, Note, American Atheists, available at 39 H 1971 (2008); Helen Norton, BYU L. R Austl.), Feb. 11, 2001, at 7, 1, G. Olree, Lucas, Comment, crosses do not violate the Establishment Clause). crosses do not violate the Establishment v. Mergens, 496 U.S. 226, 250 (1990)). broken that items are continually being removed from his son’s roadside memo- broken that items are continually being removed rial in Georgetown.”) dorsement test by concluding the roadside memorial crosses violated the Estab- dorsement test by concluding the roadside Note, lishment Clause); Elizabeth A. Murphy, also Vandals Target Roadside Memorial Presumption of Unconstitutionality Against Potentially Religious Symbols Presumption of Unconstitutionality Against Private Speech and the Establishment Clause Memorials: Why the Establishment Clause is Not Violated by Roadside Crosses Memorials: Why the Establishment Clause pression’s Source Governmental section of Government Speech and Public Forum Doctrines See, e.g. Cf. Within the legal scholarship there has been no systematic exami- scholarship there has been no systematic Within the legal literature devoted to This Article canvasses the interdisciplinary 14. Educ. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000) (quoting Bd. of 15. 12. Steele, 11. Selina Steele, 13. ticle joins the legal scholarship exploring “mixed speech,” which is ticle joins the legal scholarship purely government speech. neither purely private speech nor which the Free Speech and Free Exercise Clauses protect.” which the Free Speech and Free Exercise Establishment Clause forbids, and Establishment Clause forbids, and step in analyzing the Free Speech and Establishment Clause issues the Free Speech and Establishment step in analyzing on public the presence of these private memorials that are raised by space.a crucial has emphasized that “there is The Supreme Court difference between roadside was not a gravesite and that the family should be thoughtful family should be and that the was not a gravesite roadside of the community. the proclaimed the teen’s parents In response, cross there never put the as necessary: “We for as long right to grieve family. It’s not al- This has absolutely gutted our to offend anyone. take it down when there, but it should be up to us to ways going to be we’re ready.” nation of the roadside memorial phenomenon or the animating forces memorial phenomenon or the nation of the roadside “last alive” place popularity of commemorating the behind the growing of a loved one. and then examines the Free the roadside memorial phenomenon 2013] removed.ers were the site explaining on the memorial A note was left PUBLIC SPACE ON PRIVATE MEMORIALS memorial [sic] endured this of Ormeau have “The community removal: far long feel that is by months and we one year and two site for enough.” 127 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 4 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 68 Side A 08/28/2013 10:13:22 A 08/28/2013 68 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 68 Side B 08/28/2013 10:13:22 However, 17 religious speech con- private The public roadways have not been 18 . It was never meant, and has never been read by government note 15, at 588. 16 supra Haupt, nected to the State only through its occurrence in a public forum.”). this Court, to serve as an impediment to purely See curring) (“[W]henever a government maintains a monument [that] has some re- curring) (“[W]henever a government maintains the Establishment Clause will behoove ligious character, the specter of violating a flat-out establishment of religion, in it to take care to avoid the appearance of the tenets expressed or symbolized.”). the sense of the government’s adoption of (plurality opinion) (“By its terms [the Establishment] Clause applies only to the words and acts of Private religious speech in a designated or traditional public forum Private religious speech in a designated The unresolved question that is explored in Part V is whether a The unresolved question that is 18. 17. Bd. v. Pinette, 515 U.S. 753, 767, 770 (1995) Capitol Square Review & Advisory 16.J., con- Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 486 (2009) (Souter, private religious speech may lose its “purely private” nature by its private religious speech may lose placement in a public space. treated as traditional public fora where individuals can express them- treated as traditional public fora where or limitation.selves without government restraint And by not remov- it is unclear if a government runs ing the private religious displays, is generally free from Establishment Clause concerns. is generally free from Establishment government creates grounds for an Establishment Clause challenge government creates grounds for crosses to remain along public by either erecting or allowing roadside roadways. are for states that al- It is unclear what the consequences on public roadways.low private memorial crosses to remain It is also state-sponsored markers are sup- unclear what happens when official, religious messages, which the gov- plemented with private crosses and ernment does not remove. 128Clause Establishment and the makers of memorial interests Speech public roadways. private crosses along raised by having concerns Part me- behind the roadside animating forces the history and I describes morial phenomenon. and public policies public opinion Part II traces roadside memorials.regarding growing phenome- In response to this of regula- a patchwork have adopted and local policymakers non, state NEBRASKA LAW REVIEW memorials to from allowing and promoting roadside tions that range all privately made memorials.banning and removing Public senti- respecting range of policies with some individuals ments mirror this the community crosses, while others within and applauding roadside [Vol. 92:124 the public road- eyesores that seek to sanctify object to the macabre ways. out the Free Speech and Establishment Parts III and IV set phenomenon within which the roadside memorial Clause framework rests. a marker have a Free Speech claim to erect Memorial makers must be care- place of a loved one, and governments on the “last alive” violate the Estab- to endorse a religious message and ful not to appear to remain on by allowing religiously themed markers lishment Clause public property. \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 5 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 68 Side B 08/28/2013 10:13:22 B 08/28/2013 68 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 69 Side A 08/28/2013 10:13:22 A Gov- , 104 The Gov- oral argu- The Su- The 19 and the Govern- reflected this reflected Summum , 515 U.S. at 800 (Stevens, , 555 U.S. 460 (2009) (No. 07-665). . 1 (2009); Erwin Chemerinsky, EV , July 2009, at 60; Mary Jean Dolan, . J. 1 (2010); Lisa Shaw Roy, Pleasant Grove Summum L. R TS RIAL R see also Capitol Square Pleasant Grove City v. Summum , T RAKE ILL B 280 (2010). ARY , 58 D 21 . & M OLLOQUY Monuments, Messages, and the Next Establishment Clause M . C Pleasant Grove City, Utah v. Summum Grove City, Utah Pleasant , 555 U.S. at 471; EV Therefore, according to the Court, “Because property the Court, “Because according to Therefore, , 555 U.S. at 471. 20 [Y]ou’re really just picking your poison, aren’t you? I mean, the more you [Y]ou’re really just picking your poison, aren’t to get out of the . . . Free say that the monument is Government speech walking into a trap under Speech Clause, the more it seems to me you’re the Establishment Clause. If it’s Government speech, [declining to dis- monument in a public park] play Summum’s “Seven Aphorisms” stone what is the Government do- may not present a free speech problem, but the Ten Commandments? supporting ing speaking – at 471. A government that speaks through a religious display is making a . U. L. R W N ment reflected this danger. Transcript of Oral Argument at 4, J., dissenting) (“[S]igns and symbols are generally understood to express the J., dissenting) (“[S]igns and symbols are [property] owner’s views.”). This tension has not escaped scholarly attention. Blake R. Bertagna, City v. Summum: Dangerous Free Speech Ruling ernment Identity Speech and Religion: The Establishment Clause Limits After ment Speech Doctrine ernment’s Ten Commandments: dangerous gamble. Chief Justice Roberts’s first question at Summum, 19 W See Summum Summum Id. Constitutionally permissible avenues for policymakers to address permissible avenues for policymakers Constitutionally Monuments and symbols are subject to more than one interpreta- symbols are subject to more than Monuments and 20. 21. 19. preme Court in preme Court position when it explained, “It certainly is not common for property is not common for “It certainly when it explained, position permanent installation of property for the open up their owners to wish to be they do not message with which that convey a monuments associated.” owners typically do not permit the construction of such monuments on of such monuments the construction do not permit owners typically routinely—and who observe donated monuments their land, persons reasonably—interpretthe prop- as conveying some message on them erty owner’s behalf.” roadside memorials are discussed in Part V.roadside memorials are discussed Governments that create to express the two-fold mes- a limited public forum for the bereaved and caution to other drivers may sage of remembrance of the deceased of the memorial makers.satisfy the Free Speech interests Addition- about government endorsement ally, Establishment Clause concerns government consistently applies of religion may be forestalled if the and topics and also disclaims viewpoint-neutral criteria for speakers control or endorsement of the message. tion. a message and symbols can communicate And these monuments than one speaker.on behalf of more undoubtedly The roadside crosses motivated to erect the private individuals who were speak on behalf of them. prop- crosses to remain on public But, by allowing the roadside message of the me- may also passively adopt the erty, the government morial cross. 2013] message. religious adopt the to tacitly of appearing the risk PUBLIC SPACE ON PRIVATE MEMORIALS 129 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 6 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 69 Side A 08/28/2013 10:13:22 A 08/28/2013 69 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 69 Side B 08/28/2013 10:13:22 R R R R R R R In , 292 ISE OF 29 Road- R HE 32 : T OURNING M These sanctified and And while it is a rela- And while it is 30 UBLIC , P 27 15 (2009). RIEF G 26 OLUMBIA note 9, at 154. RIVATE C , P note 9, at 155. supra note 4, at 580 (“[T]he practice has proliferated in the note 4, at 580 (“[T]he practice has proliferated 31 RITISH URVEY This blended, or syncretic, expression is This blended, or B note 2, at 236 (“[I]t becomes evident that most roadside note 2, at 236 (“[I]t becomes evident that P note 2, at 222–23. note 2, at 224–25. note 2, at 221; Holly J. Everett, Crossroads: Roadside note 2, at 221; Holly J. Everett, Crossroads: supra This phenomenon, scholars explain, “is part of This phenomenon, Roadside Memorials: Sacred Places in a Secular Era Roadside Memorials: Sacred Places in a Secular 28 This new social trend has proliferated over the This new social trend supra As scholar Keith Suter notes, “Death has moved “Death has Keith Suter notes, As scholar 25 IANE 23 Scholars argue that while it is a new social trend, Scholars argue that supra MEMORIAL PHENOMENON MEMORIAL supra supra supra 22 HRINE IN 24 & D . 51, 51 (2010) (“The creation of ad hoc ephemeral memorials (as . 51, 51 (2010) (“The creation of ad hoc ephemeral S EV THE . R , Keith Suter, ELSHAW OADSIDE B R ; Dickinson & Hoffmann, at 225. ONTEMP OHN C distinct from stone or other permanent memorials) had suddenly become a fact of distinct from stone or other permanent memorials) contemporary life.”). Id. Accident Memorials in and Around Austin, Texas 51 (June 30, 1998) (unpub- lished M.A. thesis, Memorial University of Newfoundland). Id. See, e.g. Id. of scholars and journalists who argue last 15 odd years and drawn the attention they represent a new social trend.”). someone’s abiding involvement with a memorials are not the product of a fad but place.”). II. ROADSIDE OF THE AN UNDERSTANDING TOWARD The nationwide diffusion of roadside memorials can be seen in diffusion of roadside memorials The nationwide longer just an idiosyncratic, ru- Today, roadside memorials are no The roadside memorial phenomenon is growing in popularity phenomenon is memorial The roadside 27. Collins & Rhine, 23. 30. Dickinson & Hoffman, 25. Collins & Rhine, 26. J 28. 29. Collins & Rhine, 31. Collins & Rhine, 32. 22. 24. Clark & Franzmann, the American Southwest, small white crosses were placed at the road- small white crosses were the American Southwest, procession pallbearers travel- side to mark the rest areas for funeral graveyard. ing by foot from the church to the side memorials are becoming an international phenomenon and are side memorials are becoming an Australia, the Middle East, Eu- along the roadways in New Zealand, holy rest areas, called “descansos”—which means “resting places” in Spanish—have to commemorate deaths since evolved into memorials at traffic fatality locations. tively recent trend around the country, in some southwestern states, around the country, in some southwestern tively recent trend practice dates back New Mexico, and Arizona, the especially Texas, years. more than 200 thought to reflect Hispanic, Catholic, and indigenous influences. Hispanic, Catholic, and indigenous thought to reflect a longer and complex story about the meaning of both death and griev- story about the meaning of both a longer and complex time and place.” ing in a particular past two decades. out of the cemetery.” it is not merely a fad. it is not merely a every state, including Hawaii and Alaska. every state, including be seen across the globe. ral, southwestern practice; they can across the country. across the 130A. in Popularity Are Growing Memorials Roadside NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 7 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 69 Side B 08/28/2013 10:13:22 B 08/28/2013 69 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 70 Side A 08/28/2013 10:13:22 R R R R R R ER- AND xiii, , 173 NFLU- , Mat- I Getting & P 34 Rather 37 EXT ATIENT 40 P . 23, 24 (2008); ULTURAL Death is no , 22 T IST YING C NSTITUTIONS 41 H D ND , I HE A . 146, 146 (2011) (“The T EV in ALUES Death has moved out Death has moved , OCIAL . R RANSPORT 39 : V : S note 22, at 57. TUD IFE S EATH L , 29 J. T supra D Death and Grief in the Landscape: Pri- 8 (1988). ULTURAL IDST OF Roadside memorials are erected in are erected memorials Roadside M 33 note 9, at 155; Rebecca M. Kennerly, , 17 C OURNING ONFRONTING M New Dimensions of Dying , C supra note 2, at 234. note 36, at xvii. EATH IN THE Notifying Survivors About Sudden, Unexpected Deaths Notifying Survivors About Sudden, Unexpected OLLER note 4, at 169; Suter, RIEF AND , D 112 (1996) (noting that modern advances have made death 112 (1996) (noting that modern advances supra M , G supra Challenging Motoring Functionalism: Roadside Memorials, Heri- Challenging Motoring Functionalism: Roadside In North America, nearly three-quarters of all In North America, note 3, at 91. note 2, at 134. supra 38 EATH ., 261, 262 (2000) (“In the United States and Canada, about 70% of ., 261, 262 (2000) (“In the United States ORTALITY AMERMAN Q. 229, 240–41 (2002). Q. 229, 240–41 FORMANCE ENCES ON ENDELL D supra supra ED With modern advances, people are living longer, healthier With modern advances, M W B. K 35 And consequently, we are less accustomed to death, and a And consequently, we are less accustomed 43 and death is less present in our daily consciousness. and death is less UMAN AVID 42 ACK 36 xvi (Orville G. Brim, Jr. et al., eds., 1981) (noting “whereas half the population xvi (Orville G. Brim, Jr. et al., eds., 1981) live beyond the age of 70”). used to die before the age of 40, half now W. J. M Dickinson & Hoffmann, place and space of death is highly managed and regulated in modern society, cre- place and space of death is highly managed will be largely absent and invisi- ating the taken-for-granted attitude that death ble in most everyday environments.”). “culturally invisible”); Margaret Gibson, deaths occur in health care institutions . . . .”). deaths occur in health care institutions . Messy: In the Field and at the Crossroads with Roadside Shrines Messy: In the Field and at the Crossroads vate Memorials in Public Space tage & History in Australia & New Zealand Id. H Unexpected, violent deaths of individuals participating in the rou- Unexpected, violent deaths of individuals In our modern society, death is professionally managed and largely death is professionally managed In our modern society, 37. Bednar, 36. Howard E. Freeman et al., 43. Haney et al., 34. Everett, 40. Freeman et al., 38. Collins & Rhine, 39. Kenneth V. Iserson, 41. 42. J 33. Jennifer Clark, 35. D ters of death are handed over to the professionals: law enforcement, handed over to the professionals: ters of death are funeral directors, technicians, doctors, coroners, emergency medical and ministers. than caring for dying family members in the home, the current trend family members in the home, than caring for dying care to third-party professionals. is to outsource that longer an integrated part of life; it is insulated within institutions of part of life; it is insulated within longer an integrated death. of the home and into professional institutions, with the majority of into professional institutions, with of the home and homes. place in hospitals and nursing deaths now taking both rural and urban spaces: “Shrines are erected on busy street cor- erected on busy “Shrines are and urban spaces: both rural medians restaurants, in the and fast food to megastores ners adjacent on private property.” freeways, and roadways and of multilane deaths today occur in health care institutions. deaths today occur lives, sudden, unexpected death often leaves the bereaved traumatized and sudden, unexpected death often leaves shocked. tines of life that we think are safe, such as daily commutes, are consid- tines of life that we think are safe, invisible. 2013] Americas. and the Japan, rope, PUBLIC SPACE ON PRIVATE MEMORIALS 131 B. a “Bad Death” Death Is Road \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 8 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 70 Side A 08/28/2013 10:13:22 A 08/28/2013 70 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 70 Side B 08/28/2013 10:13:22 R R CCI- RAFFIC ., http:/ T available 483, 483 , 41 A DMIN A Effects of Road- IGHWAY H REVENTION AFETY L ’ S AT In spite of the sta- & P 3, 5 (Margie Peden et al. , N 48 : 2012 693 (2011), RAFFIC 51 T NALYSIS TATES A S REVENTION IGHWAY P H NITED L ’ CCIDENT U AT NJURY I , N , 43 A 663, 663 (2009); Richard Tay et al., 207, 213 (1991). The World Health Organization estimates The World Health RAFFIC T http://www.who.int/violence_injury_prevention/publica- 47 MEGA OAD BSTRACT OF THE Anthropologist David Lee Kozak explains the explains Lee Kozak David Anthropologist Traffic Safety Facts Crash Stats REVENTION R A Dying Badly: Violent Death and Religious Change Among the Dying Badly: Violent Death and Religious , 23 O 44 49 In developed nations, traffic fatalities are becoming In developed nations, note 39, at 261. & P . (Apr. 2011), http://www-nrd.nhtsa.dot.gov/Pubs/811451.pdf (not- . (Apr. 2011), http://www-nrd.nhtsa.dot.gov/Pubs/811451.pdf Drivers’ Perceptions and Reactions to Roadside Memorials Drivers’ Perceptions and Reactions to Roadside 46 note 22, at 54 (“A person dies in a road accident somewhere around note 22, at 54 (“A person dies in a road accident available at DENT DMIN EPORT ON 45 supra TATISTICAL A NALYSIS R supra A Sociology professor Kathy Charmaz confirms that a sudden death, in which The unexpected death leaves survivors in a different type of The unexpected death leaves survivors ORLD http://www.census.gov/prod/2011pubs/12statab/trans.pdf (showing that the http://www.census.gov/prod/2011pubs/12statab/trans.pdf AFETY 50 /www-fars.nhtsa.dot.gov/Main/index.aspx (last visited December 15, 2012) (show- /www-fars.nhtsa.dot.gov/Main/index.aspx 1994 to 2009 and noting The Na- ing motor vehicle crashes and fatalities from (NHTSA) reported 30,797 fatal car tional Highway Traffic Safety Administration crashes for 2009); (2011). eds., 2004), tions/road_traffic/world_report/chapter1.pdf. ing NHTSA also reported 33,808 motor vehicle deaths in 2009 and 32,788 in ing NHTSA also reported 33,808 motor 2010); S at side Memorials on Traffic Flow there is “no particular anticipation, suggestion, or wish,” has the capacity to U.S. Census Bureau reported 35,900 deaths caused by motor vehicle accidents in U.S. Census Bureau reported 35,900 deaths 2009). Tohono O’Odham Id. Id. See FARS Data Tables, Summary S the world every 30 seconds.”). A road fatality is often shocking to friends and family because the often shocking to friends and family A road fatality is In the United States, more than 30,000 people die in traffic colli- more than 30,000 people die In the United States, 50. Iserson, 45. 49. Richard Tay, 47. Suter, 48. W 51. 44. David Lee Kozak, 46. tistics on road deaths, the public generally perceives driving to be a the public generally perceives tistics on road deaths, safe activity. notes that and road safety expert Richard Tay Professor are often received safety, “road fatalities because of this perceived with great shock.” 1.2 million people are killed in road crashes each year worldwide, re- are killed in road crashes each 1.2 million people costs exceeding $500 billion. sulting in economic difference between a “good death” and a “bad death”: “A ‘good’ death is death”: “A ‘good’ death” and a “bad between a “good difference or a prolonged sickness, is due to old age, any death that essentially therefore expected. gradually and is death that comes ‘natural’ ‘bad’ A therefore unpredicted, and sudden, violent, . is one that is death . . ‘unnatural.’” a leading cause of death. a leading cause of shock and affects the grieving process in a different way than does an shock and affects the grieving process expected death. Such deaths, Dr. Iserson explains, “strike blows to left behind.” the very essence of life for those sudden, unexpected death of a young, healthy person violates our ex- death of a young, healthy person sudden, unexpected pectations. ex- and bioethics Kenneth Iserson Professor of surgery survivors unprepared for the plains that a sudden death “leaves loss.” sions each year. 132 “bad deaths.” ered NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 9 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 70 Side B 08/28/2013 10:13:22 B 08/28/2013 70 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 71 Side A 08/28/2013 10:13:22 R 56 SY- ATHY ENTAL Even (1993). , 20 P 52 , 33 J. M OURNING M . 515, 515–20 (2004) . 515, 515–20 (3d ed. 2009); Grace ED M HILD C Complicated grief, on Complicated grief, 58 OMPLICATED 54 C DOLESCENT EATH OF A Bereavement: Signs, Symptoms, and 142 (1980). D & A EATH REATMENT OF N THE D , T 649, 650 (2008). , O Psychiatric Complications of Bereavement EDIATRICS P ANDO NNALS However, for some people, “complicated for some people, However, EALITY OF A A. R R INDMARCH 53 4, 4 (2011). RCHIVES Parents’ Assessment of Quality of Care and Grief Following a Parents’ Assessment of Quality of Care and Concepts and Controversies in Grief and Loss H 314, 314–17 (1990). 314, 314–17 note 52, at 4. OCIAL ELIA HERESE S C T , 158 A SYCHIATRIC HE NNALS supra OUNSELING CHIATRIC , T A C , 38 P Complicated grief, according to Dr. Howarth, “is character- Complicated grief, 55 at 5. EALTH HARMAZ Thus, complicated grief and bereavement should be expected Thus, complicated grief and bereavement A. Seecharan et al., (finding fathers and mothers had similar levels of grief, and mothers who exper- ienced the sudden death of a child had somewhat more intense grief reactions than those whose child died of a chronic condition). Course Child’s Death See generally See generally “temporarily disrupt[ ] the character of ordinary events” for the bereaved. K C H Id. 57 Neuropsychologist Robyn Howarth confirms that “[t]he loss of a loss that “[t]he confirms Howarth Robyn Neuropsychologist 58. 52. Robyn A. Howarth, 57. 53. Selby Jacobs & Kathleen Kim, 54. Howarth, 56. Paula L. Hensley & Paula J. Clayton, 55. though distressing, the majority of bereaved individuals experience individuals of bereaved the majority though distressing, grief.” “uncomplicated the other hand, deviates from the norm in duration and symptom in- from the norm in duration the other hand, deviates tensity. grief” follows sudden, traumatic, and unexpected losses. and unexpected sudden, traumatic, grief” follows Dr. Howarth diffi- the emotional grief: “Despite normal, uncomplicated explains a ‘normal’ grieving loss, most people experience culty associated with and even they endure a period of sorrow, numbness, process in which feelings as the by a gradual fading of these guilt or anger, followed loss and moves forward.” griever accepts the ized by a sense of disbelief, anger and bitterness, recurrent emotional disbelief, anger and bitterness, recurrent ized by a sense of thoughts of the and longing, and preoccupation with pangs, yearning about the death.” often include intrusive thoughts deceased, which for road deaths of young, healthy individuals. for road deaths of young, healthy loved one is one of the most distressing emotional experiences people experiences distressing emotional is one of the most loved one at some point.” will deal with grief virtually everyone face, yet and unexpected that the sudden, traumatic, Researchers confirm for a par- one of the most intense grief experiences death of a child is ent. 2013] PUBLIC SPACE ON PRIVATE MEMORIALS 133 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 10 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 71 Side A 08/28/2013 10:13:22 A 08/28/2013 71 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 71 Side B 08/28/2013 10:13:22 R R R R R R R R R R R 59 see & See supra ITY 63 . C M Scholars they often , A 62 60 Kennerly, See also Id. Roadside crosses are Roadside crosses 64 For some memorial mak- For some memorial 65 The cross can represent amor- The cross can represent note 26, at 67. 66 supra note 4, at 580 n.i (finding that out of 430 road- note 4, at 580 n.i (finding that out of 430 , note 9, at 156 (“[R]oadside memorials carry tre- note 9, at 156 (“[R]oadside memorials carry note 9, at 164. Moreover, “The cross is typically In constructing roadside memorials, build- roadside In constructing supra URVEY supra supra 61 note 2, at 229–30 (“Here, then, appears to be a dichotomy: note 2, at 229–30 & P note 3, at 349 (finding in a study of seventy-eight roadside note 3, at 349 (finding in a study of seventy-eight note 33, at 35 (“The cross acts as the central element from note 33, at 35 (“The cross acts as the central supra note 3, at 91. supra ELSHAW note 33, at 34 (“The cross is a recognisable [sic] Christian symbol, note 33, at 34 (“Visual similarities—and there are many—point to supra supra , May 1, 1998, at 50, 53 (“Memorial supporters acknowledge religious con- supra supra Roadside Memorials: Public Policy vs. Private Expression Clark, Clark & Franzmann, memorial when a religious symbol is displayed.” OUNTY C the also also which other elements radiate, because the cross as body forms an easy structure which other elements radiate, because the build other elements.”). upon or around which to hang, display, or but it is most likely used by memorial makers as a symbol of death. At the same time the cross physically separates a sacred place from a secular space.”); Chris Ross, roadside memorialisation [sic] as an identifiable phenomenon.”). roadside memorialisation [sic] as an identifiable in seventy-three of the sites); memorials, crosses were featured prominently Space: A Rural Community Response Deborah L. Wagner, Death, Memory, and M.A. thesis, University of to Roadside Memorials 4 (August 2008) (unpublished (“Of the sites identified in this study, Texas at San Antonio) (on file with author) feature and of these 100 percent were 85 percent incorporated a cross into the than the horizontal crossbar).”); Latin crosses (the vertical length is greater identified between 1989 and 2004, side memorials in Australia and New Zealand primary structure). 93% of the memorials used a cross as the design of memorials but apparently crosses are overwhelmingly employed in the a reflex as opposed to an intentional more as a matter of cultural integration, i.e., or denominational sense.”). or specific act of faith, at least in an institutional note 33, at 240–41 (“While roadside shrines have appeared consistently and (“While roadside shrines have appeared note 33, at 240–41 suggests that the practice is not profusely in the Southwest, further research linked to any particular geographic region.”). mendous diversity in style and origin.”). homogenous in their origin, their kind, their meaning, or their intent. origin, their kind, their meaning, or their homogenous in their This is true within some regions and internationally. But in their diversity, there is a sameness.” B Roadside memorials are not limited to any religion or heritage. not limited to any memorials are Roadside the symbol is often used in roadside memorials, While crosses are 65. Everett, 60. Dickinson & Hoffmann, 61. Clark, 62. Reid & Reid, 63. Dickinson & Hoffmann, 66. Clark, 64. Collins & Rhine, 59. “roadside shrines are not John Belshaw and Diane Purvey confirm Researchers who have studied roadside memorials confirm that “[t]he one univer- that “[t]he memorials confirm studied roadside who have exists, is that the roadside memorials, if indeed any sal theme among . . . .” feature of most roadside memorials cross is a dominant share common qualities. share common multivocal and can be used to communicate a range of meaning, from be used to communicate a range multivocal and can to the quasi-secular. the plainly religious ers, the Latin cross is used as a generic marker of death rather than is used as a generic marker of ers, the Latin cross Christian symbol. as an exclusively ers overwhelmingly choose a Latin cross as the focal point. a Latin cross as choose ers overwhelmingly not always used for purely religious reasons. not always used 134C. Roadside Memorial the Constructing and unique, are individual roadside memorials And while NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 11 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 71 Side B 08/28/2013 10:13:22 B 08/28/2013 71 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 72 Side A 08/28/2013 10:13:22 R R R R R R R R Often, The to- note 33, at YSTERY AND 69 71 , M supra note 3, at 91–92 IME , T supra PACE : S OVE L note 9, at 154 (“The memorial may be supra EOMETRY OF 32 (2000) (identifying and analyzing the cross G note 2, at 230 (noting “the widespread and some- note 2, at 230 (noting “the widespread and HE note 4, at 591 (“The memorial cross has become a note 4, at 591 (“The memorial cross has HURCH , T note 33, at 35–36 (identifying and analyzing the cross note 33, at 35–36 The Latin cross can also symbolize the cross can also The Latin supra C 68 supra ISSER supra V and may be a popular choice to generically sym- to generically choice a popular may be and RDINARY 67 note 2, at 129. O note 33, at 35. Clark, ARGARET M Some of these memorials have new objects added for spe- have new objects added for Some of these memorials supra with , Collins & Rhine, supra 72 (“The use of the cross may, in fact, be little more than an attempt to find (“The use of the cross may, in fact, be little 70 EANING IN AN as a representation of the human form reflected in the architecture of a church; as a representation of the human form reflected “A church is often cross-shaped—that is, in the form of a human body, with the by the apse, and the heart by the arms constituted by the transept, the head altar.”), culturally appropriate symbols to express death and the sacred, where there is a culturally appropriate symbols to express offered by institutional religion.”). paucity of such symbols apart from those (noting roadside memorials “incorporate any number of changing elements, in- (noting roadside memorials “incorporate toys, photographs, ceramic figurines, cluding flowers (both fresh and artificial), statuettes and pictures, rosaries), sea- handwritten notes, religious objects (saint or Easter eggs, and car parts sonal decorations such as Christmas ornaments collected from the wreckage of the inciting accident”); Kennerly, 235 (noting the artifacts or tokens left at the memorial can include personal items, like a hard hat, boots, cigarette lighter, a shot glass, jewelry, wind chimes or toys, or automobile parts from the wreckage, or religious items, like a rosary, crucifix, and statues of the Virgin Mary or other saints). M of the fragility of the human body; in roadside memorials as a visual depiction stark than on the road at Huntly be- “Nowhere is their pattern clearer or more where a life-size cross wears a tween Hamilton and Auckland in New Zealand black jacket.”). See, e.g. notes, poems, photos, music tapes, times prolonged practice of leaving flowers, frequently, beer, pretzels, or candy at CDs, scarves, pinwheels, balloons, and less the site”); Dickinson & Hoffmann, jersey, a toy, photograph, or some decorated with flowers, a teddy bear, a football Everett, other personal item of the deceased person.”); cerns, but feel that the use of the cross symbol as a marker of death is so practical use of the cross symbol as a marker of death cerns, but feel that the symbolism.”). essentially transcends the original Christian and universal that it detached from any particular symbol of amorphous spirituality easily institution.”). Id. Compare Some roadside memorials are only a simple white cross, whereas are only a simple white Some roadside memorials 69. 70. Clark, 67. Clark & Franzmann, 68. 71. Bednar, 72. in multiple-person fatalities, a separate cross is used to represent each is used to represent a separate cross fatalities, in multiple-person person. kens incorporated into the elaborate displays can include flowers, can- into the elaborate displays can include kens incorporated sports equipment, photographs, rosaries, scarves, dles, teddy bears, car parts from the poems, and music, as well as handwritten notes, wreckage. human form, with the horizontal crossbar representing outstretched crossbar with the horizontal human form, head and body. representing the the vertical beam arms and bolize death because of the dearth of other appropriate symbols to appropriate the dearth of other because of bolize death a death. commemorate cial occasions such as birthdays, holidays, and the anniversary of the as birthdays, holidays, and the cial occasions such others include elaborate displays of objects and mementos. others include elaborate 2013] spirituality phous PUBLIC SPACE ON PRIVATE MEMORIALS 135 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 12 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 72 Side A 08/28/2013 10:13:22 A 08/28/2013 72 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 72 Side B 08/28/2013 10:13:22 R R R R R R R R R R R 83 Me- While 80 74 note 2, at 230; note 2, at 232. supra supra which is often on 76 at 582. Id. The meaning and sacred- The meaning and Even when memorials are Should Roadside Memorials Be 81 82 note 22, at 53. supra Often memorial makers take great ef- Often memorial note 9, at 154. 78 note 3, at 98 (“[F]or some of those whom I inter- note 3, at 98 (“[F]or some of those whom note 4, at 589 (“There is material evidence at the note 4, at 589 (“There is material evidence note 2, at 228. Professor Emerita of Anthropology note 4, at 590; Collins & Rhine, note 4, at 590; Collins & Rhine, note 4, at 589. an Roadside memorials “demonstrate supra note 2, at 226. note 2, at 227–28. supra The “last alive” place has deeply meaningful The “last alive” supra supra (July 12, 2009, 7:00 PM), http://roomfordebate.blogs.ny- supra supra supra 77 75 supra supra IMES note 29 (thesis at 133). note 33, at 38; Suter, N.Y. T supra supra Professor of Folklore Holly Everett explains, “Items placed at placed “Items explains, Holly Everett Folklore of Professor Collins & Rhine, at 579. The bereaved are often willing to “kick up a fuss” to erect a memorial. (observing “more and more families and friends touched by tragedy are willing at 228. 73 Clues like blood stains and tire tracks on the ground where a stains and tire tracks on the ground Clues like blood times.com/2009/07/12/should-roadside-memorials-be-banned/. to ‘kick up a fuss,’ assume authority to express their grief in ways that implicitly Banned?, eclectic use of traditional mourning symbols unprescribed and undirected by any recognized or authorized practitioner of ritual.” Id. Id. Dickinson & Hoffmann, the deceased takes place, and that the memorial sites that communication with way and capable of receiving the com- deceased is believed to be present in some munication.”); Everett, where their loved one was conscious, viewed, the accident site was the last place of clinical death.”). and thus really ‘alive,’ regardless of the place Id. See regard roadside crosses as sacred but Sylvia Grider confirms that “many people not necessarily religious.” Sylvia Grider, Because of the meaningfulness of the place, these memorials often of the place, these Because of the meaningfulness Another common feature of roadside memorials is that they are feature of roadside memorials Another common 79 83. 82. Clark & Franzmann, 81. 79. Collins & Rhine, 73. Clark & Franzmann, 74. Everett, 75. Clark & Franzmann, 76. Clark, 77. Collins & Rhine, 78. Clark & Franzmann, 80. morial makers treat this space as sacred. morial makers treat the tokens or “offerings” are often left at a roadside memorial by at a roadside memorial are often left or “offerings” the tokens add strangers sometimes of the deceased, family members friends and too. to the memorial, a public right-of-way. unlawful, family and friends assert a self-proclaimed sense of author- unlawful, family and friends assert as scholars Jennifer Clark and ity to erect the memorial because, bereaved’s authority is “drawn from Majella Franzmann explain, the in the spiritual presence of the de- the intensity of grief, from a belief sense of the importance of place.” ceased, combined with a profound ness of the space comes from the spilled blood at the accident site. comes from the spilled blood at ness of the space own sense of sense of spirituality and the maker’s reflect a blended what ritual is appropriate and necessary. fort to identify precisely where they believe the “last alive” place to where they believe the “last fort to identify precisely be. significance for the bereaved. significance for the many of the crosses reflect an ongoing dialogue with the deceased with the an ongoing dialogue the crosses reflect many of of missed the continuation railings), and on bridge (notes, inscriptions tassels).” mums, graduation (toys, homecoming celebrations vehicle stopped are often used to identify the now sacred place. often used to identify the now vehicle stopped are created as close as possible to the “last alive” place, created as close as 136death. NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 13 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 72 Side B 08/28/2013 10:13:22 B 08/28/2013 72 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 73 Side A 08/28/2013 10:13:22 R R R R R But it 89 113, 114 (1997). note 89, at 114. And this warning to Clark and Franzmann Clark and 90 OLKLORE supra 84 , 108 F note 4, at 162 (“Spontaneous memoriali- Professor of communication stud- Professor of communication 86 supra at 587. 85 Id. Haney et al., Modern Wayside Shrines note 29 (thesis at 185). note 29 (thesis at 179) (“Viewing the crosses as cautionary and note 29 (thesis at 178); Monger, note 2, at 137. See also 87 supra supra supra supra 91 The roadside memorial can serve as a pilgrimage site for The roadside memorial can serve at 588. As evidenced by the behavior of the memorial makers, it appears at 588. happen to you or someone who loves you or someone you love— happen to you or someone who loves 88 these memorial makers believe “the mourning family has the moral authority to these memorial makers believe “the mourning precedence over government regula- express their grief and that this should take tions and concerns.” Id. potentially life-saving helps those who have lost a loved one in a fatal collision locate meaning in an otherwise senseless death.”). and explicitly challenge the authority of church or state, and transform the road- and explicitly challenge the authority of church side into their own sacred space”). Id. Id. norms which prescribe the amount zation is not constrained by culturally-based the appropriate amount of time for of time allotted for ritual action nor bereavement.”). This should not have happened; I do not accept this as a matter of course; I happened; I do not accept this as a matter This should not have I have, I ignore it either; by building this shrine where will not allow you to to let you story public; I refuse to forget, and I refuse am making my personal forget either. Private memorials on public space, made sacred by the death of a Private memorials on public space, Roadside memorials communicate in a way grave markers tucked communicate in a way grave Roadside memorials this 90. Everett, 85. 84. 86. Everett, 87. Bednar, 88. 89. George Monger, 91. Everett, where ‘this’ is not only the crash and the death but also the materially where ‘this’ is not only the crash and can also serve as a warning to other drivers. can also serve as a warning to other others can help the bereaved find meaning in an otherwise meaning- others can help the bereaved find less death. note that mourners are “willing to take grief out of the confines of the out of the confines to take grief mourners are “willing note that of the spiritual boundaries emotional and and beyond the cemetery recogniz- sacred place fully a new construct for themselves church, to know those who grieve and only this process is open-ended ing that is time to stop.” when it ies Robert Bednar has examined the roadside memorial phenomenon has examined the roadside memorial ies Robert Bednar dual message of the memorials.and articulates the one hand, On the the message is: family and friends to remember and respect the deceased. family and friends to remember present grief and anguish that drives the construction of the shrine present grief and anguish that drives itself.” loved one, may be an attempt to counter a meaningless and anony- loved one, may be an attempt to away in a quiet cemetery cannot. away in a quiet cemetery On the other hand, Professor Bednar notes the memorials say: “[D]on’t On the other hand, Professor Bednar let 2013]to em- appears of mourners knowledge moral higher perceived The PUBLIC SPACE ON PRIVATE MEMORIALS way they desire. to grieve the power them 137 D. of the Roadside Memorial The Message \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 14 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 73 Side A 08/28/2013 10:13:22 A 08/28/2013 73 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 73 Side B 08/28/2013 10:13:22 R R R R R R R R R R note Ritu- supra Grieving 4 (Mark S. Roadside Me- Therefore, 96 IFE 94 L Roadside Crosses: note 4, at 594 , July 12, 2011, at 11. Haney et al., supra ELIGIOUS Roadside memorials note 3, at 96; Reid & Reid, 103, 103–04 (1999) (“In es- 103, 103–04 R ENTURY 97 C See also supra . 697, 698 (1998). 95 OLKLORE ORMS OF TUD Roadside memorials mark and memorials mark Roadside F HRISTIAN S C 93 , 110 F HE The proliferation of roadside memo- The proliferation EATH , T 99 note 97, at 699. note 9, at 155; MacKenzie Scott, LEMENTARY , 22 D E supra HE supra note 4, at 169. note 2, at 230; Everett, , T note 4, at 160; Bronna D. Romanoff & Marion Terenzio, note 4, at 160; Bronna D. Romanoff & Marion supra supra note 35, at 150. Scholars posit that this deritualization and deteriora- Scholars posit that this deritualization supra URKHEIM And while the deceased are interred elsewhere, for deceased are interred elsewhere, And while the note 33, at 29–30. note 33, at 27–28 (“The memorials serve as an expression of resent- (“The memorials serve as an expression of note 33, at 27–28 Road deaths are largely anonymous as modern forces as modern anonymous are largely deaths Road D 100 98 101 92 supra supra supra note 3, at 351. MILE ´ E Romanoff & Terenzio, Haney et al., at 30. 4, at 168 (“Since most death in America is controllable and invisible, grieving Cladis ed., Carol Cosman trans., Oxford University Press, World Classics 2001) Cladis ed., Carol Cosman trans., Oxford University to the reality it embodies and which (1912) (“[W]e must reach beneath the symbol gives it its true meaning. The most barbarous or bizarre rituals and the strangest myths translate some human need, some aspect of life, whether indi- vidual or social.”). sence, this [roadside memorial] is an attempt to declare and maintain a public sence, this [roadside memorial] is an attempt erasure of most highway deaths.”). grief against the seeming anonymity and supra als and the Grieving Process Personal Shrines in Public Places morials—Some Australian Examples See See logically follows the same norms.”). ment and resistance to the apparent random inevitability and anonymity of con- ment and resistance to the apparent random tinuing road trauma.”); Clark & Franzmann, of a fight against the depersonalizing (“Memorialization, may, in fact, be part Robert James Smith, process of modernization and urbanization.”); See Id. Modern culture tends to minimize and deritualize bereavement tends to minimize and deritualize Modern culture For some bereaved, the ritual of creating a roadside memorial the ritual of creating a roadside For some bereaved, 99. Collins & Rhine, 96. 98. Dickinson & Hoffmann, 94. Gibson, 95. Clark, 97. Haney et al., 92. Clark, 93. 101. 100. rituals offer the bereaved comfort and solace and provide structure bereaved comfort and solace and rituals offer the times of crisis and disorder. and order during roadside memorials may be a way to forestall an anonymous, deper- an anonymous, be a way to forestall memorials may roadside roadway. death on the modern sonalized are often in addition to a traditional interment, rather than a substi- to a traditional interment, rather are often in addition tute for one. identify what would otherwise be an invisible death spot. be an invisible would otherwise identify what rials is evidence that this form of remembrance meets an important that this form of remembrance meets rials is evidence human need. tion has “led to insufficient grieving and inadequate resolution of tion has “led to insufficient grieving some families the roadside memorial is the main and immediate locus roadside memorial is the main and some families the the loved one. for remembering work quickly and efficiently to remove evidence of an accident. to remove evidence and efficiently work quickly The road dam- scene and any removed from the are swiftly dead or injured possible. as soon as age is repaired practices, such that these bereavement rituals have now “deteriorated practices, such that these bereavement in meaning.” meets a human need that interment in a cemetery cannot. that interment in a cemetery meets a human need 138 death. mous NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 15 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 73 Side B 08/28/2013 10:13:22 B 08/28/2013 73 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 74 Side A 08/28/2013 10:13:22 R R R 108 109 Haney et al., cf. 111 Mourners can main- 114 The physical objects or 113 Modern practices allow time off practices allow Modern 107 103 note 97, at 705. note 97, at 699. note 97, at 699 (citations omitted). note 97, at 699 (citations omitted); supra supra supra supra note 4, at 168. note 4, at 161 (noting the creation of a spontaneous memorial supra supra Spontaneous memorials erected on the “last alive” Spontaneous memorials erected Social convention does not expect mourning displays expect mourning does not Social convention Scholars criticize that our contemporary bereavement Scholars criticize For many mourners of a “bad death,” the contemporary For many mourners of a “bad death,” 112 104 at 700–02. Modern practices also abandon older traditions like wearing also abandon older traditions like Modern practices note 4, at 161 (“When effective responses to crises become ritualized, their note 4, at 161 (“When effective responses Current bereavement practices are often “one-time events,” “one-time are often practices bereavement Current 106 110 at 704 (describing a death that “challenge[s] core assumptive structures”). at 704 (describing a death that “challenge[s] at 705 (citations omitted). 105 102 See id. Id. Id. Id. “does not replace traditional funerary rites”). Id. supra comfort and empowerment.”). very familiarity brings about a feeling of Id. Id. New, supplementary rituals may be necessary to aid in the griev- New, supplementary rituals may These modern, abbreviated funeral rituals may be effective for funeral rituals may These modern, abbreviated 104. Haney et al., 108. 109. 110. 111. 103. Romanoff & Terenzio, 113. 107. Romanoff & Terenzio, 112. Haney et al., 114. Romanoff & Terenzio, 102. Romanoff & Terenzio, 105. 106. mementos left at a roadside memorial can come to symbolize the de- mementos left at a roadside memorial multiple meanings that represent ceased, and the tokens can contain deceased. the mourner’s relationship with the from work only for certain family members and only for limited peri- and only for limited family members only for certain from work ods of time. place at the roadside are an example of an emerging ritual that helps place at the roadside are an example process. satisfy this need in the grieving beyond these relatives or beyond these prescribed times. beyond these relatives or beyond these Indeed, care may be recommended “[p]sychiatric have observed that scholars these restric- to contain their grieving within for those who fail tions.” practices are “often inauthentic,” “hollow and rigid,” and “devoid of an inauthentic,” “hollow and rigid,” practices are “often healing.” opportunity for genuine unexpected deaths often vio- funeral rituals are insufficient because of the world. late and shatter a mourner’s expectations mourning dress or paying respects to the deceased in the family’s par- paying respects to the deceased mourning dress or lor room. which fail to honor and support a grieving process that extends be- process that extends support a grieving to honor and which fail ritual. one-time funeral yond the ing process. some, especially when a death comes later in life, or after an illness, when a death comes later in life, some, especially to pre-grieve. have had some opportunity because the bereaved However, contemporary grieving rituals are inadequate for a death grieving rituals are inadequate However, contemporary death of a child. or violent or is the that is sudden, unanticipated, have found that the grieving For these types of deaths, researchers with mourners reporting high dis- process is “likely to be prolonged, grieving for many years following tress, disorganization, and active the loss.” 2013]grief.” PUBLIC SPACE ON PRIVATE MEMORIALS 139 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 16 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 74 Side A 08/28/2013 10:13:22 A 08/28/2013 74 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 74 Side B 08/28/2013 10:13:22 R R R 1998 Memori- Scholars and often 122 116 115 available at 117 ., Nov. 6, 1998, at B4, B5 (“For Memory, Memorial, and the DUC According to Poses, leaving According to Poses, E Maintaining this connection Maintaining this 118 There appears to be a growing 120 43 (1998) (“Material objects can generate , April 22, 1998, at 8D, IGHER 123 ELF H EWS S OF . N These offerings help the bereaved main- These offerings help note 97, at 707 (“[F]or many bereaved, there is a note 97, at 707 (“[F]or many bereaved, there HRON 119 MOTIONAL , C OUNTAIN note 2, at 228. E Edward T. Linenthal, M HE See supra , T Mourning Glory When Tragedy Strikes, Grief Hits the Road in Mourning Glory When Tragedy Strikes, Grief OCKY note 29 (thesis at 23) (noting that on public roadways across the , R note 33, at 39. UPTON L supra supra at 235. A similar phenomenon can be seen at other memorial sites like the 121 at 706. EBORAH WLNR 839571. many survivors and family members of victims, the fence [that surrounded the many survivors and family members of victims, Building in Oklahoma City be- blast site around the Alfred P. Murrah Federal came] a place to talk with the dead.”). emotional responses . . . . [T]hey are possessed of a certain agency or capacity to emotional responses . . . . [T]hey are possessed Social interaction with and act within and shape social relations and perceptions. subject/object boundaries such that through material forms tends to destabilize of the body and therefore of material objects can become extensions personhood.”). need to maintain an ongoing psychic connection with the deceased . . . .”). need to maintain an ongoing psychic connection Vietnam War Memorial; Place de l’Alma tunnel in Paris, where Princess Diana Vietnam War Memorial; Place de l’Alma the blast site at the federal building in was fatally injured; and the fence around Oklahoma City. Oklahoma City Bombing Mini-Shrines Id. Romanoff & Terenzio, supra Id. country, “an increasing number of sanctified spaces [are] created in memory of individuals who were neither well-known nor martyrs”). Id. These roadside memorials aid in the grieving process of the loss of aid in the grieving process These roadside memorials These objects, according to grief counselor Peter Poses, are “con- to grief counselor Peter These objects, according 119. 118. Rebecca Jones, 116. Collins & Rhine, 121. 122. Everett, 123. Clark, 120. 115. D 117. als are erected for people going about their daily lives, rather than als are erected for people going people who have done great deeds. who have studied the phenomenon of roadside memorials confirm that memorials confirm of roadside studied the phenomenon who have sports the memorial (toys, are included in personal items “[w]hen suggestion is a strong CDs, etc.) there favorite snacks, equipment, to emo- sense of continuity, to create a builders are seeking that the deceased in their own lives.” tionally sustain the suggest there is an ongoing interaction with the deceased. interaction with is an ongoing suggest there these objects at a memorial “represents an attempt to contain the a memorial “represents an attempt these objects at madness of the situation.” with the deceased during the grieving process often leads to a sense of during the grieving process often with the deceased closure of the and feelings, and eventually control over events process. urge to memorialize ordinary life in public and expressive ways. urge to memorialize ordinary life American studies Professor Er- Roadside memorials are part of what tain a connection with the deceased. tain a connection ordinary individuals, who are neither heroes nor martyrs. ordinary individuals, who are neither tainers for feelings of loss and sadness” and help to make people “feel of loss and sadness” and help to tainers for feelings away from home.” secure, feel at home 140or me- objects these through deceased the with a relationship tain mentos.self, of the become an extension These tokens NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 17 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 74 Side B 08/28/2013 10:13:22 B 08/28/2013 74 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 75 Side A 08/28/2013 10:13:22 R R R R R R R O- : T note 9, note 2, at supra EMORIALS This mania supra M 124 Id. UBLIC P 7 (2008). Professor Doss notes these Dickinson & Hoffmann, Id. ONTEMPORARY C 126 Memorial makers reject the sugges- Memorial makers 130 See also suggesting that rather than “saying suggesting that EMORIALS IFE OF MacKenzie Scott, pastor of First Bap- Scott, pastor MacKenzie M 127 129 L note 4, at 594–95; Collins & Rhine, note 4, at 594–95; 125 note 2, at 234. note 2, at 235. supra EMPORARY MOTIONAL T note 3, at 353. E supra supra Scholars and researchers are still working out why Scholars and researchers are still note 33, at 243 (“[T]he proliferation of roadside shrines through- HE note 2, at 136. note 35, at 157. supra 133 , T note 98, at 12. Pastor Scott also observes, “Perhaps the proliferation supra HEORY OF WARDS A supra OSS supra T Ongoing mourning and remembrance is evidenced by and remembrance is evidenced Ongoing mourning supra D But then it is unclear why this redundancy is necessary— But then it is unclear why this redundancy Perhaps the answer is linked to the way we handle death in Perhaps the answer is linked to 128 RIKA 131 “[c]ontemporary acts, rituals, or performances of memorialization are often exor- “[c]ontemporary acts, rituals, or performances bitant, frenzied, and extreme—or manic.” of crosses along the byways is another instance of the dream of getting off the of crosses along the byways is another instance of civilization.” grid and defying the stifling conventions at 155 (“A roadside marker located ‘outside’ the cemetery may allow the deceased at 155 (“A roadside marker located ‘outside’ to continue to exist in the world of the living.”). Id. out the United States may have more to do with the often contested behaviors related to death, remembrance, travel, and protection that link individuals to communities than with any particular religious practice.”). 232. 132 Geography professors Charles Collins and Charles Rhine have Geography professors Charles Collins When interviewed, memorial makers often have a hard time fully memorial makers often have a When interviewed, 131. & Rhine, Collins 128. Collins & Rhine, 130. Reid & Reid, 132. 133. Kennerly, 124. E 125. Bednar, 126. Scott, 127. Clark & Franzmann, 129. Gibson, the memorial service and burial in a cemetery are intended to do just the memorial service and burial in is evidence of a culture that is anxious about its relationship with about its relationship that is anxious of a culture is evidence and memory. time, history, tion that a memorial is a means of gaining closure, and instead, many is a means of gaining closure, tion that a memorial with the de- is a way of maintaining continuity indicate that it ceased. good-bye” or “letting go,” the bereaved continue to relate to the de- go,” the bereaved continue good-bye” or “letting ceased through these memorials. tist Church in Lewisburg, Pennsylvania, echoes this view: “A tradi- echoes this view: Pennsylvania, in Lewisburg, tist Church collective grave and balance of individual with its tional cemetery, that has become seem too impersonal in a world location, may simply freedoms.” anxious about personal maintenance of the memorial site.maintenance of the carefully and Some memorials are for years, lovingly maintained that. modern society. studied this phenomenon and confirm, “More than anything else, the studied this phenomenon and confirm, is to keep the deceased’s memory avowed purpose of the memorial alive.” articulating what need animates their desire to make memorials or need animates their desire to make articulating what them. their purpose in making 2013] with obsession “contemporary or the mania,” “memorial calls ika Doss PUBLIC SPACE ON PRIVATE MEMORIALS to ex- excessive desire and an urgent, memory and history issues of contexts.” in visibly public claim, those issues press, or 141 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 18 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 75 Side A 08/28/2013 10:13:22 A 08/28/2013 75 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 75 Side B 08/28/2013 10:13:22 R R R R R R R 134 Scholars 567 (2006) 137 ELIGION Waning reliance Waning R . 122 (1998) (confirming 136 EV . R TUDY OF OC . S Generations of Decline: Religious . S CI M S FOR note 9, at 155 (“Today’s commemorative Perhaps in response to this dis- Perhaps in response , 63 A These memorials have a “pagan, These memorials note 33, at 251 (“Some shrine builders com- note 33, at 251 (“Some shrine builders 138 140 supra , 45 J. 135 Overreporting Church Attendance in America: Evi- Overreporting Church Attendance in America: supra note 4, at 593 (citation omitted). note 4, at 594–95. note 4, at 582. note 4, at 583 (“Those who construct memorials now note 4, at 583 (“Those who construct memorials note 4, at 583 (“The modern construction of roadside note 4, at 583 (“The modern construction supra supra supra supra supra Roadside memorials reflect this trend and attest to the reflect this trend and attest Roadside memorials 139 at 583, 595. at 583; Alasdair Crockett & David Voas, (“[M]emorial makers are prepared to assume their own authority to build, (“[M]emorial makers are prepared to assume Individually, the roadside memorial communicates a roadside memorial communicates Individually, the Roadside memorials are a complex and multivocal phenome- are a complex and multivocal Roadside memorials (examining continuous decline of religion throughout the 20th century in Brit- (examining continuous decline of religion ain); C. Kirk Hadaway et al., decline in weekly attendance at religious services in the United States). decline in weekly attendance at religious Change in 20th-Century Britain maintain and defend roadside memorials and . . . this authority taking can explic- maintain and defend roadside memorials and and bypass the church as the prime itly challenge the role of the government social purveyors and mediators of grief rituals.”). dence that Demands the Same Verdict memorials may be a specific expression, perhaps, of a bigger phenomenon, a cur- memorials may be a specific expression, perhaps, forms that once sufficed for the rent groundswell of disregarding institutional crisis moments of life. More than ever, people are beginning to take religion and government or established religious meaning-making out of the hands of the [sic].”); Dickinson & Hoffmann, sites represent a shift in the way that western societies regard death, funerals, and mourning rituals; death-negating practices seem to gradually give way to greater expressiveness in public mourning.”). Id. Id. rituals of conventional religion and see often speak of not finding meaning in the even in outright opposition to conven- their memorials either as an alternative or tional religion.”); Kennerly, by clerics who did not have a personal plain that church services were conducted noting that the liturgy and ritual relationship with the deceased or the family, sudden and traumatic loss.”). were devoid of meaning in the face of their Id. 141 In an era of declining religiosity, these memorials may offer mean- may offer these memorials of declining religiosity, In an era 138. Clark & Franzmann, 136. 137. 139. Clark & Franzmann, 141. Clark & Franzmann, 140. Clark & Franzmann, 134. Clark & Franzmann, 135. have noted that memorial makers often report dissatisfaction with memorial makers often report dissatisfaction have noted that practices. conventional religious on established, church-based rituals is evidenced by a worldwide de- rituals is evidenced on established, church-based church membership and attendance. cline in mainstream satisfaction, there is an emerging rise in the individual’s own spiritual is an emerging rise in the individual’s satisfaction, there authority. do-it-yourself element” that some contemporary mourners find satisfy- that some contemporary mourners do-it-yourself element” ing. growth of personalized rituals. growth of personalized non. of remembrance and warning.multilayered message the Collectively, a critique against modernity—modernphenomenon communicates death practices, and modern transportation, modern culture, modern religion. ing and solace in very personal and unique ways. and unique in very personal ing and solace 142 memorials. roadside these to build need feel the bereaved some their own to assert shown a willingness mourners have Nevertheless, of public irrespective and maintain them, to build moral authority legal authorization. opinion or NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 19 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 75 Side B 08/28/2013 10:13:22 B 08/28/2013 75 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 76 Side A 08/28/2013 10:13:22 R R R R R R R at Id. And (July 12, 148 note 49, at IMES supra , N.Y. T note 49, at 666. Tay supra and in other countries around and in other countries even if the public does not fully even if the public Balancing the interests of road Balancing the interests 144 note 9, at 156 (“[T]he placement of crosses 147 142 supra note 2, at 241 (“With a few vocal exceptions, the public note 2, at 241 (“With a few vocal exceptions, note 2, at 222. note 2, at 232 (“[T]he attitude of most in the general pub- The public is generally deferential to roadside The public is generally ROADSIDE MEMORIALS ROADSIDE Should Roadside Memorials Be Banned? 146 supra supra supra note 33, at 38. Roadside memorials have been a source of controversy Roadside memorials , Dickinson & Hoffmann, 143 supra 145 The single most popular option is the strict no roadside memorial policy. The single most popular option is the strict a policy that does not allow Therefore, it is tempting to conclude that this view is preferred roadside memorials should be adopted. However, to this group, 7.9% of the by only 30.5% of the respondents. In addition disallow option. Together, respondents also selected the unofficially of the respondents.these two choices were preferred by 38.4% On the chose officially allow, allow other hand, the share of respondents who allow amounted to with standardised [sic] memorials and unofficially 51.0% of all the respondents. Therefore, it would appear that a relative allowing roadside memorials. bigger share of the public was in support of to allow only under spe- The remaining 10.6% of the respondents opted basis. cial circumstances or allow on a case-by-case III. POLICY ON AND PUBLIC PUBLIC OPINION at 226. if “[E]nforcement efforts become a public relations disaster, especially 241. 2009, PM), 7:00 http://roomfordebate.blogs.nytimes.com/2009/07/12/should-road- side-memorials-be-banned/. memorial builders choose to take their plight to the public via the media.” memorial builders choose to take their plight Id. and friends to act in this fashion, or seems either to respect the right of families to be willing to ignore the issue.”). lic is respect, though it probably stops short of sharing a sense that these sites are sacred in any conventional definition of that attribution.”); Tay, 664 (surveying college-aged drivers and finding most drivers support allowing continues: Id. See, e.g. a number of American states.”); Rob- on public property has been controversial in ert Tiernan et al., “[o]verall, public support for roadside memorials is divided but leaning more to- “[o]verall, public support for roadside memorials wards allowing than disallowing them.” Tay, Public opinion is mixed about whether roadside memorials should mixed about whether roadside memorials Public opinion is The proliferation of roadside memorials poses a problem for public a problem for memorials poses of roadside The proliferation 144. 145. Clark, 148. Collins & Rhine, 147. Collins & Rhine, 146. findings and concluded that Professor Richard Tay explained his mixed survey 142. Collins & Rhine, 143. the world. share the memorial maker’s sense of sacredness of the site. maker’s sense of sacredness share the memorial safety and maintenance, visual blight, and Establishment Clause con- visual blight, and Establishment safety and maintenance, public relations needs of the grieving is “a cerns with the minefield.” memorials that have been erected, memorials that have and debate in both the United States and debate in both be permitted or not. officials, who are in an ongoing quandary concerning how to balance concerning how quandary who are in an ongoing officials, with the the aesthetic interests of the community traffic safety and of the bereaved. grieving process 2013] PUBLIC SPACE ON PRIVATE MEMORIALS A. on Roadside Memorials Opinion Public 143 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 20 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 76 Side A 08/28/2013 10:13:22 A 08/28/2013 76 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 76 Side B 08/28/2013 10:13:22 R R R R 149 magazine, asks: “If an old magazine, asks: Some memorials are clearly visible while others are more personal and while others are more personal 154 155 , Winter 2001/2002, at 59. 153 Skeptical Inquirer Religion on the Roadside: Traffic Fatality Markers Generate Religion on the Roadside: Traffic Fatality NQUIRY I note 33, at 245. note 35, at 156 (explaining that for the more visible memorials, REE note 33, at 38 (“[T]he public nature of these memorials allows a , F note 49, at 666 (“With respect to time limit, no limit was chosen by the note 49, at 666 (“With respect to time limit, supra supra Radford then observes, “Thousands of people die each day Radford then observes, “Thousands supra 150 supra 152 As an illustration of such criticism, Benjamin Radford, man- of such criticism, Benjamin Radford, As an illustration (“In terms of self-reported effects on actual driving behaviour [sic], 46.8% re- (“In terms of self-reported effects on actual ported that the presence of roadside memorials was likely to distract them while ported that the presence of roadside memorials roadside memorials made them think they were driving; 39.1% reported that that roadside memorials made them about their driving, and 32.1% reported drive more cautiously.”). Controversy Id. wider range of people to participate in the grieving process.”). “[w]hile it is generated out of private grief and memory, its style is nevertheless performative—it is there to be seen”). roadside memorials but that they also preferred standardized or official roadside memorials but that they also memorials). followed closely by no time at all largest percentage (26.0%) of the respondents, (24.9%). preferred to have some time limit im- Between these extremes, 49.1% (19.2%) being most popular limit, posed on roadside memorials, with 1 month followed by 1 week (11.5%).”). Id. 151 Memorials on public spaces are situated to draw in strangers to Memorials on public spaces are While roadside memorials can be deeply meaningful and healing can be deeply meaningful While roadside memorials 153. 151. Kennerly, 149. Tay, 150. 155. Gibson, 152. Benjamin Radford, 154. Clark, woman dies while shopping in a supermarket, should her family sue to shopping in a supermarket, should woman dies while next to the soups?erect a memorial to her in aisle 12 Or in the park- ing lot?” and are intended to be seen, in the United States. Each one of those people had families, friends, hopes, and dreams. Yet we do not erect public memorials for them. Is significant (or worthy of memorial) a death from a car crash any more than any other death?” aging editor of the aging editor of share in the grieving process. for the mourners, some observers object to the sanctification of public some observers object to the sanctification for the mourners, roadsides. memo- suggest that the roadside Those who voice criticism the makers are or “personal propaganda,” rials are “disingenuous” form of litter- or the memorial is a “pious “faking it for attention,” ing.” 144 about polled when memorials, extant to deferential generally while When is ambivalent. public’s response memorials, the prospective be al- memorial should long any roadside the abstract how asked in those pre- divided between public opinion is remain erected, lowed to of time unlimited amount to remain for an allow a memorial ferring to at all. to be erected allow the memorials preferring not to and those NEBRASKA LAW REVIEW memorials roadside concerning whether public opinion Additionally, those who find to drivers is also divided between are a distraction to drive more and those who find them a reminder them distracting carefully. [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 21 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 76 Side B 08/28/2013 10:13:22 B 08/28/2013 76 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 77 Side A 08/28/2013 10:13:22 R R R R R , HRISTI- availa- , C 2011 WLNR 20751801. , Feb. 25, 2012, at 1A, Memorial-making can Memorial-making According to Doug Tin- According to Doug 161 159 ENTINEL S available at UN For some, memorials are an memorials For some, , S 158 note 9, at 156 (citations omitted). Yet, sometimes strangers do not wel- strangers Yet, sometimes 157 supra Some markers deteriorate and disappear, Some markers deteriorate and Tattered Memorials to Dead Taking Toll in Neighborhoods note 3, at 353 (“Some prefer that others’ mourning behavior note 3, at 353 (“Some prefer that others’ mourning 164 note 4, at 587 (“The non-grieving can see memorials as an note 4, at 587 (“The non-grieving can see Roadside Memorials Spark Religious Freedom Dispute Roadside Memorials Spark Religious Freedom J., Oct. 9, 2011, at A1, note 89, at 114. note 2, at 133, 140 (noting “their location on the roadside presup- note 2, at 133, 140 (noting “their location note 2, at 134 (“As individual shrine builders heal through repeat- note 2, at 134 (“As individual shrine builders supra supra , Apr. 3, 2000, at 20. 162 ANITY EACON supra supra supra ODAY Participating in a stranger’s roadside memorial can pro- can memorial roadside in a stranger’s Participating B 2012 WLNR 4080769. T Echoing this sentiment, a resident near a roadside memorial a resident near a roadside Echoing this sentiment, Journalist Stephanie Warsmith observed, “The teddy bears Journalist Stephanie Warsmith 156 at 157 (“In contrast, other memorials are first and foremost messages of love at 157 (“In contrast, other memorials are KRON 160 163 A ble at to the dead. They communicate grief in a more intimate way and their public a publicly visible setting.”). face is incidental to the death occurring in Memorials Create Dilemma for Cities embodied in the shrine site, they ing their encounter with the affective memory bring the trauma to the rest of us, giving us an intrusive traumatic memory for us to work through in a different way.”). Id. not intrude on them as they travel the roadway.”). them in roadspace . . . .”); Clark & poses that people in automobiles will see Franzmann, intrusion upon their space.”). In addition to viewing a memorial as an unwanted reminder of In addition to viewing a memorial 158. Reid & Reid, 161. 162. Bednar, 157. Monger, 159. Bednar, 160. Karen Schmidt, 163. Dickinson & Hoffmann, 164. Stephanie Warsmith, 156. be productive and healing for the maker, but the memorial can also healing for the maker, but the be productive and to other drivers who are forced to bring unwanted, “vicarious trauma” experience it. dall, a maintenance engineer for the Oregon Department of Transpor- engineer for the Oregon Department dall, a maintenance calls regarding department “regularly receives tation (DOT), his roadside memorials. because they callers want displays removed Most in a traffic acci- reminders of someone’s death don’t want continual dent.” unwelcome testament to the fragile and fleeting nature of life. nature of the fragile and fleeting testament to unwelcome These of driving. inherent dangers of the are powerful reminders memorials driving down the reminded of these dangers while And viewers are someone else died. same roadway where come being drawn into the grieving process because it brings un- because it the grieving process drawn into come being death. reminders of wanted whereas others are devotedly maintained for years and are redeco- whereas others are devotedly maintained mote a sense of group solidarity, “a symbolic coming together of the coming together “a symbolic of group solidarity, mote a sense in mourning.” community turn soggy and gray. Flowers wilt. tributes become il- Handwritten legible. Rather than serving as a tribute to someone who died, they become an eyesore.” in Florida wrote an e-mail to the city mayor: “The erection of memori- an e-mail to the city mayor: “The in Florida wrote our personal pain only serves to regularly reinforce als near our home into the neighborhood.” each time we turn tragic loss, some individuals see a memorial as a “macabre eye- tragic loss, some individuals see sore.” 2013]private. PUBLIC SPACE ON PRIVATE MEMORIALS 145 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 22 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 77 Side A 08/28/2013 10:13:22 A 08/28/2013 77 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 77 Side B 08/28/2013 10:13:22 R R R R R R R R 173 Me- 169 Roadside 2009 WLNR And then 167 (KING 5 News 166 note 29 (thesis at 89); available at Roadside Tributes Blamed supra But once the mourning pro- mourning once the But 165 http://www.king5.com/news/local/Friends- Daniella Miletic, Sociology professors George Dickin- Sociology professors cf. Roadside memorials can also pose a Roadside memorials 171 note 9, at 161. note 4, at 585; Everett, 170 And in Texas, a young woman was struck And in Texas, a young woman was 168 available at An Arizona DOT spokesperson reported that An Arizona DOT note 2, at 235. note 2, at 238. note 2, at 236 (“Plainly, any structure placed on the mar- note 2, at 236 (“Plainly, any structure placed 174 supra supra (Australia), July 11, 2009, at 3, note 3, at 350. 172 GE note 35, at 158. note 66, at 52; supra supra supra , A note 29 (thesis at 57) (“The [roadside memorial] assemblages have note 29 (thesis at 57) (“The [roadside memorial] supra note 95, at 105 (“Still, one wonders if there will be a gradual decline note 95, at 105 (“Still, one wonders if there supra supra Friends Upset WSDOT Removed Roadside Memorial Friends Upset WSDOT Removed Roadside supra , supra Gibson, 27592896 (“Police believe the two-week-old shrine made for the teenagers killed at the intersection . . . distracted 21-year-old Melissa I’Anson, who died when her car was hit by a B-double truck . . . [as she] slowed down to look at the messages as she turned right at the intersection.”). Broadcast Apr. 2, 2012), upset-WSDOT-removed-roadside-memorial-145784275.html) (“WSDOT said it upset-WSDOT-removed-roadside-memorial-145784275.html) were slowing down to look at it [the was becoming a hazard because other drivers memorial cross] along Interstate 405.”). of the practice at individual sites after several years, once the memorialisation of the practice at individual sites after several [sic] has served its purpose—in the same way that the number of flowers on a grave decreases over the years.”). for Fatal Crash Reid & Reid, roadway maintenance difficult.”). become so numerous as to render routine This is especially true of gins of a road hinder or complicate its maintenance. or metal crosses, stones, bits of decora- mowing operations along highways. Wood bears interfere with normal proce- tive fencing, even votive candles and teddy in fields, memorials obstruct normal dures. Likewise, on private lands, especially crop cultivation and harvesting.”). See, e.g. See More than just an issue of aesthetics, roadside memorials raise memorials of aesthetics, roadside just an issue More than 172. Dickinson & Hoffman, 168. Clark & Franzmann, 170. Collins & Rhine, 171. 173. Collins & Rhine, 174. Chris Ross, 169. Everett, 165. Collins & Rhine, 166. 167. Smith, mentos left at roadside memorials can become hazardous projectiles memorials can become hazardous mentos left at roadside is mowed. when tall grass it is unclear who, if anyone, will maintain the memorial. will maintain who, if anyone, it is unclear into can deteriorate disuse and disrepair that fall into memorials clog road drains. blight or cess no longer needs the memorial, it is often neglected. memorial, it is often needs the cess no longer son and Heath Hoffmann, who surveyed state DOT officials, found who surveyed state DOT son and Heath Hoffmann, considered a safety said roadside memorials were that 70% of officials hazard in their state. safety hazard to other drivers. safety hazard to of the 4,000 rear-end collisions that occurred in a year, “a troubling collisions that occurred in a of the 4,000 rear-end memorials.” drivers who stopped to view roadside number involved concerns about road maintenance and road safety.concerns about road memorials These operations. road maintenance and mowing can interfere with In Wyoming, the DOT considers roadside memorials dangerous and DOT considers roadside memorials In Wyoming, the to a driver where the death of a child was attributed cited an accident for two young pedestrians killed who was distracted by a memorial earlier at the same site. 146 or holidays. dates on auspicious rated NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 23 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 77 Side B 08/28/2013 10:13:22 B 08/28/2013 77 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 78 Side A 08/28/2013 10:13:22 R R R 178 However, 176 note 29 (thesis at supra 671, 671–77 (2006). 671, 671–77 Street-level advertise- note 176 (thesis at 92) (“The Everett, 181 supra 180 REVENTION 175 See also & P NALYSIS Professor Tay, a traffic safety expert, also Professor Tay, a A Attraction and Distraction of Attention with Roadside Ad- 179 note 3, at 352–53. CCIDENT note 49, at 484–86 (finding roadside memorials did not have any (finding roadside memorials did not have note 49, at 484–86 at 93. supra , 38 A note 49, at 669 (“The number of red light violations in a 6-week period note 49, at 669 (“The number of red light violations Id. supra And one study found that while drivers were less likely to that while drivers were less And one study found supra Anthony Edward Churchill, Roadside Memorials and Traffic Safety 43 (Au- Anthony Edward Churchill, Roadside Memorials 177 effects of memorials on traffic behaviour [sic] in both the study of short and long effects of memorials on traffic behaviour [sic] insignificant.”).term effects have been shown to be statistically Moreover, per- an effective cautionary or salu- sonal roadside memorials are unlikely to provide memorials do not affect driver tary effect on drivers: “The finding that roadside of conventional roadside memorials speed or following distance suggests that use distance issues is unlikely to be as a safety countermeasure for speed or following effective.” gust 2007) (unpublished M.S. thesis, University of Calgary) (on file with author) gust 2007) (unpublished M.S. thesis, University [of drivers] and the perception (“Municipalities’ chief concerns are distraction that roadside memorials are safety hazards.”). vertisements at selected intersections after the installation of the roadside memorials was at selected intersections after the installation the violation rates in the 6-week pe- found to be significantly lower (16.7%) than riod before the installation of the roadside memorials.”). Id. Id. 57) (“Additionally, TxDOT [Texas Department of Transportation] officials fear 57) (“Additionally, TxDOT [Texas Department they are dangerously distracting to drivers.”). See too closely, however, no positive ef- significant effect on speeding and following fects on safety were found either); Churchill, While scientific data on the effects of roadside memorials is still on the effects of roadside memorials While scientific data In light of experiences like these, some state officials have concerns these, some state experiences like In light of 178. Tay, 177. Tay, et al. 179. 176. 180. 181. David Crundall et al., 175. Reid & Reid, the traffic safety researchers who have examined the hazards posed the hazards who have examined safety researchers the traffic be generally safety-neutral. found them to memorials have by these from roadside me- no statistically significant effect Two studies report morials. ments hold drivers’ attention longer because of their location within ments hold drivers’ attention longer where drivers are attending to the “cluttered areas of the visual scene” cautions that leaving roadside memorials completely unregulated roadside memorials completely cautions that leaving forms of restric- concerns because “[w]ithout some could raise safety a potential hazard memorials erected may become tions in place, some and materials used.” due to their size run through red lights at intersections with roadside memorials, lights at intersections with roadside run through red emerging, there is a body of research on the effects of roadside adver- a body of research on the effects emerging, there is tisements. advertisements, such Researchers have found street-level pose a greater hazard than raised- as those on the side of a bus stop, billboard. level advertisements, such as a about the safety hazards posed by roadside memorials. posed by roadside safety hazards about the 2013] of her memorial the roadside visiting she was a car while killed by and PUBLIC SPACE ON PRIVATE MEMORIALS funeral. the cousin’s cousin following 147 raise “other safety that such memorials could the researcher warned cyclists and potential hazards to pedestrians, concerns, including maintenance workers.” \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 24 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 78 Side A 08/28/2013 10:13:22 A 08/28/2013 78 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 78 Side B 08/28/2013 10:13:22 , 6 ERCEP- Addi- P Id. 183 CQUISITION IN A Researchers have found that have found Researchers Researchers have also found Researchers have NFORMATION : I 182 186 And with an aging population of And with an aging 194, 205 (2001) (“Older adults were slower IND 187 M ACTORS 267, 267–73 (1998) (suggesting longer latencies for 267, 267–73 F YE TO 188 E 119, 119–27 (Rudolf Groner et al., eds., 1990); Cynthia 119, 119–27 Conspicuity in Realistic Scenes: An Eye-Movement Mea- Conspicuity in Realistic Scenes: An Eye-Movement UMAN ROM F Visual Search for Traffic Signs: The Effects of Clutter, Lumi- Visual Search for Traffic Signs: The Effects 403, 403–15 (1991). 403, 403–15 RGONOMICS EADING , 43 H Active Function of Eye Movement and Useful Field of View, in a Active Function of Eye Movement and Useful note 181, at 676 (“The greater the distance between the fixation note 181, at 676 (“The greater the distance E GING Visual/Cognitive Correlates of Vehicle Accidents in Older Drivers Visual/Cognitive Correlates of Vehicle Accidents , & R supra PPLIED TION . & A As a corollary, drivers may be able to process raised-level As a corollary, drivers EARCH , S Street-level advertisements may also hold drivers’ attention may also hold advertisements Street-level , 20 A at 676. 185 at 205 (“This suggests that in time-limited situations that involve visually at 205 (“This suggests that in time-limited SYCHOL 184 P and less accurate and required more fixations to acquire a traffic sign.”). and less accurate and required more fixations high-clutter scenes resulted from a greater number of fixations needed to locate a high-clutter scenes resulted from a greater target). Owsley et al., on an advertisement and the road ahead, the greater the impulse to return the on an advertisement and the road ahead, eyes to the forward position as soon as possible. As RSAs [raised-level advertise- fixation position than SLAs [street- ments] are further away from the optimum drivers will tend to fixate RSAs for a level advertisements], it is natural that shorter amount of time.”). complex scenes (e.g., a busy intersection), older adults are more likely than complex scenes (e.g., a busy intersection), younger adults to misidentify a sign or miss a sign altogether. The driving popu- lation is aging rapidly.”). In light of this scholarship, traffic safety researchers suggest that “roadway engineers should consider reducing the number of compet- ing signs (e.g., advertisements), avoiding redundant signs, and making traffic signs that are central to the safety of the driver more conspicuous.” sure Realistic Setting in nance, and Aging Id. Id. Id. 188. 184. Toshiaki Miura, 185. Crundall, 186. 183. Theo Boersema et al., 187. Geoffrey Ho et al., 182. tionally, clutter narrows the observer’s useful field of view and in- field of view the observer’s useful clutter narrows tionally, in process the information needed to the amount of time creases view. when drivers have more visual clutter to filter through, it takes them through, it clutter to filter have more visual when drivers traffic landscape. sense of the process and make longer to that older drivers process cluttered traffic scenes more slowly and less process cluttered traffic scenes more that older drivers drivers. accurately than younger drivers, state governments have legitimate concerns about driver dis- have legitimate concerns drivers, state governments hazards. traction and road advertisements with shorter glances than street-level advertisements shorter glances than street-level advertisements with when a billboard is visual clutter to contend with because there is less sky or buildings. viewed against the longer than raised-level advertisements because drivers are less com- advertisements because drivers longer than raised-level for prolonged their eyes from the roadway fortable averting glances. 148 cars. passing and street objects other NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 25 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 78 Side B 08/28/2013 10:13:22 B 08/28/2013 78 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 79 Side A 08/28/2013 10:13:22 R , OR 189 190 F 2010 , Aug. SHLAND TATE OF note 161; , A , S ERALD available at 3-22 to 3-23 H UIDELINES available at ., G AILY ANUAL ACILITIES Roadside Memorial D Hampstead Proposes M expressly permit . F 2004 WLNR 23055889 http://www.dot.alaska. RANSP UB 194 ORRIS T 2011 WLNR 7458502 (“Na- THERS , Jan. 16, 2012, , M . & P TOF O ’ Signs of Remembrance EP Cara Hogan, available at available at RANSP . D AZETTE ., Dec. 27, 2010, , AY BY A 2011 WLNR 17417056. T See G W RIB http://www.virginiadot.org/business/re- available at and Texas Policies vary widely with some Policies vary widely -T TOF ’ 193 191 EP EMORIALS AGLE IGHT OF Lasting Memories M ANESVILLE R , E available at note 9, at 158 (identifying that 23 states, or 46%, note 9, at 158 (identifying that 23 states, available at , J SE OF , Apr. 15, 2011, Virginia, OADSIDE supra Memorials Create Dilemma for Cities, supra Memorials Create Dilemma for Cities, supra 2011 WLNR 16829809; Neil Johnson, R ., U 192 (2006), IMES § 30-151-550 (2012); V http://onlinemanuals.txdot.gov/txdotmanuals/use/use.pdf. T note 164, at A1; Sam Wheeler, Displays Help With Grief; Some Call Them Depressing, Unsafe Displays Help With Grief; Some Call Them East Contra Costa Agency to Crack Down on Roadside Memori- East Contra Costa Agency to Crack Down ODE RANSP , Aug. 21, 2011, OSTA T . C . § 19.25.260 (2010); D RIMER FOR EMORIALS C The Texas DOT “Use of Right of Way by Others Man- “Use of Right of Way by Others The Texas DOT supra available at TOF M TAT ’ DMIN (Weschester, N.Y.), June 2, 2004, A1, IDINGS available at S , A P 195 EP T . A ONTRA A EWS . D , C AILY OADSIDE LASKA LASKA EX J. N WLNR 25455635; Jo Ann Hustis, 25, 2011, Warsmith, (2005), gov/stwddes/dcsrow/assets/pdf/roadsidememorials.pdf. (noting “regulations nationwide are a hodgepodge of do’s and don’ts”). (noting “regulations nationwide are a hodgepodge tionwide, states and cities are grappling with roadside memorials as they become tionwide, states and cities are grappling with more common. Though some local agencies have placed restrictions on memori- als, it’s unusual to ban them outright.”). sources/NOVA_FairfaxPermits/FairfaxPermits_RoadsideMemorialGuidelines. pdf. for Man Sparks Controversy Roadside Memorial Ordinance als R Id. 2012 WLNR 1024690; D have adopted a policy). A States like Alaska, State and local governments across the country have adopted a country have adopted across the local governments State and 193.V 24 190. Hannah Dreier, 191. Dickinson & Hoffmann, 194. T 195. 192. A 189. Michael Risinit, private memorials.may be com- fatalities in Texas Traffic-related inches high and no marker that is “no more than 30 memorated by a “does not distract and is located in a place that wider than 18 inches” motorists.” states expressly permitting private markers, some allowing only permitting private markers, some states expressly and some ex- some having no express policy, state-sponsored markers, all private roadside markers—yetpressly prohibiting not enforc- often ing the prohibition. ual” includes a sketch that illustrates the size and construction limita- ual” includes a sketch that illustrates sample marker is a 30” x 18” Latin tions for right of way markers; the cross. patchwork of policies and regulations for roadside memorials. regulations of policies and patchwork 2013]B. PUBLIC SPACE ON PRIVATE MEMORIALS Roadside Memorials Public Policies on of Patchwork and the of the bereaved balance the needs struggle to Policymakers 149 the community.needs of appro- considering governments are Many needs. to balance these displays as a way on roadside priate limits regarding the states have adopted some policy Nearly half of the memorials. placement of roadside \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 26 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 79 Side A 08/28/2013 10:13:22 A 08/28/2013 79 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 79 Side B 08/28/2013 10:13:22 UN do S 201 198 EACH available at DOT: Make- B By offering , June 1, 2010, http://www.scdot. YRTLE http://www.trans- http://www.trans- 199 AZETTE , M G 196 However, observers available at available at available at 200 Craig Schneider, , , , and South Carolina, IGN HARLESTON S ., Feb. 10, 2011, at A1, 197 , C see also EMORIALS EMORIALS ONST M M EMORIAL 2010 WLNR 15813529 (“South Carolina high- J.-C M OADSIDE OADSIDE TLANTA OADSIDE ., R ., R , A ., R available at 2010 WLNR 11413548 (“The state’s [West Virginia] idea of 2010 WLNR 11413548 (“The state’s [West RANSP RANSP T T RANSP Right of Way by Others Manual.” Right of Roadside Signs May Be Tough Sell in S.C. T TOF TOF ’ ’ EP EP TOF ’ available at EP . D . D , Aug. 9, 2010, A A at 3-24. EWS at 9A, org/getting/community_roadside_memorials.aspx. portation.wv.gov/highways/traffic/roadsidememorials/Pages/default.aspx. portation.wv.gov/HIGHWAYS/TRAFFIC/ROADSIDEMEMORIALS/Pages/de- fault.aspx. way officials hope the availability of new, state-provided signs at places where way officials hope the availability of new, on the number of homemade memori- people have died on roadways will cut down als along the sides of roads.”). offering official roadside memorial signs to families of those killed in traffic acci- dents isn’t catching on with residents.”); shift Tributes Must Go Sales Slow for State’s Roadside Memorials 2011 WLNR 2626628 (reporting that for one bereaved mother in Georgia, a white state-issued sign was inadequate because it “would not be personal enough”). Id. N Other states, such as West Virginia Other states, such Figure 1. “Sketch of Typical Marker” from the Texas DOT “Use of “Use Texas DOT from the Typical Marker” of 1. “Sketch Figure 199. W. V 198. S.C. D 200. Steve Jones, 201. 197.V W. 196. not expressly prohibit private memorials but do offer a state-approved private memorials but do offer not expressly prohibit sign.a sign with one of three In West Virginia a loved one can select of the deceased: (1) “Please Drive messages along with the name Safely”—available fatalities; (2) “Please for all victims of highway Buckle Up”—available for highway fatalities where the victim was not Drink and Drive”—availablewearing a seat belt; and (3) “Don’t for alcohol or drugs. victims of a vehicular crash involving official signs, state officials hope the bereaved will opt for the state- official signs, state officials hope their own. issued sign rather than making note that it does not appear that the state-sponsored memorial pro- note that it does not appear that a privately made memorial. gram is an adequate substitute for 150 NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 27 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 79 Side B 08/28/2013 10:13:22 B 08/28/2013 79 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 80 Side A 08/28/2013 10:13:22 . , . . E- NN 205 206 IGH TAT M A avail- ARKER http:// http:// . S ARKERS M Wyoming ODE . & H EV M C TS OADSIDE http://www. . 125/15 and . R and New R . S , R TAH TAT 209 AL EMORIAL http://www.scdot. available at C . S EMORIAL available at and Florida and M , RANCH See OMP ., M 204 B http://www.coloradodot. available at . C , AFETY (2003), LL S ROGRAM RANSP , Oct. 26, 2008, at A21, , Oct. 26, 2008, at A21, available at And by participating in And by participating P T , California, be installed on State highways. 605 I IMES ROGRAM ROGRAM IGN IGN 214 Georgia, 208 TOF NGINEERING IGHWAY ’ P P available at only S S See E EP H 203 IGN . D , N.Y. T S But accident victims who were But accident victims A G RAFFIC EMORIAL (2009), EMORIAL EMORIAL 211 M M see M & T EMORIAL and Illinois. Colorado, RITERIA . R. 734-026-0010 to -0045 (2013); U ELCOME TO THE ICTIMS C AFETY 213 OADSIDE 202 OADSIDE DMIN http://www.dot.state.fl.us/statemaintenanceoffice/memo- ., S ., V § 25.953(e) (2013) (determining eligibility for Memorial ., W ., R New Hampshire, . § DWI Victim Fatality 236:48-a (Supp. 2012) (outlining ., DUI M ., R . A R NN ODE 207 ROGRAM RANSP RANSP RANSP RANSP P . A RANSP RANSP . C T § 32-6-50 (2010); T T T T T http://www.dot.state.ga.us/doingbusiness/permits/Pages/Memorial TAT NN R. §18.20.7.8 (LexisNexis 2012) (“The standard sign features the R. §18.20.7.8 (LexisNexis 2012) (“The standard available at TOF DMIN ’ TOF MORIAL TOF ’ TOF . S A ’ ’ TOF IGNAGE , TOF ’ http://www.nytimes.com/2008/10/26/world/americas/26iht-wyoming.4. ’ EP ODE EP EV . A EP S EP EP EP offer state signs only for victims of certain types of traffic victims of certain signs only for offer state ODE § 2012) (offering a “Please Don’t Drink and 101.10 (West 2005 & Supp. .D South Carolina, EX . D . D . D . D . C 210 YO A 212 AL ODE OLO LA ROGRAM LL C § 366.930 (2011); O § 72-7-110 (Supp. 2012). www.dot.ca.gov/hq/traffops/signtech/signdel/victims.htm. www.dot.state.wy.us/files/content/sites/wydot/files/shared/Public%20Affairs/ Dan Frosch, Roadside%20Memorial%20Program%20Brochure.pdf; dot.il.gov/oper/duimemorialprogram.html. 125/20 (West 2007 & Supp. 2012) (offering a “Please Don’t Drink and Drive” 125/20 (West 2007 & Supp. 2012) (offering sign). org/getting/community_roadside_memorials.aspx. info/library/forms/cdot1314.pdf (“Signs may info/library/forms/cdot1314.pdf (“Signs may Signs installed on State highways within a city or town require local government Signs installed on State highways within a approval.”). rial%20markers.shtm. Sign Program). Sign Program). Markers.aspx. words ‘Please Don’t Drink and Drive’ ‘In memory of (victim’s name(s)).’”).words ‘Please Don’t Drink and Drive’ ‘In to commemorate police officers killed in the line of duty.to commemorate police officers killed in O 17256888.html (“Wyoming started enforcing a ban on roadside memorials more started enforcing a ban on roadside 17256888.html (“Wyoming offi- they began appearing so often that transportation than five years ago, after drivers in a dangerous way.”). cials felt they could distract and obstruct Drive” sign followed by: “In Memory of (deceased victim’s name)” along state Drive” sign followed by: “In Memory of highways). Finds a Place for Crash-Site Memorials Finds a Place for Crash-Site able at P Id. available at States like Wyoming, States 212. 43 T 208. N.H. R 204. G 206. 213. S.C. D 209. C 205. F 211. along state highways are available In states like Oregon and Utah, roadside sign 203. C 210. N.M. C 207. I 202. W Mexico themselves driving while under the influence of alcohol or controlled while under the influence of alcohol themselves driving in states like for official memorial signs substances are ineligible Texas, fatalities, such as DUI deaths. fatalities, such as 2013] PUBLIC SPACE ON PRIVATE MEMORIALS sign to a state-approved but will erect private memorials, prohibit of a loved one. “last alive” place mark the the for example, In Florida, on state Safely” marker round “Drive erect a fifteen-inch DOT will 151 them. prohibit unless local regulations accident victims, roads for Illinois, States like \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 28 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 80 Side A 08/28/2013 10:13:22 A 08/28/2013 80 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 80 Side B 08/28/2013 10:13:22 In and http:// IGHWAY 224 seven 218 And in 222 http://www. http://dps.sd. 228 available at , http://www.dot.state.fl. 2010 WLNR 13421675 available at , available at , ROGRAM P three years in West Vir- three years in West ROGRAM IGN vailable at P available at 221 S NFORMATION the memorial sign is offered to the memorial sign I EMORIAL IGN 226 but cost up to $350 in Texas but cost EMORIAL S M M 217 HINK note 205. (Mar. 15, 2007), Roadside Shrines Help Loved Ones Deal With Trag- ., July 4, 2010, a , T ICTIMS OADSIDE EV § 2012). 101.10(d)(1) (West 2005 & Supp. supra Roadside markers may stay in place for one Roadside markers ., V ., R . R ., ., Procedural Document Topic No. 850-050-004-c, H ., Procedural Document Topic No. 850-050-004-c, § may take posses- 25.957(c) (2013) (noting the applicant § $350.00). 25.954(a) (2013) (setting fee at and the life of the sign in South Dakota. and the life of the AFETY § request of a memorial sign); 25.952 (2013) (permitting the § 30-151-550(D) (2012) (“After the two-year term . . . the ARKERS ODE . § 2012). 125/20(c) (West 2007 & Supp. . § 2012) (excluding memorial 125/15(f) (West 2007 & Supp. . § 2012) (“The qualified rela- 125/15(e) (West 2007 & Supp. 219 RIB and Virginia, . S M ODE 223 . C ODE ODE ODE two years in Illinois; TAT TAT TAT . § 30-15-7 (Supp. 2012). RANSP T RANSP RANSP UB RANSP 225 . C and Wyoming . C T . C T IGH . S . S . S NN . C T T P 220 R. § 157-6-9.5.i (2012). 216 . A TOF OMP OMP OMP DMIN ’ TOF DMIN EMORIAL TOF DMIN TOF ’ TOF DMIN ODE ’ ’ ’ . & H TAT EP . C . C . C M EP . A . A . A EP EP EP TS ITTSBURGH . C 227 . A LL LL LL A A EX . D EX EX . D . S . D . D , P YO AL AL LA LA AFETY 215 www.dot.ca.gov/hq/traffops/signtech/signdel/victims.htm (last updated Nov. 16, www.dot.ca.gov/hq/traffops/signtech/signdel/victims.htm 2010). dot.state.wy.us/wydot/news_info/roadside_memorials (last visited Mar. 13, 2013). dot.state.wy.us/wydot/news_info/roadside_memorials gov/enforcement/accident_records/think_sign_information.aspx (last visited Mar. gov/enforcement/accident_records/think_sign_information.aspx 13, 2013). us/proceduraldocuments/procedures/bin/850050004.pdf (last visited Mar. 13, us/proceduraldocuments/procedures/bin/850050004.pdf 2013). sion of the sign after it has been removed). memorial shall be removed by VDOT personnel [and] [t]he memorial nameplate will be returned to the applicant or the designated family member . . . .”). marker for impaired victim drivers “unless the next of kin of any other victim or marker for impaired victim drivers “unless to the erection of the memorial victims killed in the crash consent in writing marker”). the placement of flowers, pictures, or tive shall agree not to place or encourage other items at the crash site.”). 43 T edy S Other states, such as Pennsylvania, Ohio, New York, Rhode Is- as Pennsylvania, Ohio, New Other states, such The cost of the sign and length of time it may remain erected varies remain erected of time it may of the sign and length The cost 220. F 218. 43 T 225. 43 T 217. W 221. I 605 224. S.D. D 226. 24 V 219. C 227. N. M. S 215. 605 I 216. F 222. W. V 228. JoAnne Klimovich Harrop, 223. C 214. I 605 states like Texas $1,000 in California. years in California; ginia, which is renewable for another three years for $200; for another three years ginia, which is renewable the victim’s family after it is removed from the roadside.the victim’s family And in New destroy a roadside to knowingly deface or Mexico it is a misdemeanor memorial. year in Florida; land, and Nebraska do not have an official policy for roadside memori- do not have an official policy for land, and Nebraska hazard. any marker that poses a safety als but will remove among the states that offer approved signs. states that offer among the are markers Roadside free in Florida 152 are expressly Illinois in mourners program, sign the state-approved personal memorial with the official from augmenting discouraged items. NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 29 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 80 Side B 08/28/2013 10:13:22 B 08/28/2013 80 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 81 Side A 08/28/2013 10:13:22 R R R , See 233 EDGER L In New 1999 WLNR Crosses Relay 230 ATRIOT , P note 201, at A1 (not- available at Some Florida cities, Some Florida supra 231 note 161, at 1A. supra , The Town of Stoughton, Massachu- The Town of Stoughton, Moreover, he notes, “I think you’d be Moreover, he notes, and other jurisdictions allow policies jurisdictions allow and other , June 8, 1999, at A1, 2012 WLNR 21512743. 232 229 note 9, at 158 (“Two other states (Iowa and Minne- note 9, at 158 (“Two other states (Iowa and 234 note 164, at A1 (“The Ohio Department of Transporta- note 164, at A1 (“The Ohio Department of note 3, at 351 (noting that in states like Texas, “enforce- note 3, at 351 (noting that in states like Texas, NQUIRER supra E supra available at § 19:2-5.10(c) (2013). supra note 201, at A1 (“Five of those states with a policy also said that note 201, at A1 (“Five of those states with How Long Is Too Long for Roadside Memorials? ODE INCINNATI . C supra , C DMIN Reid & Reid, Oct. 9, 2012, at 8, 8445925; Warsmith, ing Georgia cities and counties regulate their own roadways and thus set their ing Georgia cities and counties regulate their own roadside memorials policies). ‘counties, cities, or precincts’ in their state have their own regulations regarding ‘counties, cities, or precincts’ in their state without an official state policy in- roadside memorials and four additional states have their own policies.”). dicate that counties, cities, or other jurisdictions Messages also ment practices vary from county to county”). Memorials Create Dilemma for Cities Id. Id. tion doesn’t permit memorials, but allows them to remain as long as they don’t tion doesn’t permit memorials, but allows When the state does maintenance pose a hazard or draw away drivers’ attention. are removed, said Justin Chesnic, a work, such as mowing, memorials in the way spokesman for the department’s District 4.”). with their returned survey a sota) reported not having a policy but included how private memorials would be han- ‘statement’ or ‘guidelines’ that spelled out Schneider, dled in the absence of state legislation.”); (“While there is no law against erecting roadside memorials, PennDOT District (“While there is no law against erecting roadside is kind of an unwritten procedure. 11 spokesman Jim Struzzi says there needs of the family and friends when it ‘PennDOT is certainly sympathetic to the would prefer not to see them, but comes to roadside memorials,’ he says. ‘We to people. We would say, if they want conversely, we appreciate what they mean they are erecting the roadside memo- to erect them, that they keep in mind where rial so as not to be distracting to drivers.’”); Perry Brothers, 235 As an alternative to a roadside memorial sign, Delaware offers a to a roadside memorial sign, Delaware As an alternative 230. Schneider, 233. Erin Shannon, 234. 232. 231. A N.J. 229. Dickinson & Hoffmann, 235. Jersey, privately erected memorials may remain along the Atlantic remain along the memorials may erected Jersey, privately Jersey which the South ten days, after for only City Expressway will remove them. Authority Transportation such as Boca Raton and Weston, prohibit all memorial markers on city memorial markers prohibit all Raton and Weston, such as Boca handle inci- cities, such as Tamarac and Parkland, roads while other basis. dents on a case-by-case setts, for example, has no official policy on roadside memorials. has no official policy on roadside setts, for example, hard-pressed to find a town that has a specific bylaw. Usually it’s just a town that has a specific bylaw. hard-pressed to find heal, it gets cleared and once some time passes to a matter of decorum, up.” to be enacted and enforced at the local or municipal level. at the local or and enforced to be enacted “green memorial” that allows a tree, bush, or garden to be planted in that allows a tree, bush, or garden “green memorial” Stoughton Police Department’s spokesman Robert Devine says, “Over Department’s spokesman Robert Stoughton Police down once they memorials] usually get taken time, they [roadside shape.” start getting in rough 2013] for “guidelines” have states policy, some state an official of the absence PUBLIC SPACE ON PRIVATE MEMORIALS roadside memorials, handling 153 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 30 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 81 Side A 08/28/2013 10:13:22 A 08/28/2013 81 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 81 Side B 08/28/2013 10:13:22 , , IGH- TAR RAND PERA- and ODAY S H Mis- O , G 243 AY 237 TATE 240 In states available at EDGER http://www. W S , USA T , April 29, 2012, 245 & L IGHT OF Roadside Memorials (2005), note 161, at 1A (“Cit- Montana, ILOT ., Oct. 23, 2005, at A1, . R -P ., http://www.modot.org/ available at 242 EMORIALS ON KLAHOMAN ULL ONT Journalist Chris Ross Journalist Chris supra , : M , O EMORIALS RANSP ., M 2003 WLNR 13842930. NE J. B 246 IRGINIAN T Iowa, M O 247 , V 241 RANSP TOF ’ In states like Utah, states like In OVED T EP OADSIDE L 236 ROVIDENCE . D R TOF available at O ’ , P Schneider, supra note 201, at A1 (“They are EP 2010 WLNR 11439853. , M 2005 WLNR 12830393. . D accord mourners are encouraged to participate in are encouraged mourners ONT OLICY FOR http://www.dot.wisconsin.gov/business/rules/docs/road- EMEMBERING A 239 ., P ., R available at 2012 WLNR 9136664; Seth Seymour, available at . §encroachments on the right of 60-6-101 (2011) (prohibiting RANSP States Seek Alternatives to Roadside Memorials States Seek Alternatives § 24-03-23 (2002). . § 318.3(7) (West 2012). But these laws are often not enforced. But these laws are Heaven Begins at Roadside Crosses RANSP T . § 9-21-4-6 (West 2012). NN ch. 7 (2007) (defining encroachments), Memorials Create Dilemma for Cities note 190 (“Roadside memorials technically violate the law because note 190 (“Roadside memorials technically T , July 13, 2003, at F8, ODE available at NN 2005 WLNR 17261982 (“Relatives of the deceased can adopt a two- 2005 WLNR 17261982 (“Relatives of the deceased A NN note 66, at 50; 244 A States Eye Bans on Roadside Memorials: Officials Fear the Shrines States Eye Bans on Roadside Memorials: TOF . C See also Crosses to Bear ’ A WAYS TIONS TOF ’ RESS ODE ANUAL available at EP supra ODE ENT P EP ODE supra . C M D (2012), C and Wisconsin, . D . C IS ONT TAH APIDS ND OWA 238 June 4, 2010, at 3A, July 12, 2005, at 8, mdt.mt.gov/other/rw/external/manual/chapter_7.pdf. at 21A, ies across Florida have rules for regulating the erection or duration of roadside memorial markers. But some don’t follow them, to avoid the delicate and emo- tional issue of taking down a marker in memory of somebody who was killed.”). services/MemorialDesignationPrograms.htm (last visited Mar. 21, 2013). services/MemorialDesignationPrograms.htm already prohibited under state law, and many are removed as workers cut the side.pdf. way for state highways); M they are on public property, but they are often untouched because of their sensi- they are on public property, but they are often tive nature.”); mile section of highway and have a standard sign erected there in the name of the mile section of highway and have a standard their section of roadway at least deceased. But they must also agree to clean three times a year.”). Against Law; However, State Is Sympathetic Will Be a Distraction to Other Motorists and May Cause More Accidents Will Be a Distraction to Other Motorists and available at R http://www.udot.utah.gov/main/uconowner.gf?n=10465114960298226. Memorial Designation Programs Roadside memorials are prohibited as an obstruction or encroach- are prohibited as an obstruction Roadside memorials 244. N.D. C 247. Ross, 239. W 241. I 237. U 246. Dreier, 245. Robert Medley, 243. M 242. I 240. J.R. Ross, 238. 236. Mike Chalmers, North Dakota. souri, where erecting roadside memorials is prohibited, public officials often memorials is prohibited, public where erecting roadside memorials out of respect. turn a blind eye to notes that “in probably no other area of public life does practice di- no other area of public life notes that “in probably from official policy.” verge so dramatically the Adopt-A-Highway roadside cleanup program and use the program and use the cleanup program roadside the Adopt-A-Highway loved one. memorial to the sign as a Wisconsin’s bureau David Vieth, concerned isn’t just says, “Wisconsin operations director, of highway whizzing by.distraction for drivers memorials are a that the Officials stop to when mourners safety hazard about the potential also worry often just a few feet off the interstate.” visit the memorials, ment of a highway in states like Indiana, ment of a highway 154 fatality. of a highway vicinity the NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 31 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 81 Side B 08/28/2013 10:13:22 B 08/28/2013 81 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 82 Side A 08/28/2013 10:13:22 R R R R YM- 250 TOF TATE ’ S But EP , S 255 note 2, at note 2, at . D http://www. RIZ available at TUDY OF S supra supra ACILITIES note 33, at 244 ., A State officials . F The memorial ROUP UB supra 248 254 G available at . & P EADER IN THE (n.d.), 69–70 (2008), 69–70 LANNING RANSP : A R T . P TOF ’ NVTL ANDBOOK EMORIALS EP M H NTHROPOLOGY note 9, at 161; Kennerly, A note 9, at 163; Collins & Rhine, note 9, at 161; Collins & Rhine, OADSIDE R SPEECH CLAUSE supra supra supra they undoubtedly serve an important expres- they undoubtedly serve an important YMBOLIC RESERVATION , S 185 (Janet L. Dolgin et al. eds., 1977). 253 P note 33, at 244. RIMER FOR note 62 (thesis at 84). OLGIN 252 ISTORIC EANINGS , A P supra L. D BOLS AND OF M supra ., H Professor of communication studies Rebecca Kennerly, Professor of communication IV. THE FREE ROADSIDE MEMORIALS AND ANET LASKA J at 85. at 251. This “grace” is also reflected in the policy statement from various 251 A In states where roadside memorials are illegal, authorities memorials are where roadside In states RANSP dot.state.ak.us/stwddes/dcsrow/assets/pdf/roadsidememorials.pdf. state agencies. For example, Arizona’s Historic Preservation Specialists ac- are not considered historic proper- knowledge that while “Roadside Memorials “with respect for the families that ties,” Arizona DOT treats these memorials install and maintain the memorials.” E www.azdot.gov/highways/EPG/EPG_Common/Docs/Technical/Cultural_HPT_ Handbook.doc. for Roadside Memorials” starts with the And Alaska’s “Primer caption “We respect your feelings.” D See Id. grass and pick up litter along the roadways. But workers often leave the memori- als for a time in deference to family and friends.”). agencies responsible for safety (“Despite federal and state laws, local government a reluctance to remove roadside and maintenance of public roads often indicate shrines.”). 236. 237. Id. T 249 Roadside memorials serve as a powerful signifier of death and serve as a powerful signifier Roadside memorials Scholars have found a common theme of deference among DOT of- DOT among of deference theme a common found have Scholars 253. 254. Wagner, 255. 248. Dickinson & Hoffmann, 249. Dickinson & Hoffmann, 250. Dickinson & Hoffmann, 251. Kennerly, 252. are generally sensitive to the grief of the loved ones and show a great ones and show the grief of the loved sensitive to are generally official pol- any notwithstanding to the memorials, deal of deference icy. speaks as much for the memorial maker as it does the loved one who is speaks as much for the memorial maker image of the loved one. memorialized by reflecting the maker’s sive function for the loved ones of the deceased. sive function for the loved ones who has extensively studied roadside memorials, explains that these studied roadside memorials, who has extensively as they are con- “granted a certain ‘grace’ insofar shrines are typically authentic and expressions of grief and therefore sidered spontaneous above reproach.” space. themselves to a single And while these symbols do not lend message or meaning, often leave the memorials in place unless a complaint is lodged. a complaint is in place unless the memorials often leave ficials, who try to balance safety concerns while simultaneously re- while simultaneously safety concerns try to balance ficials, who loved one. grieve for the a family’s need to specting 2013] PUBLIC SPACE ON PRIVATE MEMORIALS 155 acknowledging the take the unofficial stance of These local agencies memorials undis- to grieve and leave most need for individuals turbed. \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 32 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 82 Side A 08/28/2013 10:13:22 A 08/28/2013 82 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 82 Side B 08/28/2013 10:13:22 258 Ward v. Rock Against Ra- See 256 Prime Media, Inc. v. City of Brentwood, see also , Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, , 491 U.S. at 798–99. These significant governmental interests extend to both These significant governmental The Supreme Court has emphasized that time, place, and has emphasized that time, The Supreme Court 259 cism, 491 U.S. 781, 798–99 (1989); U.S. Postal Serv. v. Council of Greenburgh (1989); U.S. Postal Serv. v. Council cism, 491 U.S. 781, 798–99 Civic Ass’ns, 453 U.S. 114, 132 (1981). Content-based regulations, on the other governmental interest, and hand, must (1) be necessary, (2) serve a compelling (3) be narrowly drawn to achieve that end. Widmar v. Vincent, 454 U.S. 263, (1980). (1981); Carey v. Brown, 447 U.S. 455, 461, 464–65 269–70 398 F.3d 814, 823 (6th Cir. 2005) (emphasizing that “billboard regulations, whatever other strengths and weaknesses they may have, advance a police power interest in curbing community blight and in promoting traffic safety”). 790–91 (1984); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984); (1984); Clark v. Cmty. for Creative Non-Violence, 790–91 (1981); Lindsay v. U.S. 490, 514–17 Metromedia, Inc. v. City of San Diego, 453 (upholding a total (5th Cir. 1987) City of San Antonio, 821 F.2d 1103, 1109–11 furthered the city’s aesthetic in- ban on portable signs because (1) the ordinance broader than necessary to terest, (2) ban of portable signs was not substantially methods of communication availa- protect that interest, and (3) there were ample v. Manatee Cnty., Fla., 783 F.2d ble as alternatives to portable signs); Harnish total ban on portable and changeable 1535, 1540 (11th Cir. 1986) (upholding a the governmental goal of pro- copy temporary signs because the ban “advanced County, and the record [was] bare tecting the aesthetic environment of Manatee of evidence from which it might be inferred that less restrictive means existed to accomplish the objective . . .”); Ward See, e.g. fora, a valid time, place, and manner regulation must satisfy three criteria: (1) fora, a valid time, place, and manner regulation interests; and (3) leave open content-neutral; (2) serve significant governmental adequate alternative channels of communication. 257 When All Roadside Memorials Are Banned When All Roadside The courts have confirmed that states may regulate signage and The courts have confirmed that states For the states that prohibit all roadside memorials, the question prohibit all roadside memorials, For the states that 258. 259. 256. Inc., 452 U.S. 640, 647 (1981). Heffron v. Int’l Soc’y for Krishna Consciousness, 257. viewed as traditional public For urban streets, which like city parks are generally manner restrictions “are not invalid simply because there is some im- “are not invalid simply because manner restrictions on speech;” in- that might be less burdensome aginable alternative to serve the “must be narrowly tailored deed, such regulations but . . . need not be content-neutral interests government’s legitimate, means of doing so.” the least-restrictive or least-intrusive commercial advertising based on aesthetic and traffic safety con- commercial advertising based on cerns. arises whether such a prohibition abridges the Free Speech interests a prohibition abridges the Free arises whether such maker.of the memorial speech in Content-neutral restrictions on manner regula- reasonable time, place, and public fora are considered government narrowly tailored to serve a significant tions if they are of communica- open adequate alternative channels interest and leave tion. 156 is not unbounded. one a loved memorialize right to the expressive The not guar- Amendment does that “the First Court has noted Supreme places or at all times and one’s views right to communicate antee the be desired.” that may in any manner A. NEBRASKA LAW REVIEW of Communication Channels of Alternative Adequacy [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 33 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 82 Side B 08/28/2013 10:13:22 B 08/28/2013 82 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 83 Side A 08/28/2013 10:13:22 Second, content- Second, 261 , 431 U.S. at 93 (alternatives The Supreme Court has 266 Linmark Assocs. The Supreme Court has explained The Supreme Court 265 263 , 466 U.S. at 811–15. The inquiry into “ample alternative , 466 U.S. at 806. First, the government has a “weighty, essen- a “weighty, government has First, the 260 However, courts are unwilling to invalidate a regulation However, courts are unwilling to , Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 745 (1st Cir. , Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516 (1981) (ample , 41, 54 (1986); Galena City of Renton v. Playtime Theatres, Inc., 475 U.S. 267 And third, there were ample alternative channels of commu- alternative channels there were ample And third, at 810–12. whereas other courts focus more on the adequacy of the avail- focus more on the adequacy whereas other courts at 812. 262 unsatisfactory). channels of communication” is not coextensive with the “less restrictive means” channels of communication” is not coextensive test. has clarified that “less restrictive The Seventh Circuit Court of Appeals equally effective regulations that are means” examines whether there are other, “ample alternative channels” exam- less restrictive of protected activity, whereas communication are sufficient and ines whether the remaining modes of equivalent to the prohibited modes. Wis. Action Coal. v. City of Kenosha, 767 to distinguish ‘less restrictive F.2d 1248, 1254 n.3 (7th Cir. 1985) (“It is important alternatives’) from ‘ample alternative means’ (or equivalently ‘less restrictive channels.’ into whether there are other regula- The former denotes an inquiry activity but protect the governmental tions which are less restrictive of protected interest served by the challenged regulation. The ‘ample alternative channels’ and asks whether those methods inquiry focuses on methods of communication are equivalent to the prohibited not prohibited by the challenged regulation methods.”). 1995) (noting “the lens of inquiry must focus not on whether a degree of curtail- 1995) (noting “the lens of inquiry must focus communicative avenues are ment exists, but on whether the remaining adequate”). omitted). alternative channels not available); v. Leone, 638 F.3d 186, 203 (3d Cir. 2011). See, e.g. See, e.g. Taxpayers for Vincent Id. Id. See, e.g. Taxpayers for Vincent 264 In evaluating the availability of alternative channels of communi- availability of alternative channels In evaluating the 261. 262. 266. Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85, 93 (1977) (internal citations 267. 265. 263. 264. 260. neutral regulation applied regardless of the subject matter on the the subject matter regardless of regulation applied neutral signs. struck down regulations that afford such unsatisfactory alternative struck down regulations that afford channels. that alternative channels that “involve more cost and less autonomy” that “involve more cost that alternative channels seeking sales infor- reach persons not deliberately are “less likely to the message,” effective media for communicating mation,” are “a less and are thus “far from satisfactory.” tially esthetic interest” in reducing visual clutter. reducing visual interest” in tially esthetic nication because the ban did not extend to private property, and noth- the ban did not extend to private nication because or important these signs were a “uniquely valuable ing indicated that mode of communication.” able communicative avenues. able communicative cation, some courts require that an alternative means provide only a require that an alternative means cation, some courts the mes- for the speaker to communicate “reasonable opportunity” sage, 2013] speech. noncommercial and commercial on a city’s ban In upholding PUBLIC SPACE ON PRIVATE MEMORIALS all ordinance Court ruled the the Supreme on public property, signs restriction and manner time, place, permissible was a constitutionally reasons. for three 157 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 34 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 83 Side A 08/28/2013 10:13:22 A 08/28/2013 83 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 83 Side B 08/28/2013 10:13:22 273 271 274 Second, Citizens for 276 accord Third, an alternative fo- and live entertainment. 277 272 handbills on the public streets, handbills on the 270 Saieg v. City of Dearborn, 641 F.3d 727, 740 (6th Cir. Saieg v. City of Dearborn, 641 F.3d 727, 740 First, “[a]n alternative is not ample if the First, “[a]n alternative 275 accord Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. Heffron v. Int’l Soc’y for Krishna Consciousness, 268 , 522 F.3d at 1024 (citing Galvin v. Hay, 374 F.3d 739, 756 (9th Cir. see also The Supreme Court has been troubled by laws that com- been troubled Court has The Supreme (quoting Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. (quoting Bay Area Peace Navy v. United States, 269 Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1225 (10th Cir. 2007). Peace in Space v. City of Colo. Springs, 477 (1939). Irvington, 308 U.S. 147, 164–65 Cir. 2009). 2011) (“Any time, place, and manner restriction must leave open ample alterna- 2011) (“Any time, place, and manner restriction their messages, although tive channels by which speakers can communicate of communication.”) (internal quota- speakers are not entitled to their best means 2d 313, 322 (D. Md. 2010) (“Speakers tion omitted); Ross v. Early, 758 F. Supp. the Constitution demands are not entitled to their ideal means of communication; communicate effectively.”) (internal only that individuals retain the ability to quotation omitted). 640, 654 (1981) (“The First Amendment protects the right of every citizen to reach the minds of willing listeners and to do so there must be opportunity to win their attention.”). 2004)); Menotti v. City of Seattle, 409 F.3d 1113, 1138 (9th Cir. 2005). 1990)); Id. Long Beach 969 (9th Cir. 2008); The Ninth Circuit Court of Appeals has identified four factors to Court of Appeals has identified The Ninth Circuit Courts have also found alternative channels of communication in- of communication channels also found alternative Courts have 270. (1938). Lovell v. City of Griffin, 303 U.S. 444, 451–52 271. Jamison v. Texas, 318 U.S. 413, 416 (1943). 272. v. Town of (1943); Schneider Martin v. City of Struthers, 319 U.S. 141, 145–49 273. (1981). Schad v. Mount Ephraim, 452 U.S. 61, 75–76 274. City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994). 275. Beach, 574 F.3d 1011, 1025 (9th Long Beach Area Peace Network v. City of Long 276. 269. (9th Cir. 2005); Menotti v. City of Seattle, 409 F.3d 1113, 1138 277. 268. Local 586 v. NLRB, 540 F.3d 957, United Bhd. of Carpenters & Joiners of Am. an alternative avenue is not adequate if the location of the expressive an alternative avenue is not adequate activity is part of the expressive message. rum is not adequate if it burdens the spontaneity of the speech, like rum is not adequate if it burdens speaker is not permitted to reach the intended audience.” speaker is not permitted pletely foreclose an entire medium of expression.pletely foreclose Court struck The of pam- that completely banned the distribution down ordinances municipality, phlets within a consider in determining whether alternatives for communication are whether alternatives for consider in determining ample and adequate. adequate when the regulation forecloses “an entire medium of public entire medium forecloses “an when the regulation adequate or set- community of a particular across the landscape expression ting.” While prohibitions that completely foreclose an entire medium may be that completely foreclose an entire While prohibitions they pose to the the Court emphasized “the danger content-neutral, is readily apparent—byfreedom of speech a common eliminating much speech.” such measures can suppress too means of speaking, 158 of method “preferred the speaker’s restricts it because simply communication.” NEBRASKA LAW REVIEW of literature, door-to-door distribution [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 35 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 83 Side B 08/28/2013 10:13:22 B 08/28/2013 83 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 84 Side A 08/28/2013 10:13:22 R R R 279 IOLENCE Place- V 282 280 And fourth, the fourth, And 283 ANDSCAPES OF 278 L S ’ Scholars emphasize “the Scholars emphasize MERICA 281 : A ACLU of Colo. v. City and Cnty. of Den- Thus, the location of the speech ROUND 284 G See also HADOWED note 2, at 239. , S A memorial in a cemetery does not allow the A memorial in a cemetery does not 285 OOTE supra , 522 F.3d at 1024. note 2, at 136. 8 (Univ. of Tex. Press rev. ed. 2003) (“Sanctification involves the 8 (Univ. of Tex. Press rev. ed. 2003) (“Sanctification E. F note 22, at 53. , 522 F.3d at 1024. , 522 F.3d at 1024. AND supra supra , 374 F.3d at 756. RAGEDY ENNETH K T ver, 569 F. Supp. 2d 1142, 1164 (D. Colo. 2008) (explaining that an alternative ver, 569 F. Supp. 2d 1142, 1164 (D. Colo. notice is not an adequate alternative). requiring a permit or some other type of creation of what geographers term a ‘sacred’ place—acreation of what geographers term a ‘sacred’ site set apart from its sur- roundings and dedicated to the memory of an event, person, or group.”). See See Long Beach Long Beach Long Beach Galvin A cemetery or other memorial site is not an adequate substitute for memorial site is not an adequate A cemetery or other be ineffective and would vi- Moving the memorial elsewhere would A number of states prohibit roadside memorials.A number of states content- These 279. 285. Bednar, 282. Collins & Rhine, 280. 281. 283. Suter, 284. 278. ment of the memorial on the “last alive” place has the effect of trans- ment of the memorial on the “last sacred space. forming the public land into a private, cost and convenience of an alternative channel is a consideration. alternative channel convenience of an cost and issue of placement and place is absolutely critical to the bereaved who issue of placement and place is absolutely a sacred, significance.” ascribe to the location a special, even is part of the expressive message. Changing the location undermines the message. As Professor Bednar observes, “Moving the memorial function as a spatially unique elsewhere would negate the shrine’s dead, where mourning intervenes in portal between the living and the the site of trauma.” memorial maker to communicate with the intended audience, namely memorial maker to communicate a roadside memorial. to me- “last alive” place is deeply important The morial makers. it is sancti- is of supreme importance because The site blood of the loved one. fied by the spilled memorial on the “last alive” place. tiate the importance of placing the caution are inextricably inter- The message of remembrance and twined with the “last alive” place. neutral regulations serve the significant government interests of pro- serve the significant government neutral regulations and community aesthetics.tecting traffic safety ques- The unresolved leaves ample complete ban on all roadside memorials tion is whether a for the mourner’s communication.and adequate alternatives Memo- is so inextricably that the place of the memorial rial makers can argue moving the memo- the message of the memorial that intertwined with alternative. would not be an ample and adequate rial to another place 2013] or registration. notice for advanced requirements PUBLIC SPACE ON PRIVATE MEMORIALS place, and of time, noted the “analysis Circuit has also The Ninth the regu- into whether include an inquiry restrictions should manner 159 as to ham- a public forum of a message in alters the content lation so to convey.” what they mean from conveying per speakers \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 36 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 84 Side A 08/28/2013 10:13:22 A 08/28/2013 84 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 84 Side B 08/28/2013 10:13:22 R R For 290 And even 291 292 By removing these memorials By removing these Memorial makers can argue that argue can makers Memorial 289 286 Justice John Paul Stevens has acknowl- Justice John Paul 287 note 2, at 226 (“It is increasingly evident, however, that note 2, at 226 (“It is increasingly evident, 288 supra note 35, at 152. supra Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 654 Heffron v. Int’l Soc’y for Krishna Consciousness, at 240. at 241(“Whether they seek to eliminate or to standardize roadside memorials, (1981); Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir. (1981); Bay Area Peace Navy v. United 1990). policy makers and enforcement personnel will continue to be frustrated by the spontaneous memorial conundrum.”). official markers, from whatever source, are no substitute for those built by family official markers, from whatever source, are and friends.”). Id. Id. See vens, J., dissenting) (plurality opinion). When a Uniform, Official Marker Eliminates When a Uniform, in the Roadside Memorial Personal Involvement Scholars who have studied roadside memorials suggest that an of- Scholars who have studied roadside Some states prohibit handmade roadside memorials, but offer uni- Some states prohibit handmade roadside These roadside memorials leave visible and poignant reminders of poignant reminders leave visible and memorials These roadside 287. Vincent, 466 U.S. 789, 812 (1984). Members of the City Council v. Taxpayers for 288. Gibson, 292. 291. 290. Collins & Rhine, 289. 515 U.S. 753, 800 (1995) (Ste- Capitol Square Review & Advisory Bd. v. Pinette, 286. those who would erect a roadside memorial, the personal involvement those who would erect a roadside merit of the marker. is key to the enduring therapeutic when official policies offer an official marker in lieu of a handmade when official policies offer an official still occur. marker, spontaneous memorials often from the site of death, the message of the memorial is altered.death, the message of the memorial from the site of By makers argue memorial, would-be memorial eliminating the roadside to communicate an adequate alternative channel they do not have their messages. they would have no alternative avenue to communicate their caution- communicate their avenue to have no alternative they would roadside. removed from the the memorial is other drivers if ary tale to important valuable or are a “uniquely memorial signs Thus, these communication.” mode of edged that sometimes “the location of the sign is a significant compo- “the location of the sign is a edged that sometimes it conveys.” nent of the message ficial marker can never fully replace the want or the need of some be- ficial marker can never fully replace at their “last alive” place. reaved to remember the deceased form, official markers to commemorate road deaths.form, official markers to commemorate These content- significant government interests neutral regulations again serve the of road safety and aesthetics. But the unresolved question is whether involvement and participation with a policy that eliminates personal an adequate alternative channel of the creation of the memorial offers maker. communication for a would-be memorial death on public space. death on public B. of Alternative Channels of Communication Adequacy 160 roadway. along the drivers other NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 37 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 84 Side B 08/28/2013 10:13:22 B 08/28/2013 84 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 85 Side A 08/28/2013 10:13:22 R R R R R 300 293 The mother note 4, at 161. 295 supra ix (McMillian Publ’g Co. 1986) LAUSE C Eliminating personal involvement in Eliminating personal involvement 298 note 4, at 586; Haney et al., STABLISHMENT E supra HE By either supplementing an official marker or By either supplementing , T note 33, at 246. note 33, at 246. note 33, at 246. note 201, at A1. 297 EVY And second, the bereaved will often supplement a will often supplement the bereaved And second, note 81 (“I regard the attempts of various authorities to legislate or note 81 (“I regard the attempts of various supra supra supra supra 294 W. L supra 299 Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1024 Long Beach Area Peace Network v. City of When state-issued signs are insufficient, the bereaved will signs are insufficient, the bereaved When state-issued EONARD (“Given the extraordinary religious diversity of our nation, the establishment (9th Cir. 2008); Galvin v. Hay, 374 F.3d 739, 756 (9th Cir. 2004); ACLU of Colo. v. City and Cnty. of Denver, 569 F. Supp. 2d 1142, 1164 (D. Colo. 2008). L See regulate this custom as futile and misguided because those who feel the need to regulate this custom as futile and misguided where they died will continue to memorialize their loved ones near the roadways at control. In many cases, where do so, regardless of legislation or other attempts families and loved ones simply re- authorities have removed roadside shrines, place them. Tradition is a powerful force in society.”). 296 Scholars observe that memorial makers are generally not con- Scholars observe that memorial The Establishment Clause has often been employed as the vehicle The Establishment Clause has often Erecting state-approved markers while banning privately-made banning while markers state-approved Erecting 297. Kennerly, 300. The Establishment Clause helps insulate religion from politics and vice versa. 295. Kennerly, 296. Schneider, 298. Clark & Franzmann, 299. 293. Kennerly, 294. Grider, V. ROADSIDE CROSSES AND THE ESTABLISHMENT CLAUSE of a 21-year-old who was killed in a car accident recently told a jour- was killed in a car accident recently of a 21-year-old who enough” for sign “would not be personal nalist that a state-issued her. the memorial gives would-be memorial makers a claim that such a the memorial gives would-be memorial of the speech and undermines the policy burdens the spontaneity expression. strained legally or culturally. Memorial makers evince a self-pos- own memorial and to grieve the sessed moral authority to erect their way they want and need to. by erecting a handmade memorial in addition to a state marker, the memorial in addition to by erecting a handmade alone is an inad- that the official marker bereaved are communicating for communication. equate alternative sanctioned marker or erect a private memorial nearby. sanctioned marker often find ways to personalize the sign and create a memorial. personalize the sign and create a often find ways to Profes- numerous that she has personally “encountered sor Kennerly notes in both Florida the base of state-sanctioned markers small shrines at and New Mexico.” to challenge the display of religious symbols on public property. to challenge the display of religious of religion through dis- For some in the community, the endorsement memorials may offer an inadequate alternative channel of communi- channel of alternative may offer an inadequate memorials in two ways. is illustrated this inadequacy cation, and be- First, the a removed memorial. replace will often quickly reaved 2013] PUBLIC SPACE ON PRIVATE MEMORIALS 161 even when observed that Grider has professor Sylvia Anthropology “simply re- the bereaved memorials, remove roadside state officials place them.” \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 38 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 85 Side A 08/28/2013 10:13:22 A 08/28/2013 85 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 85 Side B 08/28/2013 10:13:22 . , EV Re- on Mc- eche in . 93, 94 302 L. R See also OL . 395, 397 as “[doing] “Play in the EV . L. 725, 728 Reconciling the ARSHALL eche with a ban- . L. & P ONST L. R EV 301 Van Orden . R Lynch v. Donnelly . J. C EX , 35 T. M A YRACUSE and The Constitutionality of Re- In , 492 U.S. 573 (striking down , Steven G. Gey, 303 55 S , 8 U. P eche, or nativity scene, McCreary 371, 371 (2008) (noting the Supreme eche Scene on Public eche Scene on See, e.g. Y ’ Van Orden, 12 T OL . P and UB with Cnty. of Allegheny McCreary eche located in a display near the heart of the eche located in a eche, located on the grounds of the state capitol, 100 yards . . . .”). . J.L. & P ARV A First Amendment Establishment Clause Analysis of Perma- A First Amendment Establishment Clause eche on the grand staircase of the county courthouse). eche on the grand staircase of the county eche located on the lawn of a county office building unconstitutional). Van Orden , 31 H Lynch v. Donnelly, 465 U.S. 668 (1984) (upholding display of a cr` Lynch v. Donnelly, 465 U.S. 668 (1984) (upholding and eche is “a visual representation of the scene in the manger in Bethlehem eche is “a visual representation of the scene 217, 221 (2010) (“Establishment Clause law is unquestionably unstable after 217, 221 (2010) (“Establishment Clause law (2007) (characterizing the Court’s efforts in (2007) (characterizing the Court’s efforts in little to clarify the law” and “leaving lower courts to sort out the principles that little to clarify the law” and “leaving lower substantially similar displays”); L. resulted in such disparate results regarding Darnell Weeden, (2005) (“[I]n the past thirty years, the Supreme Court’s Establishment Clause (2005) (“[I]n the past thirty years, the Supreme Sarah M. Isgur, jurisprudence has become increasingly ambiguous.”); (2006) (characterizing Establishment Clause doctrine as “a hopeless muddle” and (2006) (characterizing Establishment Clause recent years, one or more of the nine arguing that “[a]t one point or another in different standards for enforcing the Justices have signed opinions proposing ten ACLU v. McCreary County: Establishment Clause”); Roxanne L. Houtman, display of a cr` Court has created “multiple and overlapping analytical frameworks” in its Estab- Court has created “multiple and overlapping G. Smith, lishment Clause jurisprudence); Douglas shortly after the birth of Jesus, as described in the Gospels of Luke and Mat- shortly after the birth of Jesus, as described thew.” U.S. 573, 580 n.4 (1989). Cnty. of Allegheny v. ACLU, 492 the city’s shopping district), building the Wall Between Church and State, building the Wall Between Church and Supreme Court’s Four Establishment Clauses Accommodation Under the First Joints”: The Struggle to Define Permissive Amendment ligious Symbolism After Creary nent Displays on Public Property as Government Speech nent Displays on Public Property as Government from a Christmas tree); Smith v. Cnty. of Albemarle, 895 F.2d 953 (4th Cir. 1990) (holding a cr` Elewski v. Syracuse, 123 F.3d 51 (2d Cir. 1997) (upholding a cr`Elewski v. Syracuse, 123 F.3d 51 (2d Cir. in a park 300 feet from a menorah ner reading “Gloria in Excelsis Deo,” located and down the street from secular holiday symbols); ACLU of Ky. v. Wilkinson, stable, without the figurines 895 F.2d 1098 (6th Cir. 1990) (upholding a 15–foot commonly found in a cr` Compare clause functions to depoliticize religion; it thereby helps to defuse a potentially religion; it thereby helps to defuse clause functions to depoliticize explosive situation.”). Property Violates the Establishment Clause, but the Establishment Clause, Property Violates Not Sometimes It Does In this evolving jurisprudence, the Supreme Court has held that jurisprudence, the Supreme Court In this evolving 302. A cr` 303. 301. This evolution has not escaped criticism. the Court held that a cr`the Court held that public property, but sometimes it may not. public property, sometimes the government may erect a cr`sometimes the government 162 for di- respect undermines public lands on symbols of religious plays others view whereas and moral philosophies, faith traditions versity of evidence of symbols as displays of religious of public the invalidation toward religion.hostility and area of the law, a hotly contested This is of relig- constitutionality on the Court’s jurisprudence the Supreme to evolve. continues on public property ious symbols NEBRASKA LAW REVIEWA. the Display of a Cr` Sometimes [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 39 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 85 Side B 08/28/2013 10:13:22 B 08/28/2013 85 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 86 Side A 08/28/2013 10:13:22 Tex. Monthly, Inc. Second, any and concluded the 307 But see 305 test Writing for the Court, Chief Jus- for the Court, Chief Writing And third, there was no excessive And third, there Lemon eche had a secular purpose in cele- eche had a secular tax exemptions for church proper- tax exemptions 304 311 eche than from these benefits and endorsements 309 release time for public school students release time for 308 eche is a purposeful or surreptitious effort to express some eche is a purposeful or surreptitious effort First, the cr` analysis, a governmental activity or law is constitutional if the analysis, a governmental activity or law is 306 Lemon , 465 U.S. at 681–83 (“We are unable to discern a greater aid to religion (“We are unable to discern a greater , 465 U.S. at 681–83 , 465 U.S. at 679. , 465 U.S. at 671. eche is no more an advancement or endorsement of religion than the Con- at 680 (“When viewed in the proper context of the Christmas Holiday season, at 680 (“When viewed in the proper context and Sunday closing laws. and Sunday closing eche in the display depicts the historical origins of this traditional event long eche in the display depicts the historical v. Bullock, 489 U.S. 1 (1989) (plurality opinion) (holding tax exemption limited to v. Bullock, 489 U.S. 1 (1989) (plurality opinion) religious belief”). religious periodicals “effectively endorses following three criteria are satisfied: (1) it has a secular purpose; (2) the principal following three criteria are satisfied: (1) it nor inhibit religion; and (3) it or primary effect of which must neither advance with religion.must not foster an excessive entanglement Lemon v. Kurtzman, (1971). 403 U.S. 602, 612–13 deriving from inclusion of the cr` Clause. . . . [And the] display of previously held not violative of the Establishment the cr` gressional and Executive recognition of the origins of the Holiday itself as “Christ’s Mass,” or the exhibition of literally hundreds of religious paintings in governmentally supported museums.”); McGowan v. Maryland, 366 U.S. 420 (1961) (upholding Sunday Closing Laws). Legislative Chaplains to give opening prayers at sessions of the state legislature). Legislative Chaplains to give opening prayers off-campus religious exercises). public school students from classes to attend religious, educational, and charitable organizations). it is apparent that, on this record, there is insufficient evidence to establish that it is apparent that, on this record, there is the inclusion of the cr` particular religious message. . . . The kind of subtle governmental advocacy of a cr` recognized as a National Holiday.”). Lynch Lynch Id. Lynch 310 311. 306. 305. Under the 307. 309. a program allowing release of Zorach v. Clauson, 343 U.S. 306 (1952) (upholding 310. v. Tax Comm’n. of Walz N.Y.C, 397 U.S. 664 (1970) (upholding tax exemption for 308. Nebraska’s use of official Marsh v. Chambers, 463 U.S. 783 (1983) (upholding 304. advancement of, or benefit to, religion resulting from the scene was or benefit to, religion resulting from advancement of, advancement of re- and incidental” and no more an “indirect, remote in prior cases, types of conduct found permissible ligion than other prayers, such as legislative nativity scene was permissible in the context of the city’s overall permissible in the context of nativity scene was Christmas display. tice Burger applied the three-part tice Burger applied entanglement between religion and government because there was no religion and government because entanglement between between church and state evidence of ongoing, day-to-day interaction ties, to attend religious education, to attend religious brating and depicting the origins of the Christmas holiday and ac- the origins of the Christmas brating and depicting shared national heritage. knowledging our 2013] symbols, of Christmas a variety that included district shopping city’s PUBLIC SPACE ON PRIVATE MEMORIALS candy- Santa’s sleigh, reindeer pulling Santa Claus house, such as “a cutout figures representing tree, carolers, a Christmas striped poles, hundreds and a teddy bear, an elephant, as a clown, such characters 163 not a viola- banner was Greetings” lights,” and a “Season’s of colored Clause. Establishment tion of the \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 40 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 86 Side A 08/28/2013 10:13:22 A 08/28/2013 86 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 86 Side B 08/28/2013 10:13:22 320 312 The 316 eche have been But, in the 315 eche’s religious message.”) eche in this particular physi- County of Allegheny v. County of eche, now valued at $200, the tangible .”). eche on the courthouse’s grand stair- courthouse’s grand eche on the analysis in this case, yet it emphasized in this case, yet analysis serve as “no more than helpful signposts”). de minimis Hunt v. McNair, 413 U.S. 734, 741 (1973) (noting the Hunt v. McNair, 413 U.S. 734, 741 (1973) rule can be framed. The Establishment Clause like the rule can be framed. The Establishment Clause On the other hand, the menorah was part of a On the other hand, the menorah Lemon cf. Lemon per se 319 eche. of the cr` No expenditures for maintenance The Court recognized that the city could celebrate The Court recognized that the eche was not exhibited with any other secular objects eche was not exhibited 313 321 , 465 U.S. at 684 (“There is no evidence of contact with church authorities , 465 U.S. at 684 (“There is no evidence of held the display of a cr` held the The cr` By prominently displaying this religious scene in the seat of displaying this religious scene in By prominently at 600 (“Thus, by permitting the ‘display of the cr` at 600 (“Thus, by permitting the ‘display of at 614 (“The necessary result of placing a menorah next to a Christmas tree is tree occupies the central position beneath the middle (“The 45–foot at 617–18 at 678–79 (“In each [Establishment Clause] case, the inquiry calls for line (“In each [Establishment Clause] case, the inquiry at 678–79 at 579. at 597. whether the display of the (“Accordingly, our present task is to determine at 598. 314 eche and the menorah, in their respective ‘particular physical settings,’ has the eche and the menorah, in their respective , Due Process Clauses is not a precise, detailed provision in a legal code capable of Due Process Clauses is not a precise, detailed ready application.”); factors identified in concerning the content or design of the exhibit prior to or since Pawtucket’s concerning the content or design of the purchase of the cr` necessary; and since the City owns the cr` material it contributes is cal setting,’ the county sends an unmistakable message that it supports and pro- cal setting,’ the county sends an unmistakable is the cr`motes the Christian praise to God that (internal citation omitted). to create an ‘overall holiday setting’ that represents both Christmas and Chanukah—two holidays, not one.”). Building; the archway in front of the Grant Street entrance to the City–County drawing; no fixed, cr` beliefs.”). effect of endorsing or disapproving religious Id. Id. Id. Lynch Id. Id. Id. Id. Id. 317 318 Five years later, the Supreme Court in Court in later, the Supreme Five years 313. 314. Cnty. of Allegheny v. ACLU, 492 U.S. 573 (1989). 315. 320. 321. 316. 317. 318. 319. 312. Court’s ruling turned on the “particular physical setting” of each dis- on the “particular physical setting” Court’s ruling turned play. same case, the Court also held that an 18-foot Chanukah menorah also held that an 18-foot Chanukah same case, the Court local govern- 45-foot Christmas tree outside another placed next to a Clause. not violate the Establishment ment building did its “unwillingness to be confined to any single test or criterion in this test or criterion to any single to be confined its “unwillingness area.” sensitive combined display with a Christmas tree and sign saluting liberty. combined display with a Christmas case violated the Establishment Clause.case violated the was the seat The courthouse the “main,” “most and the grand staircase was of county government, public” part of the courthouse. beautiful,” and “most and it bore an from the display’s religious message, that would detract God in the High- banner praising “Glory to “indisputably religious” est.” local government, the Court observed, “No viewer could reasonably the Court observed, “No viewer local government, without the support and approval think that it occupies this location of the government.” This combined display celebrated secular aspects of both Judaism and This combined display celebrated Christianity. 164 minimal. was involved expense the public and the display, over applied the The Court NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 41 Seq: 27-AUG-13 10:54 ACLU 33655-neb_92-1 Sheet No. 86 Side B 08/28/2013 10:13:22 B 08/28/2013 86 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 87 Side A 08/28/2013 10:13:22 324 analy- Lemon McCreary Cnty. v. with 323 The monument was donated and erected The monument was donated and , a 6-foot tall monument inscribed with the , a 6-foot tall monument Rather than endorsing religion, the Court than endorsing Rather 325 322 at 592 (adopting Justice O’Connor’s approach); Lynch v. Donnelly, at 592 (adopting Justice O’Connor’s approach); , 545 U.S. at 681. The 17 monuments are “Heroes of the Alamo, Van Orden v. Perry, 545 U.S. 677 (2005) (plurality opinion) (holding the Van Orden v. Perry, 545 U.S. 677 (2005) (plurality See id. at 615 (“Because government may celebrate Christmas as a secular holiday, it at 615 (“Because government may celebrate at 616. Justice O’Connor’s “endorsement” approach, refined the Van Orden v. Perry sis. ACLU, 545 U.S. 844 (2005) (holding the Establishment Clause was violated by ACLU, 545 U.S. 844 (2005) (holding the two Kentucky courthouses). the display of the Ten Commandments in Hood’s Brigade, Confederate Soldiers, Volunteer Fireman, Terry’s Texas Rang- ers, Texas Cowboy, Spanish-American War, Texas National Guard, Ten Com- mandments, Tribute to Texas School Children, Texas Pioneer Woman, The Boy Scouts’ Statue of Liberty Replica, Pearl Harbor Veterans, Korean War Veterans, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring). Establishment Clause was not violated by a long-standing public display of the Establishment Clause was not violated by state capitol), Ten Commandments on the grounds of a follows that government may also acknowledge Chanukah as a secular holiday. follows that government may also acknowledge against Jews to allow Pittsburgh Simply put, it would be a form of discrimination while simultaneously disallowing to celebrate Christmas as a cultural tradition as a contemporaneous cultural the city’s acknowledgment of Chanukah tradition.”). Van Orden Id. Id. Compare 18–foot menorah is positioned to one side. menorah 18–foot this configuration, it is much Given the menorah in light of the tree, rather more sensible to interpret the meaning of the menorah is readily understood as than vice versa. In the shadow of the tree, the only traditional way of observing simply a recognition that Christmas is not the winter-holiday season. In these circumstances, then, the combination of the simultaneous endorsement of both the tree and the menorah communicates, not a a secular celebration of Christmas cou- Christian and Jewish faiths, but instead, as a contemporaneous alternative pled with an acknowledgment of Chanukah tradition.”). Commandments on Public Property Violates the on Public Property Violates Commandments Not Clause, but Sometimes It Does Establishment The Supreme Court has held that sometimes a city may display the has held that sometimes a city The Supreme Court In 325. 324. 323. 322. Ten Commandments was placed among seventeen monuments and Ten Commandments was placed the twenty-two acres surrounding twenty-one historical markers on the Texas State Capitol. found the display of the menorah, the Christmas tree, and the sign tree, and menorah, the Christmas display of the found the Christmas that “both of acknowledging liberty had the effect saluting which has season, the same winter-holiday are part of and Chanukah in our society.” a secular status attained Ten Commandments on public property, but sometimes it may not. on public property, but sometimes Ten Commandments On the same day, the Supreme Court issued two differing opinions on the Supreme Court issued two differing On the same day, on public of displaying the Ten Commandments the constitutionality property. in the provided the key swing vote Justice Stephen Breyer two cases. 2013] their of independent traditions, cultural as Chanukah and Christmas PUBLIC SPACE ON PRIVATE MEMORIALS significance. religious 165 B. Ten a Government Display of the Sometimes \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 42 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 87 Side A 08/28/2013 10:13:22 A 08/28/2013 87 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 87 Side B 08/28/2013 10:13:22 at 681 Id. He acknowl- In analyzing 331 326 329 He emphasized the need to “remain Stone v. Graham, 449 U.S. 39, 41 (1980) (per Stone v. Graham, 449 U.S. 39, 41 (1980) cf. 332 The plurality held the inclusion of the Ten The plurality held Justice Breyer noted that “the Establish- Justice Breyer noted 328 330 Marks v. United States, 430 U.S. 188, 193 (1977) (“When a Marks v. United States, 430 U.S. 188, 193 The plurality also recognized the religious signif- the religious also recognized The plurality See . was a “borderline case,” and in evaluating difficult was a “borderline case,” and in evaluating 327 Lynch v. Donnelly, 465 U.S. 668, 674 (1984) (“There is an unbroken Lynch v. Donnelly, 465 U.S. 668, 674 (1984) , 545 U.S. at 690; , 545 U.S. at 699 (Breyer, J., concurring). , 545 U.S. at 691–92. cf. In this fact-intensive examination, Justice Breyer found In this fact-intensive examination, 333 Van Orden at 700. at 682. at 686; test was “not useful in dealing with the sort of passive monu- with the sort “not useful in dealing test was Van Orden n.1. curiam) (holding unconstitutional a Kentucky statute requiring the posting of the curiam) (holding unconstitutional a Kentucky because of the statute’s plainly Ten Commandments in every public schoolroom religious purpose). fragmented Court decides a case and no single rationale explaining the result fragmented Court decides a case and no of the Court may be viewed as that enjoys the assent of five Justices, the holding position taken by those Members who concurred in the judgments on the narrow- est grounds.”) (internal quotations omitted). history of official acknowledgment by all three branches of government of the role history of official acknowledgment by all three 1789.”); Engel v. Vitale, 370 U.S. 421, of religion in American life from at least from the history of religion.”). 434 (1962) (“The history of man is inseparable ion in Van Orden Id. Id. Soldiers of World War I, Disabled Veterans, and Texas Peace Officers.” Soldiers of World War I, Disabled Veterans, Id. Id. Van Orden Van Orden Justice Breyer provided the fifth vote and wrote separately to con- the fifth vote and wrote separately Justice Breyer provided 326. 329. 331. 328. 332. 330. can be seen as the controlling opin- Justice Breyer’s concurrence in the judgment 333. 327. edged the Establishment Clause issue, a plurality of the Court stated the of the Court issue, a plurality Clause the Establishment faithful to the underlying purposes of the [Religion] Clauses” and faithful to the underlying purposes measured in light of those “take account of context and consequences purposes.” Commandments monument for nearly forty years among the other po- monument for nearly forty years among Commandments was not a viola- monuments on the Capitol grounds litical and legal Clause. tion of the Establishment ment Clause does not compel the government to purge from the public not compel the government to purge ment Clause does any way partakes of the religious.” sphere all that in icance of the Decalogue, as well as its “undeniable historical mean- historical as well as its “undeniable the Decalogue, icance of or promoting a “[s]imply having religious content ing,” and concluded not run afoul of the with a religious doctrine does message consistent Establishment Clause.” borderline cases, Justice Breyer saw “no test-related substitute for the borderline cases, Justice Breyer saw exercise of legal judgment.” the context and physical setting of the display suggested the state in- the context and physical setting of of the tablets’ message to tended the “nonreligious aspects ment that Texas has erected on its Capitol grounds. on its Capitol Texas has erected ment that our Instead, and by our the monument the nature of is driven both by analysis history.” Nation’s cur in the judgment that the monument was not a violation of the that the monument was not cur in the judgment Establishment Clause. 166 organization. patriotic civic and private by a in 1961 Lemon NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 43 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 87 Side B 08/28/2013 10:13:22 B 08/28/2013 87 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 88 Side A 08/28/2013 10:13:22 Fi- 336 Accord- 340 This length of 337 And after examin- 343 , issued the same day as , issued the same test because the dominant Two Kentucky counties promi- Two Kentucky counties And the physical setting of the physical setting And the 339 Lemon 335 Yet, foundational documents like the Fourteenth Yet, foundational documents like Writing for the majority, Justice David Souter noted Writing for the majority, Justice David The display was donated by a secular civic organiza- secular by a was donated display The 341 344 342 334 338 , Justice Breyer voted with a five-to-four majority to hold voted with a five-to-four majority , Justice Breyer at 853–54. at 870–71. at 872. at 867. at 872 (“No reasonable observer could swallow the claim that the Counties at 701. at 701–02. at 702. at 679. McCreary County v. ACLU of Kentucky McCreary County had cast off the [sectarian] objective so unmistakable in the earlier displays.”). Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. opinion of the Court and was joined by Justices Stevens, O’Connor, Ginsburg, and opinion of the Court and was joined by Justices Breyer). In 341. 342. 343. 344. 335. 336. 337. 338. 340. 339. (2005) (Justice Souter wrote the McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 334. nally, Justice Breyer emphasized that forty years had passed, during years had passed, that forty Breyer emphasized nally, Justice had not been challenged. which time the monument ing to the counties, the purpose of displaying the Ten Commandments ing to the counties, the purpose of to emphasize the significant role along with the other documents was of the American system of law these texts played in the foundation and government. time suggested to him that “few individuals, whatever their system of him that “few individuals, whatever time suggested to as amounting, in to have understood the monument beliefs, are likely effort to favor a detrimental way, to a government any significantly religion over nonre- sect, [or] primarily to promote particular religious ligion . . . .” ing the iterations of the displays, the Court found the displays failed ing the iterations of the displays, the secular purpose prong of the religious nature of the Ten Commandment display was religious nature of the Ten unmistakable. nently displayed large, gold-framed copies of an abridged text of the large, gold-framed copies of an abridged nently displayed in courthouse hallways.King James version of the Decalogue After were supplemented the lawsuits were filed, the Ten Commandments documents, such as the Star Span- with secular historical and legal of Independence. gled Banner’s lyrics and the Declaration monument “suggest[ed] little or nothing of the sacred” and did “not of the sacred” and or nothing “suggest[ed] little monument religious activity.” or any other itself to meditation readily lend Amendment and the original Constitution of 1787 were not included Amendment and the original Constitution in the display. “under the Establishment Clause detail is key.” “under the Establishment Clause tion and the monument itself “prominently acknowledge[d]” its donor, acknowledge[d]” “prominently the monument itself tion and aspect of from the religious the State itself distance[d] which “further message.” the Commandments’ the display of the Ten Commandments in two Kentucky courthouses Ten Commandments in two Kentucky the display of the Clause. violated the Establishment Van Orden 2013]predominate.” PUBLIC SPACE ON PRIVATE MEMORIALS 167 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 44 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 88 Side A 08/28/2013 10:13:22 A 08/28/2013 88 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 88 Side B 08/28/2013 10:13:22 Pleasant When the 347 Interestingly, the relig- Interestingly, the Summum, a religious Summum, a Government can speak The Court explained that 345 346 348 351 349 Governments exercise selection and Governments exercise selection that the Free Speech Clause has no ap- that the Free Speech Clause has 352 While the line between private speech and While the line between private 350 at 464. at 465. at 467. at 464. at 470. as government-commissioned and government-financed (“Just at 470–71 monuments speak for the government, so do privately financed and donated mon- uments that the government accepts and displays to the public on government Id. Id. Id. Id. Id. Id. Id. Government Speech, Which Is Immune from Free Is Immune Speech, Which Government Are Sometimes They Challenges, but Speech Property Speech on Public Private In rejecting Summum’s challenge, the Court explained in In rejecting Summum’s challenge, In evaluating religious displays on public property, the Supreme on public religious displays In evaluating 347. 348. 350. 351. 352. 349. 345. 460 (2009). Pleasant Grove City, Utah v. Summum, 555 U.S. 346. city refused, Summum brought suit arguing the city violated the Free brought suit arguing the city city refused, Summum Commandments monument and de- Speech Clause by accepting a Ten nying the Seven Aphorisms monument. ious organization did not pursue an Establishment Clause challenge did not pursue an Establishment ious organization on public display of another religious monument to the government’s property. pri- Pleasant Grove City, Utah, eleven In a public park in monu- including a Ten Commandments vately donated monuments, permanent display. ment, were on organization founded in 1975, sought to erect a stone monument in in 1975, sought to erect a stone organization founded the “Seven Aphorisms” of Summum. the park containing unlike speeches and other transitory expressive acts, “the placement unlike speeches and other transitory park is best viewed as a form of of a permanent monument in a public not subject to scrutiny under the government speech and is therefore Free Speech Clause.” through its own government-financed monuments, but it can also through its own government-financed monuments that a government speak through privately financed elects to accept and display. plication where the state is engaging in its own speech: “The Free plication where the state is engaging regulation of private speech; it Speech Clause restricts government does not regulate government speech.” government speech at times may be difficult to discern, in this in- government speech at times may determining it was government stance the Court had no trouble displayed on public property typi- speech: “Permanent monuments cally represent government speech.” Court has sometimes held that the displays are government speech, are government that the displays sometimes held Court has sometimes they from Free Speech challenges, but which is immune on public property.are private speech sect In 2009, a religious refusal to display challenge to a government’s brought a Free Speech on public property. its religious monument 168C. Are Public Property Displays on Religious Sometimes NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 45 Seq: 27-AUG-13 10:54 Grove City, Utah v. Summum 33655-neb_92-1 Sheet No. 88 Side B 08/28/2013 10:13:22 B 08/28/2013 88 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 89 Side A 08/28/2013 10:13:22 353 Public parks 354 The Court also dis- 356 While the forum analysis generally While the forum 357 at 485 (Souter, J., concurring) (“I have qualms, however, about ac- at 485 (Souter, J., concurring) (“I have qualms, 358 cf. id. “Speakers, no matter how long-winded, eventually come to how long-winded, eventually “Speakers, no matter The obvious truth of the matter is that if public parks were considered to The obvious truth of the matter is that if public of erecting privately donated be traditional public forums for the purpose choice but to refuse all such monuments, most parks would have little donations. of forum analysis would lead al- And where the application is obvious that forum analysis most inexorably to closing of the forum, it is out of place. 355 at 480. at 478. at 479. at 480 (distinguishing Capitol Square Review & Advisory Bd. v. Pinette, 515 at 472 (majority opinion) (“Government decisionmakers select the monuments at 472 (majority opinion) (“Government decisionmakers at 478. cepting the position that public monuments are government speech cepting the position that public monuments categorically.”). U.S. 753 (1995), where a private group, the Ku Klux Klan, requested to erect a cross for a period of sixteen days on public property that had been opened up for similar temporary displays, including a Christmas tree and a menorah). that portray what they view as appropriate for the place in question, taking into that portray what they view as appropriate history, and local culture.account such content-based factors as esthetics, The meant to convey and have the effect monuments that are accepted, therefore, are they thus constitute government of conveying a government message, and speech.”). Id. Id. Id. Id. Id. land.”); Id. Id. The Court explained that because installing permanent monu- permanent because installing explained that The Court 353. 355. 356. 357. 358. 354. are capable of accommodating a large number of public speakers a large number are capable of accommodating but these parks the essential function of the land,” “without defeating permanent monu- only a limited number of “can accommodate ments.” tinguished temporary, seasonal displays from permanent monuments: seasonal displays from permanent tinguished temporary, may be made gen- parks can accommodate and “Although some public same is rarely true temporary private displays, the erally available for for permanent monuments.” does not apply to permanent monuments on public property, the Court does not apply to permanent monuments public forum doctrine could apply: did illustrate an instance when the a monument on which all of its re- “[F]or example, if a town created other criterion) could place the sidents (or all those meeting some or some other private message [the name of a person to be honored be applied to a permanent forum doctrine might properly monument].” the end of their remarks; persons distributing leaflets and carrying remarks; persons distributing leaflets the end of their however, endure. tire and go home; monuments, signs at some point stand and interfere the use of the land on which they They monopolize other uses of public space.” permanently with ments in a public park is not analogous to delivering speeches or hold- delivering speeches not analogous to a public park is ments in forum traditional public the and demonstrations, ing marches to permanent monuments. does not apply analysis 2013] public on are displayed that monuments the permanent over control PUBLIC SPACE ON PRIVATE MEMORIALS speech. is government from these displays the message lands; thus, 169 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 46 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 89 Side A 08/28/2013 10:13:22 A 08/28/2013 89 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 89 Side B 08/28/2013 10:13:22 365 362 the Peti- 367 The cross was The cross 360 Salazar v. Buono, Salazar and then transferred the The Ninth Circuit agreed , in 366 The cross was made of four- The cross 368 In 1934, members of the Veter- members of the In 1934, 361 The Supreme Court ruled five to Because the Government did not Because the Government 359 369 363 Summum , 130 S. Ct. at 1813–14. The Supreme Court remanded the case to the lower The Supreme Court remanded 370 364 at 1071. at 1811 (2010) (plurality opinion). at 1811. at 1812. 2763A–230 (2000); Department of Defense Appropriations Act, Pub. L. No. (2000); Department of Defense Appropriations 2763A–230 §107–248, 8065(b), 116 Stat. 1519, 1551 (2002). Stat. 2230, 2278 (2002). Stat. 1054, 1100 (2003). Id. Id. Id. Id. See Salazar While the Mojave cross case was pending before the lower courts, cross case was pending before the While the Mojave During the term following term following the During permanent in 2004, affirmed the district court’s The Ninth Circuit, 366. §Pub. L. No. 107–117, Department of Defense Appropriations Act, 8137(a), 115 367. § Department of Defense Appropriations Act, Pub. L. No. 108–87, 8121(a)-(e), 117 368. Buono v. Norton, 364 F. Supp. 2d 1175 (C.D. Cal. 2005). 369. Buono v. Kempthorne, 502 F.3d 1069 (9th Cir. 2007). 370. 365. § 106–554, Consolidated Appropriations Act, Pub. L. No. 133, 114 Stat. 2763, 361. 362. 363. (9th Cir. 2004). Buono v. Norton, 371 F.3d 543, 548–549 364. 359. Salazar v. Buono, 130 S. Ct. 1803 (2010). 360. Court again faced the issue of displaying a religious symbol donated a religious symbol of displaying faced the issue Court again land. entity on public by a private tioner challenged Congress’s land transfer as a violation of the district tioner challenged Congress’s land court’s original permanent injunction. located on federal land in the Mojave National Preserve on a granite Preserve on the Mojave National federal land in located on Rock. known as Sunrise outcropping one acre of land on which the Mojave cross sits to the Veterans of For- one acre of land on which the Mojave that if the cross ceased to be a war eign Wars with the requirement to the federal government. memorial, the land would revert the land transfer was a violation of the permanent injunction and af- the land transfer was a violation firmed the district court’s order. inch diameter white metal pipes and was less than eight feet tall. metal pipes and was less than inch diameter white ans of Foreign Wars placed a Latin cross in the Mojave Desert to in the Mojave a Latin cross Wars placed ans of Foreign War I. who died in World soldiers honor American four that the land transfer did not violate the district court’s original four that the land transfer did not injunction. appeal the Ninth Circuit’s conclusion that the cross violated the Es- Circuit’s conclusion that the cross appeal the Ninth and unreviewable that judgment became final tablishment Clause, a petition for of the deadline for filing upon the expiration certiorari. Congress, in a series of legislative enactments between 2001 and Congress, in a series of legislative funds to remove the cross, 2004, twice prohibited the use of federal injunction on the grounds the display violated the Establishment grounds the display violated injunction on the of govern- Mojave cross conveyed an impression Clause because the of religion. mental endorsement designated the cross a national memorial, 170 NEBRASKA LAW REVIEW over the years. or repaired a number of times It had been replaced [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 47 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 89 Side B 08/28/2013 10:13:22 B 08/28/2013 89 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 90 Side A 08/28/2013 10:13:22 at 376 Id. noted cert. de- On public Salazar 375 amended and reh’g The private or- The crosses dis- opinion on August 18, 373 decision leave un- decision 374 opinion, awaiting the Su- Duncan was denied on December 20, 2010. , 616 F.3d at 1152 n.5. Rehearing en 372 Duncan opinion on April 28, 2010, and the Tenth Cir- opinion, the Tenth Circuit Court of opinion, the Tenth . Salazar v. Buono Salazar Salazar Salazar Salazar 371 American Atheists, Inc. v. Duncan 377 , 637 F.3d at 1101. American Atheists, Inc. v. Davenport , 616 F.3d at 1151. , Am. Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir. 2010), , Am. Atheists, Inc. v. Davenport, 637 F.3d , Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 12 (2011)., Utah Highway Patrol Ass’n v. Am. Atheists, The at 1151. at 1150. at 1151, 1151 n.3. at 1818 (plurality opinion). is The plurality also explained that “a Latin cross 1820. 2010. its The Tenth Circuit delayed issuing preme Court’s decision in banc in cuit panel issued its nied Supreme Court issued the denied not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor contributions, and patient striving and respect those whose heroic acts, noble this Nation and its people.” help secure an honored place in history for Davenport Duncan Id. Id. Id. Id. On the heels of the On the heels of The narrow grounds of the grounds of the The narrow 373. Cir. 2010), Am. Atheists, Inc. v. Duncan, 616 F.3d 1145 (10th 374. 375. 377. 376. 371. (2010). Salazar v. Buono, 130 S. Ct. 1803, 1819–21 372. that the government need not eradicate all religious symbols in the all religious symbols not eradicate government need that the of religion: “A cross governmental endorsement public realm to avoid the place where highway marking, for instance, by the side of a public of govern- need not be taken as a statement a state trooper perished sectarian beliefs.” mental support for land, the memorial crosses were privately maintained and owned. land, the memorial crosses were ganization that erected the memorial crosses explained that a cross the memorial crosses explained ganization that erected “only a white cross the officer because was selected to memorialize of death, honor, convey the simultaneous messages could effectively and safety.” remembrance, gratitude, sacrifice, played the honored trooper’s name, rank, and badge number, the offi- played the honored trooper’s name, the deceased trooper’s picture, and cial state trooper “beehive” symbol, information. a plaque with the trooper’s biographical resolved many of the questions that are raised by the presence of a raised by the presence that are many of the questions resolved land. cross on public memorial in In dicta, the plurality Appeals ruled that 12-foot memorial crosses erected on public prop- 12-foot memorial crosses erected Appeals ruled that highway patrol’s patrol troopers, bearing the erty for fallen highway the Establishment Clause. official symbol, violated The state of Utah expressly stated it neither officially approved nor The state of Utah expressly stated but it nevertheless gave the disapproved of the memorial markers, to erect thirteen markers on public private organization permission of which were erected in front of a property throughout the state, two highway patrol office. 2013] “illicit an constituted transfer the land or not whether to decide court PUBLIC SPACE ON PRIVATE MEMORIALS purpose.” governmental 171 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 48 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 90 Side A 08/28/2013 10:13:22 A 08/28/2013 90 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 90 Side B 08/28/2013 10:13:22 Addition- 385 380 Pleasant Grove City, Pleasant The court also distin- The court distinguished at 1157. 384 Id. 383 The size and location of the 386 Yet the court found the memorials Yet the court found The Tenth Circuit thus determined Circuit thus The Tenth 382 379 at 1161 (“We agree that a reasonable observer would test in light of Justice O’Connor’s endorsement test, test in light of Justice O’Connor’s endorsement and could “discern a plausible secular pur- and could “discern 381 Lemon test see also id. language, the circuit court was persuaded that was persuaded the circuit court language, ”) (citations omitted). The Tenth Circuit interpreted the purpose and Relying on the Supreme Court’s on the Supreme Relying Lemon 387 378 Lemon at 1157. at 1160. at 1161–62. at 1162. at 1150. v. Summum, 555 U.S. 460, 470, at 1154 (quoting Pleasant Grove City, Utah test has been much maligned, “the at 1156 (acknowledging that while the . at 1159 (quoting Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017, 1022 which makes the “inquiry very case-specific.” effect prongs of the (10th Cir. 2008)); 480 (2009)). remains the tripartite test set out touchstone for Establishment Clause analysis in Id. Id. Id. Id. Id. Id Id. Id. Id. Id. Evaluating the Establishment Clause challenge, the Tenth Circuit Clause challenge, the Evaluating the Establishment The Tenth Circuit rejected the memorial maker’s Free Speech ar- Speech Free maker’s memorial the rejected Tenth Circuit The 382. 383. 384. 385. 386. 379. 380. 387. 378. 381. ally, the court noted that these 12-foot memorial crosses were ten ally, the court noted that these memorials, which were often be- times larger than typical roadside tall. tween twelve and sixteen inches guished a permissible Ten Commandments display, when part of a guished a permissible Ten Commandments memorial crosses here because the historical presentation, from the the state highway patrol insignia crosses “stand alone, adorned with who died there.” and some information about the trooper Christmas displays from the memorial crosses because Christmas from the memorial crosses Christmas displays while “there is no embraced as a secular holiday” “has been widely has been widely embraced by non- evidence in this case that the cross death.” Christians as a secular symbol of crosses bolstered the court’s conclusion that a reasonable observer crosses bolstered the court’s conclusion endorsing Christianity through the would believe that the state was a symbol of the Chris- use of the Latin cross, which “is unequivocally tian faith.” had the impermissible effect of conveying to a reasonable observer effect of conveying to a reasonable had the impermissible endorsing Christianity. that the state was that these memorial crosses were not private speech on public land, crosses were not private speech that these memorial content of which is speech, “the scope and but rather were government alia, by the Establishment Clause.” restrained, inter pose” in erecting the memorial crosses to commemorate fallen troopers the memorial crosses to commemorate pose” in erecting safety. and to promote highway these were “privately financed and donated monuments that the gov- monuments that and donated “privately financed these were land,” public on government to the accept[ed] and display[ed] ernment anal- Clause’s] forum [the Free Speech “as a general matter, for which does not apply.” ysis simply applied the guments. 172 NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 49 Seq: 27-AUG-13 10:54 Utah v. Summum Utah v. 33655-neb_92-1 Sheet No. 90 Side B 08/28/2013 10:13:22 B 08/28/2013 90 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 91 Side A 08/28/2013 10:13:22 , 132 secu- The 392 394 cert. denied The brief con- 393 symbol of death that signifies or The Court declined the op- The Court at 1162 (“[T]he mere fact that the 389 id. Mount Soledad Mem’l Ass’n v. Trunk, .”); In his dissent from the denial of from the In his dissent Christian see also 390 Christian 391 symbol used in roadside memorials does not mean it is a symbol used in roadside memorials does not ROADSIDE CROSS MEMORIAL symbol of death; it is a common The private organization that erected the memorial that erected organization The private generic 388 symbol.”). at 13 (Thomas, J., dissenting); at *9. at *10. S. Ct. 12 (2011). 2011). memorializes the death of a cross is a 132 S. Ct. 2535, 2535 (2012) (Alito, J., respecting denial of certiorari) (“This 132 S. Ct. 2535, 2535 (2012) (Alito, J., is undoubtedly in need of clarity Court’s Establishment Clause jurisprudence . . . .”). Am. Atheists, 132 S. Ct. 12 (No. 10-1297), 2011 WL 2066580, at *9–*10. lar Id. Id. Id. Id. recognize these memorial crosses as symbols of death. However, we do not agree recognize these memorial crosses as symbols content because a memorial cross is that this nullifies their religious sectarian not a Memorial makers are avoiding readily available alternative ave- Memorial makers are avoiding readily In light of this “jurisprudence in shambles,” state and local govern- in shambles,” state and In light of this “jurisprudence The Tenth Circuit split five to four, denying rehearing of the case rehearing four, denying five to split Tenth Circuit The VI. A CONSTITUTIONALLY PERMISSIBLE CONSIDERING 389. (Nos. 10-1276 & 10-1297) (Oct. 31, Am. Atheists, Inc. v. Davenport, 132 S. Ct. 12 390. 392. Brief for the States of Louisiana et al. as Amici Curiae in Support of Petitioners, 393. 388. (10th Cir. 2010), Am. Atheists, Inc. v. Davenport, 637 F.3d 1095 394. 391. states also sought guidance on whether an official, state-sponsored guidance on whether an official, states also sought by a private is augmented with religious symbols memorial sign that afoul of the Establishment Clause. person would run cluded with the following plea: “Some states may decide to exclude cluded with the following plea: “Some while others may permit it religious imagery from official memorials, policy should not be influenced by in some sensible way. But a state’s Clause requires.” confusion about what the Establishment portunity to rule on whether a cross on the public roadway to com- the public roadway a cross on to rule on whether portunity is an fallen state trooper place of a the “last alive” memorate Clause violation. Establishment the writ of certiorari, Justice Thomas said, “Today the Court rejects an “Today the Court Thomas said, of certiorari, Justice the writ Clause jurispru- clarity to an Establishment opportunity to provide dence in shambles.” crosses appealed to the Supreme Court. to the Supreme crosses appealed ments are left with little guidance in charting a course for adopting little guidance in charting a ments are left with memorials.policies on roadside Circuit In the appeal of the Tenth Supreme Court to filed an amicus brief asking the case, twenty states states may offer for certiorari and clarify whether accept the petition imagery. that include religious memorials and monuments nues for ventilating their expression. By avoiding or supplementing are communicating that the the cemetery memorial, these bereaved en banc. 2013] PUBLIC SPACE ON PRIVATE MEMORIALS 173 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 50 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 91 Side A 08/28/2013 10:13:22 A 08/28/2013 91 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 91 Side B 08/28/2013 10:13:22 396 , Sons of Confederate , it is unclear who the see, e.g. Court recognized that “it frequently is Court recognized that “it frequently note 15, at 571 (arguing for an “effective control” test to note 15, at 571 (arguing for an “effective control” Summum supra Haupt, The degree of editorial control and ultimate responsibil- The degree of editorial control and see Pleasant Grove City, Utah v. Summum 398 To assess Establishment Clause concerns created by road- Clause concerns created To assess Establishment 397 at 476. at 477. controlled’ the messages sent by the at 473 (“Rather, the City has ‘effectively 395 determine legal responsibility when the government and private individuals determine legal responsibility when the jointly engage in speech). The circuit courts of appeal have refined the test and between private speech and gov- created a four-factor analysis for distinguishing ernment speech: (1) the central “purpose” of the program in which the speech in question occurs; (2) the degree of “editorial control” exercised by the government or private entities over the content of the speech; (3) the identity of the “literal speaker;” and (4) whether the government or the private entity bears the “ulti- mate responsibility” for the content of the speech; monuments in the Park.”); Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 560 monuments in the Park.”); Johanns v. Livestock by the Federal Government (2005) (“The message . . . is effectively controlled itself.”); Id. Id. Id. concurring). In light of the post-modern sensibilities evinced by the Supreme sensibilities evinced In light of the post-modern In evaluating whether speech is private or governmental, the Su- In evaluating whether speech is private If policymakers either ignore or expressly permit roadside crosses, permit roadside or expressly either ignore If policymakers 397. 398. 395. 460, 486 (2009) (Souter, J., Pleasant Grove City, Utah v. Summum, 555 U.S. 396. speaker is or what the message is when a roadside cross is erected on speaker is or what the message is public property. The not possible to identify a single ‘message’ that is conveyed by an object not possible to identify a single ‘message’ thoughts or sentiments expressed or structure, and consequently, the and displays such an object may by a government entity that accepts either its creator or its donor.” be quite different from those of Court in side crosses on public roadways, it is important to determine both the roadways, it is important to side crosses on public message. speaker and the preme Court has focused on the degree of editorial control over the preme Court has focused on the message. Thus, the message of the original creator of the display may differ Thus, the message of the original expressly or tacitly accepts the from the message of the entity that display. it remains unresolved whether states open themselves up to an Estab- themselves up to states open unresolved whether it remains crosses to challenge by tacitly or expressly permitting lishment Clause lands.remain on public to appear to Governments must be careful not memorial cross on by adopting the message of the endorse religion public land.a government Souter observed, “[W]henever As Justice character, the spec- [that] has some religious maintains a monument it to take care Establishment Clause will behoove ter of violating the of religion, in the of a flatout establishment to avoid the appearance or symbol- adoption of the tenets expressed sense of the government’s ized.” 174 their expression. for avenue inadequate is an cemetery The growing safety, aes- raises traffic expression, which of this mode of popularity to de- forces policymakers concerns, religious neutrality thetics, and this expression. to regulate cide whether NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 51 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 91 Side B 08/28/2013 10:13:22 B 08/28/2013 91 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 92 Side A 08/28/2013 10:13:22 And 400 Summum : “[T]he monu- The 402 An official state- An official , concluded the “re- 399 Summum Van Orden 403 The notion that a religious aspect or a The notion that a religious aspect 401 concluded, after examining the iterations of the concluded, after examining test because the dominant religious nature of the dis- test because the dominant religious , 555 U.S. at 474. In light of this multiplicity of meaning, it is unclear if McCreary ACLU of Tenn. v. Bredesen, 441 F.3d 370, 376–77 (6th Cir. 2006) (finding the (6th Cir. 2006) 376–77 ACLU of Tenn. v. Bredesen, 441 F.3d 370, at 477. Lemon a display’s meaning is entirely subjective. However, it is unlikely the Supreme Court’s jurisprudence will go this route. “Choose Life” specialty license plate was government speech and not private “Choose Life” specialty license plate was the design and authority over every speech because the state had veto power over word used; it was thus the state’s “own message”). Summum Id. Veterans, Inc. v. Comm’r, Va. Dep’t of Motor Vehicles, 288 F.3d 610, 618–19 (4th Vehicles, 288 F.3d 610, 618–19 Veterans, Inc. v. Comm’r, Va. Dep’t of Motor 257 F.3d 1132, 1141 (10th Cir. Cir. 2002); Wells v. City and Cnty. of Denver, of the Univ. of Mo., 203 F.3d 2001); Knights of the Ku Klux Klan v. Curators (8th Cir. 2000). 1085, 1093–94 Cf. In addition to the uncertainty about the speaker, there is uncer- uncertainty about the speaker, In addition to the Roadside memorials are multivocal. They can simultaneously com- 403. 400. (2005) (Breyer, J., concurring). Van Orden v. Perry, 545 U.S. 677, 701–02 401. McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 872 (2005). 402. 399. the Court in ment may be intended to be interpreted, and may in fact be inter- ment may be intended to be interpreted, variety of ways.” preted by different observers, in a tainty about the message communicated by roadside crosses on public message communicated by roadside tainty about the property. Establishment Clause jurisprudence The Supreme Court’s meanings and a display can have multiple contemplates that Breyer, concurring in messages. Justice sponsored marker that has a single, uniform message, such as Flor- message, such a single, uniform marker that has sponsored private rather than pure speech Safely,” is government ida’s “Drive speech. Es- policymakers may desire to avoid But, as outlined below, public forum where concerns by creating a limited tablishment Clause shifts to a private over the content of the speech editorial control speaker. the Decalogue display did not predominate. ligious aspect” of religious nature can predominate implies there are other aspects or religious nature can predominate yet still exist.messages that do not predominate, This suggests a can exist within a display.multiplicity of meanings or messages This reflected in multiplicity of meaning was also Decalogue displays, that the displays failed the secular purpose prong that the displays failed the secular Decalogue displays, of the plays was unmistakable. municate more than one message, on behalf of more than one speaker. municate more than one message, Court also suggested a certain indefiniteness of meaning because the Court also suggested a certain indefiniteness static: “The message that a govern- message of a display may not be a monument to remain on its prop- ment entity conveys by allowing the subsequent addition of other erty may also be altered by monuments in the same vicinity.” 2013] policy of the particular contours on the depend will the speech ity for PUBLIC SPACE ON PRIVATE MEMORIALS by a government.adopted a and maintains a government erects When likely to a court is most roadside memorial, state-approved uniform, government speech. the memorial is conclude 175 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 52 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 92 Side A 08/28/2013 10:13:22 A 08/28/2013 92 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 92 Side B 08/28/2013 10:13:22 R 407 available at Safety Concerns Clash For example, a single, For example, 404 ., Sept. 23, 2004, at 1A, RIB Chris Hamilton, T 405 EWS note 49, at 669. N Traffic safety and community aesthet- see also supra ULUTH 406 , D at 476–77. with Roadside Memorials need to balance the safety and maintenance considerations with the needs of need to balance the safety and maintenance people’s desire to memorialise [sic] loved ones to grieve for their losses and the certain public figures.” Tay, 2004 WLNR 19253579 (“[C]iting safety concerns for drivers and the people who tend to the memorials . . . the Minnesota Department of Transportation quietly established a policy to remove hundreds of roadside memorials across the state.”). Id. ally have had great latitude under their police powers to legislate as to the pro- ally have had great latitude under their police and quiet of all persons.”); Berman v. tection of the lives, limbs, health, comfort, of the public welfare is broad and Parker, 348 U.S. 26, 33 (1954) (“The concept as well as physical, aesthetic as inclusive. The values it represents are spiritual the legislature to determine that the well as monetary. It is within the power of spacious as well as clean, well- community should be beautiful as well as healthy, Nashville, C. & St. L. Ry. v. Walters, balanced as well as carefully patrolled.”); embraces regulations designed to 294 U.S. 405, 429 (1935) (“[T]he police power welfare, and not merely those in the promote public convenience or the general Manigault v. Springs, 199 U.S. interest of public health, safety, and morals.”); an exercise of the sovereign right of 473, 480 (1905) (noting the police power “is morals, comfort, and general welfare the government to protect the lives, health, of the people”). exercise its police powers to (“It is well settled that the state may legitimately Louis County, 930 F.2d 591, 596 (8th advance esthetic values.”); ACORN v. St. for [roadway] accidents to justify Cir. 1991) (“The government need not wait 619 F.2d 683, 688 n.4 (7th Cir. safety regulations.”); U.S. Labor Party v. Oremus, solicitation and noting the State need 1980) (upholding ban on in-the-roadway not wait for personal injuries); In responding to the complex roadside memorial phenomenon, the complex roadside memorial In responding to Policymakers have broad discretion to regulate for the health, wel- broad discretion to regulate for Policymakers have 405. because transportation agencies “Having the right memorial policy is significant 406. 724, 756 (1985) (“States tradition- Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 407. Vincent, 466 U.S. 789, 805 (1984) Members of the City Council v. Taxpayers for 404. festooned memorial along a roadway sends a different message than a a different message a roadway sends memorial along festooned along a highway. stretched mass of memorials in- The aggregation of of the the hazardousness a message about memorials sends dividual memorial cannot. in a way a single highway toward roadside greatly both in general attitude policymakers vary the particular poli- as in the details and aspects of memorials, as well cies. of the com- of the bereaved with the needs To balance the needs ban the have three options: (1) completely munity, policymakers or (3) craft a state and ignore the memorials; activity; (2) do nothing while not to balance the competing interests, program that strives First Amendment. transgressing the ics are squarely within the purview of states to regulate. ics are squarely within the purview fare, and safety of citizens. A. on All Roadside Memorials Total Ban 176 be difficult, sometimes can message single, predominant a Identifying change over time. messages may and such NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 53 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 92 Side B 08/28/2013 10:13:22 B 08/28/2013 92 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 93 Side A 08/28/2013 10:13:22 413 But restrictions Such regulations 411 412 409 And a speaker is not entitled to her And a speaker is 410 When faced with a state regulating because with a state regulating When faced 408 414 Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1024 (9th Cir. 2008); Menotti v. City of Seattle, 409 F.3d 1113, 1138 (9th Cir. 2005). See twin goals “traffic safety and the appearance of the city” are “substantial govern- twin goals “traffic safety and the appearance mental goals”). on the time, place, or manner the government may impose reasonable restrictions are justified without reference to of protected speech, provided the restrictions they are narrowly tailored to serve a the content of the regulated speech, that they leave open ample alternative significant governmental interest, and that (internal quotation omitted). channels for communication of the information.”) v. NLRB, 540 F.3d 957, 969 (9th Cir. Carpenters & Joiners of Am. Local 586 2008). It is an open question whether a court will recognize the dual mes- It is an open question whether a court Yet memorial makers have a cognizable First Amendment argu- First Amendment a cognizable makers have Yet memorial 408. (noting the (1981) 490, 507–08 Metromedia, Inc. v. City of San Diego, 453 U.S. 409. 791 (1989) (“[E]ven in a public forum Ward v. Rock Against Racism, 491 U.S. 781, 410. Inc., 452 U.S. 640, 647 (1981). Heffron v. Int’l Soc’y for Krishna Consciousness, 411. (6th Cir. 2011); United Bhd. of Saieg v. City of Dearborn, 641 F.3d 727, 740 412. City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994). 413. Galvin v. Hay, 374 F.3d 739, 756 (9th Cir. 2004). 414. that completely foreclose “a common means of speaking” are suspect “a common means of speaking” that completely foreclose suppress too much speech.” because they “can can “hamper speakers from conveying what they mean to convey.” from conveying what they mean can “hamper speakers “preferred” or “best” means of communication. “preferred” or “best” of the safety hazards posed by roadside memorials, courts are likely to courts are by roadside memorials, hazards posed of the safety restriction as a reasonable memorials ban on all roadside view a total interests. significant governmental that serves sage of the memorial. If a court recognizes roadside memorials as a to other drivers, as well as “common means” of sending a caution deceased, then memorial makers’ maintaining a connection with the the warning may lead a lack of alternative avenues to communicate court to invalidate a total ban. On the other hand, if a court concludes ment that they lack alternative avenues to communicate the message alternative avenues to communicate ment that they lack if it is removed from the roadside.of the memorial Supreme The does not guarantee that “the First Amendment Court has emphasized places or in any one’s views at all times and the right to communicate be desired.” manner that may And the message that memorial makers mean to convey is complex that memorial makers mean to And the message and often idiosyncratic. bipartite Yet scholars observe the common to other driv- of the deceased and warning message of remembrance ers. bereaved have an alternative channel to communicate re- The spect for the deceased in a cemetery. However, by eliminating the place along the roadside, a signifi- memorial cross from the “last alive” lost.cant component of the message is The cautionary tale to other with the location of the expressive drivers is inextricably intertwined activity. 2013] roads safety of the to protect interest compelling have a Policymakers PUBLIC SPACE ON PRIVATE MEMORIALS of citizens. and welfare 177 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 54 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 93 Side A 08/28/2013 10:13:22 A 08/28/2013 93 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 93 Side B 08/28/2013 10:13:22 R R 416 This laissez- 417 was despite the gov- Duncan In practice, only a handful of In practice, only 415 This holding in note 2, at 237 (“In some jurisdictions authorities will not note 2, at 237 (“In some jurisdictions authorities 418 supra A government’s failure to enforce general laws that A government’s failure to enforce note 9, at 161 (“After receiving a complaint, 91% of the respondents note 9, at 161 (“After receiving a complaint, 419 notes 248–52 and accompanying text. notes 248–52 supra Johnson v. City and Cnty. of Phila., 665 F.3d 486, 490 (3d Cir. 2011) (uphold- Johnson v. City and Cnty. of Phila., 665 F.3d ing city’s ordinance prohibiting the posting of signs on utility poles, streetlights, ing city’s ordinance prohibiting the posting the content-neutral ordinance was nar- and trees in a public right-of-way because in safety and aesthetics, and placing rowly tailored to serve the city’s interest alternative channel to the banned signs on private property provided a sufficient Mo. Police Dep’t, 375 F.3d 785, 790- signs on public property); Frye v. Kan. City rights of pro-life protestors were 92 (8th Cir. 2004) (concluding the Free Speech of the roadside signs when the not insulated from restrictions on the display of passing motorists); Foti v. City signs jeopardize the health, welfare, and safety 1998) (finding city ordinance restrict- of Menlo Park, 146 F.3d 629, 642 (9th Cir. permissible in light of the City’s sub- ing size and number of picket signs “was devote greater attention to driving stantial interest in requiring drivers to conditions and the road signs”). See supra are received.”); Dickinson & Hoff- apply local ordinances until specific complaints mann, said the DOT removes the memorial in response to the complaint and 9% leave the memorial as is.”). Id. See Pleasant Grove City v. Summum, 555 U.S. 460, 470, 480 (2009)). Some policymakers choose to turn a blind eye to roadside memorial choose to turn a blind eye to roadside Some policymakers If a court determines that a cemetery or other designated memorial a cemetery or other determines that If a court 417. Collins & Rhine, 416. 418. Am. Atheists, Inc. v. Duncan, 616 F.3d 1145, 1154 (10th Cir. 2010) (quoting 419. 415. faire approach may raise Establishment Clause concerns because an raise Establishment Clause concerns faire approach may that is nevertheless allowed to re- unauthorized, unattended cross the specter of endorsing Christian- main on public property may raise ity. the case of the fallen highway patrol officers, the Tenth Circuit In maintained by private individuals ruled 12-foot crosses erected and the government allowed them to re- were government speech because main on public land. ernment’s express statement that it neither approved nor disapproved ernment’s express statement that of the message. states have elected to promulgate a total ban.states have elected those states, And in a grieving family’s ban is lax because removing enforcement of the fiasco. can quickly become a public relations roadside memorial prohibit unauthorized signs and items along the roadways may raise prohibit unauthorized signs and items activity, unless and until someone in the community complains or the until someone in the community activity, unless and the memorial is a traffic hazard. DOT determines site is an adequate alternative channel to commemorate the deceased, commemorate the channel to adequate alternative site is an likely be upheld in to ban all roadside memorials will the policy choice Speech challenge. the face of a Free B. Memorials Approach Toward Roadside Do-Nothing 178 com- is to memorial roadside of the message the predominant that on the a total ban a court may uphold the deceased, memorate the de- avenue to keep ample alternative the cemetery is an grounds memory alive. ceased’s NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 55 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 93 Side B 08/28/2013 10:13:22 B 08/28/2013 93 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 94 Side A 08/28/2013 10:13:22 R Kirk A. Policy- Moreo- 421 420 See also Policymakers may decide a bet- 422 . 33, 47 (1997) (“[C]onstitutions are merely manifes- . 33, 47 (1997) (“[C]onstitutions are merely EV note 2, at 241. U. L. R supra EGENT 423 Reaffirming the Natural Law Jurisprudence of Justice Clarence Reaffirming the Natural Law Jurisprudence notes 197–200 and accompanying text. and notes 197–200 , 9 R City of Chi. v. Sturges, 222 U.S. 313, 322 (1911) (“The obligation of the gov- City of Chi. v. Sturges, 222 U.S. 313, 322 Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 675 (1998) (finding Kennedy, tations of the social contract . . . .”). candidate debate was a limited public forum for private speech because “[t]he ernment to protect life, liberty and property against the conduct of the indiffer- ernment to protect life, liberty and property be regarded as lying at the very ent, the careless and the evil-minded may v. Bull, 3 U.S. 386, 388 (1798) (“The foundation of the social compact.”); Calder . . to establish justice, to promote the people . . . erected their Constitutions . liberty; and to protect their persons general welfare, to secure the blessings of and property from violence. The purposes for which men enter into society will compact . . . .”). determine the nature and terms of the social Thomas See supra Cf. See State policymakers who seek to afford the bereaved an alternate State policymakers who seek to afford Many state policymakers have recognized that turning a blind eye have recognized that turning Many state policymakers 421. 422. Collins & Rhine, 423. 420. ver, leaving roadside memorials unregulated and unenforced disfavors and unenforced unregulated roadside memorials ver, leaving the law. those who flout while favoring abide by the law those who makers are coming to recognize that banning roadside memorials to recognize that banning roadside makers are coming unpopular and ineffective—whilewholesale is politically nonetheless constitutionally permissible. inclination The bereaved have shown an the legality of er- memorials without regard to to construct roadside ecting such memorials. And states that have removed unlawful road- of public condemnation.side memorials have heard an outcry As efforts become a public rela- scholars have observed, “[E]nforcement builders choose to take their tions disaster, especially if memorial plight to the public via the media.” ter course is to channel the expression into an avenue that minimizes ter course is to channel the expression the risk of creating the appearance both the risks to traffic safety and of government endorsement of religion. state-sponsored memorial program avenue of expression could craft a while the government retains some that gives the bereaved a voice, to help minimize the safety risks measure of control over the markers and aesthetic concerns. A state-sponsored roadside memorial pro- forum for the bereaved to construct gram could afford a limited public their message. to the roadside cross phenomenon is not a long-term policy option. phenomenon is not a long-term to the roadside cross collide. bereaved and the community eventually The interests of the A mark- of states have started offering state-sponsored growing number one. the “last alive” place of a loved ers to commemorate 2013] problem. Clause an Establishment of to adopt some form And failing PUBLIC SPACE ON PRIVATE MEMORIALS inter- the competing to balance abdicates a responsibility regulations ests. duty has a suggest that government theory would Social contract of its citizen. interests competing constitutional to balance 179 C. Roadside Memorial Program State-Sponsored \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 56 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 94 Side A 08/28/2013 10:13:22 A 08/28/2013 94 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 94 Side B 08/28/2013 10:13:22 As See Pinette 425 Capitol Square See Policymakers could also allow Policymakers could concurrence, not all private re- 424 Summum , 515 U.S. at 763. Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Cnty. of Allegheny v. ACLU, 492 U.S. 573, 612 (1989). Pleasant Grove City v. Summum, 555 U.S. 460, 471 (2009).Pleasant Grove City v. Summum, 555 U.S. The Supreme Court with religious messages, like holiday has recognized that private individuals carolers or temporary religious displays, on public lands do not evince to the rea- sonable observer government endorsement of the message. Capitol Square very purpose of the debate was to allow the candidates to express their views very purpose of the debate was to allow with minimal intrusion by the broadcaster”). A limited public forum is function- ally equivalent to a nonpublic forum. Gentala v. City of Tuscan, 213 F. 3d 1055, between a limited public forum and a 1062 n.4 (9th Cir. 2000) (“[T]he distinction without an analytic difference.”); War- nonpublic forum is a semantic distinction (4th Cir. 1999) (en banc) (noting the ren v. Fairfax Cnty., 196 F.3d 186, 194 n.8 from a nonpublic forum”). “limited public forum [is] analytically indistinct like stone monuments, do. way that more permanent forms of expression, A designated public forum for roadside death memorials could fore- A designated public forum for roadside 1. Forum Limited Public A and public forum vary of the limited and specifics The contours 425. 424. reflect on the government the same Transient speech on public property does not Justice Souter noted in his renewable periods after payment of a small processing fee. after payment of a small processing renewable periods After the the memorial. expired, the next of kin could be given allotted time has about government speech endors- stall Establishment Clause concerns ing a religious message. A court is likely to find that by allowing the the message on a state-approved bereaved to select and customize government speech.sign, it is private speech rather than The ligious symbols on public property raise Establishment Clause con- ligious symbols on public property in which government maintenance cerns: “[T]here are circumstances could be tailored to the needs of the particular jurisdiction. of the particular tailored to the needs could be For exam- the DOT erected where uniform in size and signs could be ple, state control delegate editorial but the DOT could it to be safe, determines in the to have a voice the message who can customize to the bereaved memorial. could permit a shadowbox- Alternatively, policymakers mowing operations a raised platform or pole so type structure on would not be disturbed. would allow The shadowbox-type structure the ground. objects to be secured off of for three-dimensional The structure need to ensure that the appropriate state program would as safely possible. erected as close to the crash site would be promptly could be per- sign or a shadowbox-type structure A two-dimensional for a limited amount of time.mitted on the site could Policymakers six months, length of time, be it three months, decide the appropriate or twenty years. one year, five years, Court concluded that private religious speech in a traditional public Court concluded that private religious endorsement of religion because the forum did not reflect government the speech occurred on prop- government did not sponsor the speech, and the same application pro- erty specifically held open to the public, wishing to use the forum. cess was required of all groups 180 NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 57 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 94 Side B 08/28/2013 10:13:22 B 08/28/2013 94 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 95 Side A 08/28/2013 10:13:22 429 426 see also Thus, 427 With an ap- 431 428 And any remaining , 515 U.S. at 847–48 (holding a uni- , 515 U.S. at 847–48 430 at 784 (Souter, J., concurring) (“I vote to id. Rosenberger Court seemed mindful of the possibility that monu- the possibility that mindful of Court seemed , 515 U.S. at 823–24, 841 (discussing the disclaimers printed in the , 515 U.S. at 823–24, , 555 U.S. at 487 (Souter, J., concurring). Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 303 n.13 (2000) (“[W]e Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. Summum at 480. versity could not deny subsidies to religious student publications when it gave versity could not deny subsidies to religious subsidies to secular student publications). (O’Connor, J., concurring) (“I would add the presence of a sign disclaiming gov- (O’Connor, J., concurring) (“I would add the the Klan cross, which would make the ernment sponsorship or endorsement on State’s role clear to the community.”); affirm in large part because of the possibility of affixing a sign to the cross ade- quately disclaiming any government sponsorship or endorsement of it.”); student publication and noting “the government has not fostered or encouraged any mistaken impression that the student newspapers speak for the University”). have never held the mere creation of a public forum shields the government en- have never held the mere creation of a public Clause.”). tity from scrutiny under the Establishment Sch. Dist., 508 U.S. 384, 395–96 Lamb’s Chapel v. Ctr. Moriches Union Free groups after-hours access to school (1993) (holding a state could not allow secular access); Widmar v. Vincent, 454 premises but deny religious groups the same university’s forum was already availa- U.S. 263, 277 (1981) (holding that since a not be excluded). ble to other groups, religious groups could access to school facilities that were that a school could not deny a Christian club available to other student clubs); Rosenberger Summum Id. But see Moreover, the Supreme Court has reiterated that once individuals Court has reiterated that Moreover, the Supreme The 431. 515 U.S. 753, 776 (1995) Capitol Square Review & Advisory Bd. v. Pinette, 427. 429. of Va., 515 U.S. 819, 832 (1995); Rosenberger v. Rector & Visitors of the Univ. 430. (2001) (ruling 120 98, 113–14, Good News Club v. Milford Cent. Sch., 533 U.S. 428. 426. the Free Speech review, rather than Establishment Clause scrutiny, review, rather than Establishment the Free Speech bereaved, meeting to a regulation that allows the would likely apply or to place the to create a roadside memorial some certain criterion, message on a roadside memorial. name or a private propriate disclaimer, the reasonable observer would be aware that it propriate disclaimer, the reasonable ments on public property could reflect private speech to which Free speech to could reflect private public property ments on would Clause concerns, than Establishment rather Speech principles, (or which all of its residents a monument on a town created apply: “[I]f the name of a per- some other criterion) could place all those meeting Free Speech fo- or some other private message [the son to be honored properly be applied to the monument].” rum doctrine might are given access to a forum, otherwise qualified individuals cannot be to a forum, otherwise qualified individuals are given access perspective.” the forum because of their “religious denied access to Thus, in a limited public forum, the bereaved could customize and cre- public forum, the bereaved could Thus, in a limited and messages and include religious symbols ate their own message a limited public forum for road- because once the government creates religious messages without engag- side memorials, it cannot exclude ing in viewpoint discrimination. raised by state-sponsored roadside Establishment Clause concerns adding a disclaimer. memorials could be mitigated by 2013] all. Sectarian speech at government look like does not of monuments PUBLIC SPACE ON PRIVATE MEMORIALS mind.” come to in Arlington Cemetery on markers identifications 181 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 58 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 95 Side A 08/28/2013 10:13:22 A 08/28/2013 95 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 95 Side B 08/28/2013 10:13:22 434 . 1357, EV As such, 433 . U.L. R W 432 , 95 N , http://www.cem.va.gov/hmm/em- Available Emblems of Belief for Placement 435 , FFAIRS A at 677–78 (“The government can restrict access to a at 677–78 The Public Sensibilities Forum id. ETERANS V The Department of Veterans Affairs guidelines on The Department of Veterans Affairs , 515 U.S. at 829 (“The necessities of confining a forum to the , 515 U.S. at 829 (“The necessities of confining These guidelines offer over fifty emblems of belief, as These guidelines offer over fifty emblems TOF ’ 436 EP 437 , 473 U.S. at 800. , 523 U.S. at 682; U.S. D Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 675 (1998) (character- Ark. Educ. Television Comm’n v. Forbes, 523 Leslie Gielow Jacobs, 1408–28 (2001) (setting out constitutionally permissible access standards for non- (2001) (setting out constitutionally permissible 1408–28 public forums). blems.asp (last visited Feb. 23, 2013) (“No graphics (logos, symbols, etc.) are per- mitted on Government-furnished headstones or markers other than the available emblems of belief, the Civil War Union Shield, the Civil War Confederate South- ern Cross of Honor, and the Medal of Honor insignias.”). nonpublic forum ‘as long as the restrictions are reasonable and [are] not an effort nonpublic forum ‘as long as the restrictions public officials oppose the speaker’s to suppress expression merely because view.’” Inc., 473 U.S. (quoting Cornelius v. NAACP Legal Def. and Educ. Fund, 788, 800 (1985)). limited and legitimate purposes for which it was created may justify the State in limited and legitimate purposes for which of certain topics.”). reserving it for certain groups or for the discussion izing candidate debate as private speech forum in part because of “implicit repre- izing candidate debate as private speech forum views expressed were those of the sentation of the broadcaster . . . that the candidates [and] not its own”). on Government Headstones and Markers See See Cf. See Rosenberger Forbes Cornelius If state policymakers want discretion to limit memorial messages If state policymakers want discretion 2. Forum on a Limited Public Limits Permissible be- that a message to underscore are available While disclaimers 437. 435. 434. 436. 433. 432. the government may limit the choice of topics or class speakers in a may limit the choice of topics or the government expressed. but it may not limit the viewpoints limited public forum, “Available Emblems of Belief for Placement on Government Head- “Available Emblems of Belief for a useful starting point for crafting stones and Markers” may provide such policies. that offend public sensibilities, such authority would likely pass con- that offend public sensibilities, such are clearly articulated and consist- stitutional muster if the policies ently enforced. longs to a private individual rather than the government, there could government, rather than the a private individual longs to to allow certain a government would not want be instances when roadways.speech on the public circumscribe States will likely want to prevent political on roadside memorials and the topics communicated references, profan- as well as vulgar sexual and commercial messages, ity, or hate speech. would not a limited public forum, a government In just any speech on these memorials.be forced to entertain The gov- a limited public forum to its purpose. ernment may cabin Access to a limited public forum may be restricted only if the limita- public forum may be restricted Access to a limited forum and are not in light of the purpose” of the tions are “reasonable based on the speakers’ viewpoints. 182 rather forum, public a limited in occurring speech religious is private message. of a religious endorsement than government NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 59 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 95 Side B 08/28/2013 10:13:22 B 08/28/2013 95 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 96 Side A 08/28/2013 10:13:22 If the 438 . 419, 470–71 (2001) (dis- . 419, 470–71 EV Applying these neutral Applying . L. R LA 439 note 437 (outlining instructions for re- , 53 F eche scene or the Ten Command- eche scene or the supra Therefore, it is unlikely a single Su- Therefore, it is unlikely , is necessary to avoid the appearance to avoid the is necessary 442 440 FFAIRS Free Speech and the Limits of Legislative Discretion: Free Speech and the Limits of Legislative A , 492 U.S. at 600–01 (“[T]he Establishment Clause does not , 492 U.S. at 600–01 ETERANS V TOF ’ , Cnty. of Allegheny v. ACLU, 492 U.S. 573, 597 (1989) (noting “the effect , Cnty. of Allegheny v. ACLU, 492 U.S. 573, EP 441 443 Leslie Gielow Jacobs, cussing requirements for a constitutional specialty license plate program). cussing requirements for a constitutional Cir. 1994). questing an emblem not available for inscription). limit only the religious content of the government’s own communications.limit only the religious content of the government’s It also of religious communications prohibits the government’s support and promotion by religious organizations. Indeed, the very concept of ‘endorsement’ conveys the sense of promoting someone else’s message. Thus, by prohibiting government en- dorsement of religion, the Establishment Clause prohibits precisely what oc- curred here: the government’s lending its support to the communication of a religious organization’s religious message.”) (internal citation omitted). of the government’s use of religious symbolism depends upon its context”); Stone of the government’s use of religious symbolism (invalidating a state statute re- v. Graham, 449 U.S. 39, 42 (1980) (per curiam) Commandments on public classroom quiring the posting of a copy of the Ten purely as a religious admonition, walls because the Commandments were posted where the Bible may constitutionally not “integrated into the school curriculum, civilization, ethics, comparative relig- be used in an appropriate study of history, 374 U.S. 203, 225 (1963) (inval- ion, or the like”); Abington Sch. Dist. v. Schempp, schools, yet noting the “study of idating required daily Bible readings in public as part of a secular program of the Bible or of religion, when presented objectively education, may not [offend] the First Amendment”). The Example of Specialty License Plates Cnty. of Allegheny Cf. See, e.g. As the Court has often repeated, the particular facts of the case often repeated, the particular facts As the Court has 440. Transp. Auth., 42 F.3d 1, 13 (1st AIDS Action Comm. of Mass., Inc. v. Mass. Bay 441. R.A.V. v. City of St. Paul, 505 U.S. 377, 394 (1992). 442. 439. 443. 438. U.S. D state DOTs want to retain discretion to deny certain symbols and deny certain symbols discretion to want to retain state DOTs viewpoint-neutral they must promulgate on memorials, messages applied. that are consistently standards standards “quite precisely” standards ments turns on the details and context of the exhibit.ments turns on the the Similarly, turn on the details a roadside cross will likely also permissibility of display.and context of the to strike a Policymakers must struggle concerns of its citi- competing interests and careful balance between endorse someone else’s religious zens, while making sure not to message. preme Court case will afford a sweeping answer to the roadside memo- will afford a sweeping answer to preme Court case range of options or a comprehensive answer to the rial phenomenon available to state and local policymakers.and permutations Whether may display a cr`or not a government that the government “is seeking to handicap the expression of particu- the expression to handicap government “is seeking that the lar ideas.” and the context of the display loom large in the Court’s analysis of of the display loom large in the and the context cases. Establishment Clause 2013]belief. of emblems additional for requesting as a method well PUBLIC SPACE ON PRIVATE MEMORIALS 183 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 60 Seq: 27-AUG-13 10:54 33655-neb_92-1 Sheet No. 96 Side A 08/28/2013 10:13:22 A 08/28/2013 96 Side Sheet No. 33655-neb_92-1 33655-neb_92-1 Sheet No. 96 Side B 08/28/2013 10:13:22 VII. CONCLUSION The roadside memorial phenomenon lies at the crossroads of cul- at the crossroads lies memorial phenomenon The roadside 184 NEBRASKA LAW REVIEW [Vol. 92:124 \\jciprod01\productn\N\NEB\92-1\NEB105.txt unknown 61 Seq: 27-AUG-13 10:54 tural, social, religious, and legal forces. religious, and tural, social, the contributes to This Article and research together cross-disciplinary by drawing legal scholarship memorials.and purpose of roadside the meaning delving into Ar- This Speech by the Free legal issues implicated examines the ticle also Clause.Clause and the Establishment all roadside States that ban Establishment Clause challenges.memorials may face courts em- If other drivers, as memorial as a means of warning brace the roadside then memorial a connection with the deceased, well as maintaining the warning may avenues to communicate makers’ lack of alternative a total ban.lead courts to invalidate the pre- But if courts conclude commemorate the of the roadside memorial is to dominant message the cemetery may uphold a total ban on the grounds deceased, courts alive. to keep the deceased’s memory is an ample avenue States that crosses also face or tacitly permit, roadside memorial choose to ignore, concerns.Establishment Clause crosses Unattended private roadside an appear- to remain on public lands risk creating that are allowed of the religious message.ance of government endorsement However, limited public forum in which the for states that choose to create a of control over the message, any re- bereaved can have some measure attributed to the government.ligious message is unlikely to be So apply viewpoint-neutral regula- long as states create and consistently speakers that are acceptable, and tions on the types of messages and these regulations are likely to pass include an appropriate disclaimer, constitutional muster. This Article offers practical solutions to those the risk of traffic hazards created by policymakers who seek to reduce an alternative avenue for the be- private memorials, while offering the message that commemo- reaved to actively participate in creating rates the loved one. Armed with a better understanding and consequences, as well as the animat- appreciation of the constitutional law and policymakers within each ing forces behind these memorials, these memorials. state can decide how best to regulate 33655-neb_92-1 Sheet No. 96 Side B 08/28/2013 10:13:22 B 08/28/2013 96 Side Sheet No. 33655-neb_92-1