Discovery Institute: Could They Win in Court?

Our last post on this topic was “Darwin’s Dilemma” and VD. That was just a couple of days ago, so we won’t repeat all the background information here.

What prompts today’s post is something we found at the blog of the neo-theocrats at the Discovery Institute‘s creationist public relations and lobbying operation, the Center for Science and Culture (a/k/a the Discoveroids, a/k/a the cdesign proponentsists).

The Discoveroid blog has yet another article on the Darwin’s Dilemma exhibition case. As expected, it’s by Casey Luskin: How Smithsonian Institution Pressured the California Science Center. Casey says, with bold font added by us:

At the same time that the CSC [California Science Center] learned that a pro-ID group had booked its facilities, on the other side of the country, head staff at the Smithsonian Institution were outraged that one of their affiliates was allowing a pro-ID event.

Yes, Casey has found still another smoking gun in his crusade to attack the evil of VD (viewpoint discrimination). You can read Casey’s whole article to learn what he’s ranting about today. As we’ve said before, the issue of VD should be irrelevant here, because if the Science Center was justified in considering the film exhibition contract breached, it wouldn’t matter if they were happy to cancel the show, nor would it matter why they were happy.

But let’s look into this a bit farther. What if the court decides that the Science Center didn’t have good grounds to cancel the scheduled showing of the creationist film? Even then, where does VD come into the picture? It’s a breach of contract, and whatever the penalties are, that should be the deal. Right?

Wrong! The latest complaint against the Science Center is asking for all kinds of damages — and attorneys’ fees — because of the alleged constitutional issues, so VD would have to be considered.

To get a feel for the legal issues involved, it’s worth paying attention to the US Supreme Court decision Casey mentioned earlier, which we briefly touched on in our prior post. It’s Lamb’s Chapel v. Center Moriches School District, which is summarized in this Wikipedia write-up. That case involved a public school that denied after-hours use of its facilities for the exhibition of a film series dealing with family and child-rearing issues. It was a six-part film series containing lectures by Doctor James Dobson.

The school board had rules allowing social, civic, and recreational uses of its schools, but Rule 7 prohibited use by any group for religious purposes. The church that wanted to show the Dobson lectures claimed that the school board’s policy violated the First Amendment’s Freedom of Speech Clause. And they won their case in the Supreme Court.

But before that final decision the church had lost in the lower courts on the grounds that the school district’s rule treated all religions and all uses for religious purposes alike. The Supreme Court, however, said that approach …

… does not answer the critical question whether it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.

You can see why Casey thinks the case helps the creationists’ cause regarding the Darwin’s Dilemma film. The Supreme Court also said:

The film series involved here no doubt dealt with a subject otherwise permissible under [the school district’s rules], and its exhibition was denied solely because the series dealt with the subject from a religious standpoint.

The court’s opinion is long and at times complex; it discusses lots of other cases. After reversing the lower court and ruling for the church, there are some concurring opinions that invoke slightly different reasoning. Interestingly, there are no dissents.

So we may be confronting a real mess. If the Science Center wrongly canceled the exhibition contract, were they engaged in — gasp! — VD? That is, did they discriminate against religion (presumably a no-no), or did they only reject pseudo-science? If they can show that it was merely pseudo-science they were against, would that make a difference?

Is there any limit to this VD business? How far can the Discoveroids ride their “academic freedom” train? Do state universities and other public institutions have to treat every maniac as if he were a serious scholar with a legitimate viewpoint? Can nothing be banned, except perhaps “hate speech”? Must science-oriented institutions, like the California Science Center, give access to practitioners of the occult to promote their worthless lore?

We don’t know the answers. But if the Science Center can’t show that the Discoveroids’ unauthorized press releases violated the exhibition contract, things may get sticky. Stay tuned.

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16 responses to “Discovery Institute: Could They Win in Court?

  1. That is, did they discriminate against religion (presumably a no-no), or did they only reject pseudo-science? If they can show that it was merely pseudo-science they were against, would that make a difference?

    Very interesting point. I 90% hope CSC wins on the contractual issue alone. But now you’ve got 10% of me hoping CSC argues it was merely bad science, which they have a right to reject, and the DI being forced to claim in court that intelligent design is religious.

  2. But now you’ve got 10% of me hoping CSC argues it was merely bad science

    By renting their facilities to outside organizations, the CSC has created a limited public forum and cannot pick and chose which organizations can use it based on content. If they argue that the DI was presenting pseudo-science they would be making the DI’s case for them. And the DI would not need to make any representations regarding the religious or non-religious nature of their content.

    The Sam Noble Museum at OU handled it right when the DI was peddling their Academic Freedom Day nonsense a year or so ago. They rented their facility to them, but made it quite clear that they did not endorse the content.

  3. Gabriel Hanna

    Religion, of course, is explicitly protected by the First Amendment while pseudoscience is not. Suppose it were a film about astrology? Would there be a constitutional issue?

  4. Gabriel Hanna

    A better example–suppose the Institute of Noetic Sciences had rented it to show “What the bleep do we know”? Is there still a constitutional issue?

  5. I’m confused. Would the DI push the issue based on religion? If so, doesn’t that shoot themselves real well in the foot because they’re always claiming that ID is science, not religion? So, say they push the religion angle and claim that the movie was discriminated against because the CSC didn’t like the religion involved. They will now have a second court in the land in which they will be on record as having linked ID and religion, the first being the Dover case. At least these are the two of which I’m aware. There may already be more. Still, I would think they would not want to add yet ANOTHER federal court district in which they are explicitly tied to religion as that would hurt their long-term goals.

  6. Gabriel Hanna says:

    Suppose it were a film about astrology? Would there be a constitutional issue?

    I should hope not. But in that case, to benefit from the special protection uniquely accorded to religion (and probably to political speech), the Discoveroids would have to come out of the closet and demand religous protection for their “theory.”

  7. Religion, of course, is explicitly protected by the First Amendment while pseudoscience is not.

    One man’s pseudo-science is another man’s speech and that is the crux of the matter.

    And let’s be clear about one thing. The DI don’t need to argue this with regard to their free exercise of religion rights, only their free speech rights. This article is brief and to the point. The issue comes down to the two part question: 1) for what purposes did the governmental entity intend to allow expressive use of the forum; and 2) does the expression at issue fit within the purpose so designated?

    Now if you go to the CSC’s Event Services page, you find that they have apparently rented space out for the McDonald’s Corporation holiday party. So, the answer to question 1 above may very well be broadly defined. I would be careful about assuming to much from the website but their event policy seems to be to rent space as a means of revenue generation to whatever group can pay the fees. If the DI (or more accurately, their associates at the AFA) can come up with the fees and meet the terms of the rental agreement, then the CSC can only impose time, place and manner (not content) restrictions on the event. Same goes for the Noetic Institute and, heck, even the Time Cube guy should he be so inclined.

    I really hadn’t wanted to read through the legal documents , but there is no baseball on until Friday, so I may just have to scan through some of them to see specifically what the DI and the CSC are arguing.

  8. It still comes down to the contract. The AFA authorized publicity that was not approved by the CSC. The DI didn’t send out the press release all by themselves, as the emails between the AFA and DI clearly show. The DI confirmed the contract was in place and the AFA authorized the press release.

    So what if the CSC was looking for an excuse and conveniently found one thanks to the DI’s stupidity and sneakiness. Also, clearly, the AFA was being underhanded with the CSC and deserved what they got. Now they’re pretending to be all innocent and put upon.

    Set your alarm clock, CM, we’re going to need to be reminded about this when it comes to court in JUNE NEXT YEAR!

  9. I agree with the Doc. The contract is the issue. If it is determined that the publicity was by an independent third party and did not violate the contract, the CSC pays damages and attorney fees. On the other hand, if the unapproved publicity is determined to be by AFA because of the clear linkage between AFA and DI, then the CSC had a clear contractual basis for canceling the event.

    In the Lamb’s Chapel case, the school district refused to allow the church to participate in the first place – they did not cancel an existing arrangement. The equivalent VD issue would apply if the CSC had refused to rent space to AFA because they were IDiots. That’s not what happened. The CSC accepted the AFA’s request, and merely held them to their contract.

  10. Does the simple act of “renting their facilities to outside organizations” for explicitly private functions turn these facilities into a “limited public forum”?

    Also, does anybody know the result of the hearing on the Demurer to the Third Amended Complaint (on 8 October)? The electronic docket lists it as “Sustained in part”, but it would be interesting to know which parts were sustained.

  11. Findlaw defines a limited public forum as “a public forum created by the government voluntarily for expressive activity that may be restricted as to subject matter or class of speaker”.

    I don’t see how making the CSC facilities available for private functions (weddings, conferences, etc) is creating a public forum for expressive activity.

  12. I don’t see how making the CSC facilities available for private functions (weddings, conferences, etc) is creating a public forum for expressive activity.

    It comes down to this. It is a limited public forum because the CSC makes their facilities available to the public for use based on the terms and conditions outline in their Event Policy. There is nothing in that policy that says the facilities are limited to specific types of events or subject matter. To that end, they can only impose time, place, and manner restrictions. They cannot place restrictions based on content. A secular wedding is treated the same as a Baptist wedding. ESL classes are treated the same as Klingon classes offered by the local Star Trek club. Corporate retreats by Whole Foods are treated the same as those by McDonalds.

  13. I would question whether hiring out facilities as a commercial venture constitutes “a public forum … for expressive activity”. In this context the CSC appears to be acting in the role of commercial landlord, rather than public facilitator/benefactor. Yes, all commercial ventures sell their wares to “the public“, but that does not make a hotel room (for example) a “public forum” — and I would think that this would be true, even if the hotel were owned by the government. A public forum is surely a forum for public discourse, not merely any facility open for private rental by some ‘member of the public’.

    Whether the fact that the facilities being hired includes a theatre (which arguably makes it a forum for “expressive activities”) makes a difference, I do not know.

    But then again, I’m not a lawyer, yet alone a constitutional lawyer, so what do I know?

  14. In reading up on this, I found the following interesting SCOTUS quote:

    “No less so than a private owner of property, the state has the power to preserve the property under its control for the use to which it is lawfully dedicated.” [Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17L. Ed. 2d 149 (1966)]

    Which raises the interesting question of whether “the use to which [a science museum] is lawfully dedicated” precludes the promotion of pseudoscience.

  15. Hrafn says:

    Which raises the interesting question of whether “the use to which [a science museum] is lawfully dedicated” precludes the promotion of pseudoscience.

    If things get past the breach of contract issue, that’s going to be something the court will deal with.

  16. I would question whether hiring out facilities as a commercial venture constitutes “a public forum … for expressive activity”. In this context the CSC appears to be acting in the role of commercial landlord, rather than public facilitator/benefactor.

    That is a distinction without a difference. Whatever name you chose to apply to the CSC, in this context, they are making a government facility available to outside organizations and they cannot pick and chose which organizations can and can’t use the facilities based on content.

    Yes, all commercial ventures sell their wares to “the public“, but that does not make a hotel room (for example) a “public forum”

    Something that is widely misunderstood is that the First Amendment only restricts what the government can and can’t do.

    A public forum is surely a forum for public discourse, not merely any facility open for private rental by some ‘member of the public’.

    It is completely uncontroversial that the CSC has created a limited public forum by making it’s facilities available to outside organizations. I am struggling to figure out a way to say this. Part of the problem is that we need to be very careful in how we (definitionally) use the words ‘public’ and ‘private’ and how we apply them to the actors in a scenario and,separately, the nature of the activities those actors may engage in. It would seem best to understand a public forum as inherent in the relationship between actors, not as related to the activity that takes place on the facility.

    Which raises the interesting question of whether “the use to which [a science museum] is lawfully dedicated” precludes the promotion of pseudoscience.

    Do you suppose the fact that McDonalds held a holiday party there should be interpreted as an endorsement, by the CSC, of the nutritional value of Big Macs and french fries in a healthy diet?