TALLAHASSEE — A Florida regulation governing the use of state buildings never mentions the term “grossly offensive” as a reason for rejecting an exercise of free speech.
But that phrase is what officials repeatedly have relied on in turning down a request from the New York-based Satanic Temple to install a diorama of an angel falling into hell at the Capitol rotunda.
The Department of Management Services, which reviews and approves proposed displays on state property, rejected the temple’s offering last Wednesday.
The temple’s proposed display “is grossly offensive during the holiday season,” department spokesman Ben Wolf told the Tampa Tribune in an email, adding that “the rules regarding the area will be reviewed.”
Wolf did not immediately respond to follow-up questions Thursday.
The diorama, according to a photo provided by the temple, shows a doll meant to represent an angel appearing to fall from clouds made of cotton into “flames,” some painted on the back of the display and others made of construction paper.
It would have joined banners from atheist groups, a “Festivus” pole made of Pabst Blue Ribbon beer cans and an office chair piled with ribbons of paper meant to represent the deity of the Church of the Flying Spaghetti Monster.
The state first allowed a private group to put up a Christian nativity scene inside the rotunda. It later allowed other displays to ensure there was no appearance of favoring one group or faith.
A sign in the rotunda refers to department Rule 60H-6.009, which “guarantees the opportunity for freedom of expression … in the public forum areas, such as the rotunda area on the plaza level of the Capitol, within and on the grounds of buildings.”
That rule, last revised in 1998, does not use “grossly offensive” as a reason to deny public displays.
The Federal Communications Commission has defined profanity, for example, as “including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” But its website does not appear to define the term “grossly offensive” itself.
The phrase, however, cuts both ways.
An American Atheists spokesman this year described a planned Sept. 11 memorial in Princeton, N.J., as “grossly offensive” because a piece of steel girder from the World Trade Center had a cross cut into it.
The Florida administrative rule does require parties to identify themselves, describe the “use intended” of an area and spell out dates and times for displays and activities.
“Authorization, when granted for the use of such facilities, shall be on a first-come, first-served basis,” the rule says.
A related rule allows activities if they are “determined to be appropriate” and have “a clearly identified public purpose.”
Another rule proscribes conduct that is too loud, “unreasonably obstructs” the area, “impedes or disrupts the performance of official duties” or “prevents the general public from obtaining the administrative services provided in a building in a timely manner.”
The Satanic Temple now is threatening to file suit.
“We feel we were wrongly denied the opportunity to place our display within the Capitol rotunda,” Temple representative Lucien Greaves said earlier this week.
Because the department “failed to reply to our offer to revise the holiday display we had offered, we are left to conclude that DMS is engaged in blatant viewpoint discrimination.”
Constitutionally, government officials “should be loath to restrict speech on the basis of its content or viewpoint,” according to the First Amendment Center at Vanderbilt University.
“Governments may not discriminate against viewpoints with which they disagree or which make them uncomfortable,” its website says.
In a landmark 1972 case, the U.S. Supreme Court explained that “(a)bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
The nativity was scheduled to remain in place until Friday. Another nativity scene, by a group called Reclaim Christmas for Christ, is scheduled to be on display from Friday to Jan. 6 for Three Kings Day.
The Festivus pole, Flying Spaghetti Monster display and a banner from the Freedom From Religion Foundation are approved to be on display until Jan. 3.
The American Atheists and Tallahassee Atheists displays are staying until Jan. 7, according to John M. Porgal, director of the North Florida American Atheists.
Portions of this article previously appeared online.