William & Mary Bill of Rights Journal Volume 26 (2017-2018) Issue 4 Article 9 May 2018 Not Today, Satan: Re-examining Viewpoint Discrimination in the Limited Public Forum Daniel Cutler Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Daniel Cutler, Not Today, Satan: Re-examining Viewpoint Discrimination in the Limited Public Forum, 26 Wm. & Mary Bill Rts. J. 1241 (2018), https://scholarship.law.wm.edu/wmborj/vol26/ iss4/9 Copyright c 2018 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj NOT TODAY, SATAN: RE-EXAMINING VIEWPOINT DISCRIMINATION IN THE LIMITED PUBLIC FORUM Daniel Cutler* INTRODUCTION ................................................1241 I. SATANISM .................................................1245 A. The Satanic Temple ......................................1246 B. After School Satan .......................................1248 II. LEGAL BACKGROUND ........................................1250 A. Viewpoint Discrimination in Limited Public Forums.............1250 B. Good News Club v. Milford Central School...................1252 III. THE FIRST AMENDMENT AS APPLIED TO AFTER SCHOOL SATAN .......1255 A. Prohibiting After School Satan in Public Schools Is Unconstitutional Based on the Good News Club Precedent .....................1255 B. After School Satan as an Opportunity to Re-examine Viewpoint Discrimination in Limited Public Forums .....................1259 1. Abandoning Public Forum Analysis for Public Schools .......1262 2. Public Schools as Limited Public Forums with Added Deference Granted to Public School Administrators ..................1263 CONCLUSION ..................................................1265 INTRODUCTION In 2016, the Satanic Temple (the “Temple”) announced an after-school program1 that was sure to disturb the parents of public school students across the United States. After School Satan, as the program is known, is an extracurricular club the Satanic Temple actively promotes and wishes to host after the normal school day in public elementary schools.2 The Temple specifically targets schools that already host the prominent evangelical Christian after-school program, the Good News Club,3 run by the Child Evangelism Fellowship.4 As of the writing of this Note, After * JD Candidate, William & Mary Law School, 2018. BA, Fordham University, 2015. I would like to thank my friends and family for their love and support, and Professors Vivian Hamilton and Timothy Zick for their guidance during the drafting of this Note. 1 Press Release, After Sch. Satan, The Satanic Temple Leverages Religious Freedom Laws to Put After School Clubs in Elementary Schools Nationwide, https://afterschoolsatan.com /press-releases/ [https://perma.cc/U2WJ-8WAD] (last visited Apr. 12, 2018). 2 Id. 3 Id. 4 Ministries, CHILD EVANGELISM FELLOWSHIP, https://www.cefonline.com/ministries/ [https://perma.cc/X5W2-F23K] (last visited Apr. 12, 2018). 1241 1242 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 26:1241 School Satan hosts chapters of its clubs in nine public elementary schools,5 although the Temple’s goal is to host chapters in all schools that already host a chapter of the Good News Club.6 The Satanic Temple cites Good News Club v. Milford Central School7 for its right to hold After School Satan.8 In Good News Club, the Supreme Court held that it was constitutional for the Good News Club to host its after-school program in a public school.9 Not allowing the Good News Club to do so, the Court reasoned, constituted viewpoint discrimination in a limited public forum, which is prohibited by the First Amendment.10 The Satanic Temple has a specific goal in mind with promoting After School Satan. As the Satanic Temple’s spokesman Lucien Greaves11 stated: It’s important that children be given an opportunity to realize that the evangelical materials now creeping into their schools are rep- resentative of but one religious opinion amongst many. While the Good News Clubs focus on indoctrination, instilling them with a fear of Hell and God’s wrath, After School Satan Clubs will focus on free inquiry and rationalism, the scientific basis for which we know what we know about the world around us. We prefer to give children an appreciation of the natural wonders surrounding them, not a fear of everlasting other-worldly horrors.12 5 Such schools include Still Elementary School in Powder Springs, Georgia; Chase Street Elementary School in Panorama City, California; C. A. Weis Elementary School in Pensacola, Florida; Nehalem Elementary School in Nehalem, Oregon; Vista Elementary School in Taylorsville, Utah; Centennial Elementary School in Mount Vernon, Washington; Watkins Elementary School in Springfield, Missouri; Roskruge Bilingual in Tucson, Arizona; and Bradbury Heights Elementary in Capitol Heights, Maryland. Find a Club, AFTER SCH. SATAN, https://afterschoolsatan.com/find-a-club/ [https://perma.cc/3TZZ-ZUZ7] (last visited Apr. 12, 2018). 6 See Educatin’ with Satan, AFTER SCH. SATAN, https://afterschoolsatan.com [https:// perma.cc/H4G2-X4DP] (last visited Apr. 12, 2018). 7 533 U.S. 98 (2001). 8 FAQ, AFTER SCH. SATAN, https://afterschoolsatan.com/educatin-with-satan/faq/ [https:// perma.cc/K2QC-AL4H] (last visited Apr. 12, 2018). 9 533 U.S. at 102 (concluding that Milford Central School’s prevention of Good News Club hosting its after-school club in the school was a violation of the Club’s First Amendment free speech rights). 10 Id. at 112 (“[S]peech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint.”). 11 Lucien Greaves of the Satanic Temple, DETROIT METRO TIMES (May 27, 2014), http:// www.metrotimes.com/detroit.lucien-greaves-of-the-satanic-temple/Content?oid=2201492 [https://perma.cc/PFC9-26QG]. 12 Press Release, After Sch. Satan, supra note 1. 2018] NOT TODAY, SATAN 1243 Thus, the Satanic Temple does not wish to indoctrinate elementary school children with the tenants of Satanism through an extracurricular program.13 Rather, the Temple is making a broader statement addressing evangelical Christianity and the supposed dangers it poses to children.14 Yet not everyone takes the Temple at its word. In fact, some suspect the Satanic Temple only hopes to create controversy and bring the always-contentious issue of separation of church and state to the forefront of the American public consciousness.15 After School Satan, while supported by some, faces considerable opposition.16 Focused legal opposition comes from the Liberty Counsel, the group responsible for legal representation of the Child Evangelism Fellowship.17 According to the Liberty Counsel, the Satanic Temple is a “phony organization” whose primary goal “is to stop Christian organizations from meeting in public schools.”18 The Liberty Counsel even goes as far as to “offer[ ] pro bono legal counsel to the schools targeted by this bogus, disruptive group.”19 While the Liberty Counsel states the legal basis for why the Good News Club has a First Amendment right to meet in public schools,20 it does not suggest any legal basis for why an After School Satan Club (ASSC) could not do the same.21 13 See id. 14 Greaves believes that “the Good News Clubs focus on indoctrination, instilling [ele- mentary school children] with a fear of Hell and God’s wrath.” Id. 15 See generally Katherine Stewart, After School Satan Club Proposal Spurs Debate on Religious Activity in Public Schools, WASH. POST (Aug. 4, 2016), https://www.washington post.com/local/education/after-school-satan-club-proposal-already-sparking-debate-at -schools/2016/08/04/0f01a972-59ec-11e6-831d-0324760ca856_story.html?utm_term=.cca44 c81b2ac [https://perma.cc/HVU3-EZS8] (“Legal experts say the head-to-head competition between the Good News Clubs and the After School Satan Clubs could set up a test for religious liberty.”). 16 For example, a poll on the Washington Post’s website asked readers the question: “Should The Satanic Temple be allowed to open After School Satan Clubs in elementary schools?” While the Washington Post admits the user poll is non-scientific (and thus, not statistically valid), as of 9:15 PM on March 17, 2018, 54% of 55,501 respondents selected the answer, “No, they shouldn’t,” while the remaining 46% chose, “Yes they should be allowed.” Id. 17 See Press Release, Liberty Counsel, Satanist Group Has No Right to Disrupt School (Aug. 2, 2016), https://www.lc.org/newsroom/details/080216-satanist-group-has-no-right-to -disrupt-school [https://perma.cc/P3DT-4PM3]. The Liberty Counsel is a Christian ministry. About Liberty Counsel, LIBERTY COUNS., http://www.lc.org/about [https://perma.cc/U3M7 -EPQ8] (last visited Apr. 12, 2018). The organization is “dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these . topics.” Press Release, Liberty Counsel, supra. 18 Mat Staver, After School Satan Club Targets Christian Clubs, LIBERTY COUNS. (Aug. 5, 2016, 2:55 PM), http://libertycounsel.com/after-school-satan-club-targets-christian-clubs -liberty-counsel/ [https://perma.cc/B8CQ-CK7J]. 19 Id. 20 See id. (referencing the Supreme Court’s holding in Good News Club). 21 See id. (stating that ASSC may be disruptive for children in public schools). 1244 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 26:1241 This Note addresses two issues related to the First Amendment concerns raised by After School Satan. First, it would be unconstitutional for public school adminis- trators to prohibit the Satanic Temple from hosting After School Satan in public schools, as doing so would amount to viewpoint discrimination in a limited public forum under Good News Club. Any claims the Liberty Counsel might bring against the Satanic Temple would be frivolous and highly unlikely to succeed. Second, After School Satan may present the Court with an opportunity to re-examine the place, if any, religion has in public schools. At the least, the Court can re-examine the lenient standard for viewpoint discrimination in a limited public forum.