Case Information
*1 Before COFFEY, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Cirсuit Judge. The plaintiffs, organizers of National Day of Prayer activities in the Village of Oak Park, Illinois, brought this action against the Village and a number of its officials (collectively "the Village"). The plaintiffs claimed that certain aspects of the Village’s policy governing the use of its Village Hall ("the Use Policy") violated the Free Speech Clause of the First Amendment. The district court initially concluded that the Village had committed unconstitutional viewpoint discrimination by denying the plaintiffs access to the Village Hall. The court also concluded that two additional aspects of the Use Policy were facially invalid. Later, after the Village filed a motion for reconsideration, the court vacated the part of its opinion that concluded that the Village had engaged in viewpoint discrimination, but upheld its ruling regarding the facial invalidity of the other challenged aspects of the Use Policy. For the reasons set forth in the following opinion, we reverse the district court’s decision that the *2 Village did not engage in viewpoint discrimination by denying the plaintiffs the use of facilities in the Village Hall. However, we affirm the court’s decision regarding the constitutional infirmity of two other aspects of the Use Policy.
I
BACKGROUND
A. Facts
1.
The Village has a municipal complex that consists of three floors; the ground floor and second floor are commonly referred to as the Village Hall. The Village Hall contains a number of work areas, offices and conference rooms.
Prior to 1995, the Village permitted local groups to use the Village Hall facilities on a first-come, first-served basis as long as a majority of persons in attendance were residents of Oak Park.
By mid-1995, use of Village Hall facilities had increased to the point that it began to interfere with the day- to-day operation of village government and significantly increased the Village’s expenses for custodial service and maintenanсe on the facilities.
Consequently, the Village adopted the Use Policy, which includes a section governing the use of the Village Hall by members of the public. This section sets forth six requirements that all "public forums, events or activities" must meet in order to be considered for use of the Village Hall:
The forum, event or activity must: (1) be open to all citizens of the Village; (2) have as its primary purpose providing a civic program or activity which benefits the public as a whole; (3) not be based on or must not promote or espouse the philosophy, ideas or beliefs of any particular group, entity or
organization[;] (4) be sponsored or put on by a local not-for-profit group or organization based within the Village; (5) not be sponsored or put on by a group or organization that has sponsored or put on a forum, event or activity in the Village Hall during the preceding twelve months, unless exceptional circumstances *3 are involved; and (6) not be a fundraising event.
R.1, Ex.A at 2. Two rooms were made available for public use under this section of the Use Policy./1 2.
In 1952, Congress declared an annual National Day of Prayer ("NDP") in a joint resolution signed by President Truman. In order to fix permanently the NDP as the first Thursday in May, the law was amended and signed by President Reagan in 1988. Each year, the President issues a proclamation encouraging citizens to pray on that day. According to the plaintiffs, the NDP’s purpose is to provide an occasion for Americans to gather together in order to pray for the United States, individual states and communities and officials at all levels of government. In 1993, 1994 and 1995, the plaintiffs were permitted to use the Village Hall to conduct a prayer service in conjunction with the NDP./2 These NDP assemblies were open to all, regardless of religious denomination or belief.
In February 1996, plaintiff Martin DeBoer submitted a "Public Notice of Meeting and Conference Room Sign-up Form" to the Village, seeking to again use the Village Hall for an NDP assembly on May 2, 1996. R.35, Ex.1, Ex.B. In the part of the form labeled "Agenda Items," Mr.
DeBoer wrote "Prayer for our community, and our local, state, and national government leaders." Id. Two months later, Village President Lawrence Christmas denied the request by letter on the ground that it violated provisions of the Use Policy. In 1997 and 1998, Mr.
DeBoer submitted similar applications, and in both years the Village again denied the request in a letter nearly identical to that issued in 1996./3 From 1996 through 1998, the plaintiffs held the NDP assembly at the Oak Park Library, located a few blocks from the Village Hall.
B. District Court Proceedings and Related Events
1.
After the Village denied Mr. DeBoer’s application for the 1998 NDP assembly, *4 the plaintiffs filed a complaint in the district court on April 20, 1998. This complaint alleged that the Use Policy was unconstitutional on its face because a number of its requirements conferred unbridled discretion on the defendants to determine who could use Village Hall facilities, particularly the requirements that (1) the event provide a civic program or activity that "benefits the public as a whole" and (2) that an event "not be based on or must not promote or espouse the philosophy, ideas or beliefs of any particular group, entity or organization" (the "promote or espouse" requirement). The complaint also alleged that the Village Hall was a "designated public forum" and that, in applying the Use Policy to the NDP assembly, the Village engaged in impermissible content- based discrimination.
During discovery, Village Attorney Raymond Heise explained the particular ways in which the Village believed the NDP assembly to violate the Use Policy.
First, he stated that the proposed event was not a "civic program or activity," which the Village defined as one concerning a citizen’s relationship to government, but instead was a religious activity because it involved the use of prayer. Second, the event did not "benefit the public as a whole" because it was not civic in nature and would appeal only to a segment of the Village’s population. Third, the event violated the "promote or espouse" requirement because the event was based on a particular viewpoint, one that advocated the value of prayer in addressing governmental issues.
Both parties then filed motions for summary judgment. In their summary judgment motion, the plaintiffs argued that the NDP assembly was a "civic program or activity" and that the Village’s position that the use of prayer rendered such an activity non-civic constituted impermissible viewpoint discrimination.
On February 18, 1999, the district court ruled on the parties’ summary judgment motions. First, the court held that the Village Hall was a nonpublic forum because access to it was granted only to select groups that met the Use Policy’s requirements; therefore, access *5 restrictions to the Village Hall needed only to be reasonable in light of the purposes served by the forum and viewpoint-neutral. The court then held that the Village engaged in viewpoint discrimination by denying the plaintiffs’ access request due to a belief that the NDP assembly was not "civic." The court disagreed with the Village’s argument that the use of prayer transformed the NDP assemblies into religious, not civic, expression, properly excludable under the Use Policy. Instead, the court found that the event’s use of prayer to convey its message was indistinguishable from a discussion about civic leaders from a religious viewpoint, noting that the "only difference is the packaging." R.66 at 8. The court also noted, however, that the record was unclear as to the actual nature of an NDP assembly; it explained that if the "NDP agenda [was] more expansive" than engaging in prayer only for community and government leaders, it would be constitutional for the Village to deny access to the plaintiffs, because the event "could no longer pass as ’civic.’" Id. n.2.
Next, the court found that the Use Policy’s "promotе or espouse" requirement was unconstitutionally viewpoint- discriminatory on its face. The court disagreed with the defendants’ argument that this prong actually promoted viewpoint neutrality because it mandated that "no viewpoint or all viewpoints be expressed." Id. at 10. Rather, it held that viewpoint neutrality requires that government be indifferent to the viewpoints of speakers in its forums and that, by contrast, this prong of the Use Policy "smacks of government management of speech." Id.
Lastly, the court found that the requirement that an event have as its primary purpose the promotion of a "civic program or activity which benefits the public as a whole" granted Village officials unbridled discretion in violation of the Free Speech Clause. The court first explained that the "civic program or activity" portion of the requirement was not constitutionally problematic because the Village had employed a consistent definition of the term "civic" (one involving the relationship between citizens and govern ment) and because its previous decisions *6 regarding access (prior to this case) had correlated with that definition. However, the court held that the "benefits the public as a whole" requirement could not survive constitutional scrutiny because it did not provide narrow and definite standards through which it could be applied evenhandedly. The court was unclear as to what types of activities actually met such a standard and noted that Village officials also had expressed uncertainty on that point.
2.
As a consequence of the court’s decision, the plaintiffs were granted authorization to hold an NDP assembly at the Village Hall on May 6, 1999.
Unbeknownst to the plaintiffs, Simone Boutet, an attorney for the Village, attended the event and surreptitiously taped the proceedings.
After the assembly, the defendants filed a motion for reconsideration in the district court, to which they attached a transcript of the proceedings of the 1999 NDP event. On November 10, 1999, the court ruled on the motion and determined that the transcript met the requirements for consideration as newly discovered evidence under Federal Rule of Civil Procedure 60(b).
Turning to the merits of the motion, the court ruled that the transcript demonstrated that the content of the NDP prayer service was primarily religious, not civic. To support its conclusion, the court cited the following aspects of the event: (1) the theme of the service was "Light the Nation with Prayer," and event leaders read and preached about passages from the New Testament and the teachings of Jesus Christ; (2) the audience was lead in a hymn entitled "Heal Our Land," the verses of which contained various quotations from Jesus Christ; (3) lengthy segments of the service were "about the church itself," in which a pastor lead groups in prayers for "the Church," which was defined as "the Body of Christ"; and (4) the group sang a song entitled "Shine, Jesus, Shine" and recited a closing prayer for the church and for government that praised Jesus Christ and asked for his help to "build back a great nation." R.103 at 7-8 (internal quotation marks omitted). The assembly also *7 included prayer for the local community, the nation and various government leaders (many by name), reflections on the role that prayer has played in the founding of American government and preaching that touched on a number of contemporary political and governmental issues.
However, the district court found that these latter elements were not the primary focus of the assembly and that they did not transform it into a civic event. As a result, the court found that the Village constitutionally could exclude the event from the Village Hall.
The court also went further, concluding that, because "the line between civic and non-civic prayer is too fine to be drawn by the law," no form of prayer could be considered civic in content. Id. at 8.
The court explained that, regarding prayer, "the content and the manner of expression are so closely intertwined" that "the form of the expression seems to transform even otherwise secular topics into religious subject matter." Id. at 10. The court also explained that forcing the Village to scrutinize proposed prayer services for their civic content would likely lead to an excessive entanglement with religion in violation of the Establishment Clause.
However, the court declined to vacate the portion of its earlier judgment regarding the unconstitutionality of the "promote or espouse" requirement and the "benefits the public as a whole" requirement. It found that, although the plaintiffs properly could be barred from the Village Hall because their event was non-civic, they nevertheless had standing to mount a facial challenge to both of those provisions.
II
DISCUSSION
A. Introduction
1.
The plaintiffs now appeal the district court’s decision that the NDP assembly was not a "civic" event and that the Village’s refusal to grant them access to the Village Hall did not amount to viewpoint-based discrimination. The court originally granted summary judgment to *8 the plaintiffs on this issue, but, after granting the motion for reconsideration, it vacated that portion of its earlier opinion. The Village cross-appeals the district court’s decision to grant summary judgment to the plaintiffs by holding that the "promote or espouse" requirement and the "benefits the public as a whole" requirement were unconstitutional.
We review a district court’s grant of
summary judgment de novo, construing all
facts, and drawing all reasonable
inferences from those facts, in favor of
the non-moving party. See Clay v. Holy
Cross Hosp.,
56(c)./4
2.
The extent to which government can control access to its property depends upon the nature of the property at issue.
See Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc.,
Consequently, the Supreme Court has adopted a "forum analysis" to determine the extent to which government may regulate the use of that property. Id.
The Court has traditionally identified three types of forums: the traditional public forum, the designated public forum and the nonpublic forum. See Ark. Educ.
Tele. Comm’n v. Forbes,
A traditional public forum, such as a street or a park, is property that "’by long tradition or by government fiat’. .
. has been ’devoted to assembly and debate.’"
AETC,
"’[T]he Court has looked to the policy
and practice of the government to
ascertain whether it intended to
designate а place not traditionally open
to assembly and debate as a public forum.’"
Id. (quoting Cornelius,
In both a traditional and a designated public forum, reasonable time, place and manner regulations are permissible, but any content-based prohibition is permissible only if it is necessary to serve a compelling state interest and is drawn narrowly to achieve that interest.
See Cornelius,
In distinguishing between designated and nonpublic forums, the case law has noted that the more selective the government is in restricting access to its property, the more likely that property will be considered a nonpublic forum./5 The district court undertook this type of forum analysis and found that the Village Hall was a nonpublic forum. It noted that, in implementing a Use Policy with six enumerated requirements that must be met before access can be granted, the Village provided only "selective access" to the Village Hall that was not "indiscriminate" enough to convert the property into a designated public forum.
R.66 at 5 (quotation marks omitted).
In considering the forum status of the Village Hall, we note that, in recent cases, the Supreme Court has employed the term "limited public forum" to refer to a forum that the state has reserved "for certain groups or for the discussion of certain topics"; the Court has stated that, in such forums, any restriction must be viewpoint-neutral and reasonable in light of the purpose served by the forum. Good News Club v. Milford Cent.
Sch.,
of Va.,
Plano Indep. Sch. Dist.,
As our analysis will indicate, we believe that the Village violated this principle of viewpoint neutrality in denying access to the plaintiffs, discrimination that is impermissible regardless of forum status.
B. The NDP Assembly as a "Civic Program or Activity"
The Village determined that the NDP assembly did not have as its primary purpose providing a "civic program or activity." A number of Village officials defined the term "civic program or activity" in a similar manner, declaring that it referred to an event focused on citizens and their relationship with government or the manner in which they are governed./6 The district court held that this definition was sufficiently clear that the Village could apply the "civic program or activity" requirement in a viewpoint-neutral manner, and the parties do not dispute this proposition on appeal./7
However, the Village has construed the term "civic program or activity" to exclude categorically any event that involves religious prayer and worship.
The Village believes that, even if the stated purpose and actual focus of an event relates to citizens and their *11 government, that event is transformed into a "religious activity," not a civic one, if it involves prayer and worship activities. The district court ultimately agreed with the Village’s position, holding that "religious prayer services are inherently non-civic in content" and that the use of prayer transforms even otherwise secular topics into religious subject matter. R.103 at 10./8 As we have noted, the Village’s exclusion of the NDP assembly from the Village Hall must at least be reasonable in light of the purpose served by the forum and viewpoint-neutral./9 With respect to viewpoint neutrality, the government may exclude a speaker [i]f he wishes to address a topic not encompassed within the purpose of a forum, or if he is not a member of the class of speakers for whose especial benefit the forum was created, [but government] violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.
Cornelius,
In light of this standard, we must respectfully disagree with the district court’s determination. We believe that the NDP assembly is a "civic program or activity," as the Village has defined the term, and that the Village’s denial of the plaintiffs’ application to use the Village Hall constitutes viewpoint discrimination. In adopting the philosophical and theological position that prayer, the singing of hymns and the use of Bible commentary can never be "civic," the Village has discriminated against the speech of those of its citizens who utilize these forms of expression to convey their point of view on matters relating to government.
The Supreme Court’s recent decision in
Good News Club v. Milford Central School,
Leaders also encouraged children to
accept Jesus Christ as their savior and
made use of prayers to convey their
message at various times. See Good News,
The Supreme Court reversed that
decision. Noting that the school
interpreted its policy to include
discussion of moral and character
development, and that the Club’s meetings
did address such topics, the Court found
that the school engaged in impermissible
viewpoint discrimination by excluding the
Club on the ground that its activities
were religious in nature. See id. at
2101. The Court compared the case with
that of Lamb’s Chapel v. Central Moriches
Union Free School District,
at 2102.
As did the school in Good News, here the Village attempts to distinguish between the discussion of permissible subject matter (here, civic issues) from a religious perspective and the use of prayer and religious instruction or worship to discuss or convey a message regarding such subject matter. As the Supreme Court has noted, this is a distinction without a real substantive difference. See id. at 2101; Widmar v.
Vincent,
The notion that religious prayer and worship is not properly viеwed as a method of discussing civic subject matter *14 is belied by our nation’s long tradition of using those forms of expression to inform governmental action. From George Washington’s invocation of prayer in his first inaugural address, see Lee v.
Weisman,
Chambers,
The civic nature of the NDP assembly as рart of that well-established practice is particularly evident. The event was a part of a national observance designed to afford citizens who believe that prayer is an important component of civic obligation the opportunity to discharge that obligation by praying together for the welfare of their country. Indeed, it is a day designated for this purpose by Congress, see 36 U.S.C. sec. 119, and recognized each year by the President in a proclamation. In his application for the 1999 NDP event, Mr. DeBoer listed the purpose of the assembly to be "Prayer for community, state and national leaders," R.80, Ex.A, and the transcript of the event demonstrates that its intent was to pray for and discuss civic concerns-- those matters relating to the citizenry and their government.
Indeed, were the Village to enforce a
Use Policy that required it to
distinguish between speech from a
religious viewpoint and religious prayer,
instruction or worshiр, a review of such
distinctions, the Supreme Court has indi
cated, ultimately would be beyond a
court’s competence to administer. See
Widmar,
Rhode Island,
Such scrutiny inevitably would entangle
the Village with religion to an
impermissible degree. See Widmar, 454
U.S. at 269-70 n.6 (noting that such
inquiries ultimately would require the
state "to inquire into the significance
of words and practices to different
religious faiths, and in varying
circumstances by the same faith"); see
also Good News,
226, 248, 253 (1990). Indeed, the
Village’s attempt to parse the 1999 NDP
assembly into such categories on a line-
by-line basis demonstrates the futility
and the intrusiveness of such an
approach. Such monitoring would be "far
more inconsistent with the Establishment
Clause’s dictates" than would the
Village’s provision of the Village Hall
on a religion-blind basis, so long as an
activity otherwise met its "civic program
or activity" requirement. Rosenberger,
Religious expression holds a place at the core of the type of speech that the First Amendment was designed to protect.
See Capitol Square Review & Advisory Bd.
v. Pinette,
Indeed, the Supreme Court’s precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. Indeed, in Anglo- American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.
Id. (internal citations omitted) (emphasis in original). In barring the plaintiffs from access to the Village Hall, the Village discriminated against the plaintiffs based on their religious viewpoint, a violation of the First Amendment’s mandates.
C. The Other Challenged Requirements of the Use Policy
1. The "Promote or Espouse" Requirement The district court also determined that *16 the Use Policy’s requirement that a proposed event "not be based on or . . .
promote or espouse the philosophy, ideas or beliеfs of any particular group, entity, or organization" was unconstitutionally viewpoint- discriminatory on its face. The Village has interpreted this phrase to require that "a qualifying civic program must accommodate various viewpoints on the civic topic," Appellees/Cross-Appellants’ Br. at 46; therefore, a group may not use the Village Hall to discuss a "civic" topic unless it allows all points of view to be expressed, even those antithetical to its position on that topic. The Village determined that the NDP assembly violated this requirement because it promoted a particular viewpoint exclusively--one that extolled the benefits of prayer./12
The district court held that such a requirement undermines the concept of viewpoint neutrality because the Village is not acting with indifference to the viewpoints of speakers in its forums, but instead forces those speakers to alter their speech to include viewpоints with which they do not agree. It concluded that this requirement "smacks of government management of speech" and therefore "contradicts the fundamental First Amendment viewpoint neutrality principles by which the Village claims to be abiding." R.66 at 10.
We have noted that the government
engages in viewpoint discrimination when
it denies access to a speaker solely to
suppress the point of view he espouses on
an otherwise includible subject. See
Cornelius,
is presumed to lie beyond the government’s power to control," and "when dissemination of a view contrary to one’s own is forced upon a speaker . . . the speaker’s right to autonomy over the message is compromised"). As the district court noted, the First Amendment’s requirement of viewpoint neutrality emphasizes that the government should be indifferent to a speaker’s viewpoint, not that it mandate that "no viewpoint or all viewpoints be expressed." R.66 at 10.
Most frequently, governmental control of
freedom of expression involves the
government’s affirmative act of
forbidding expression on a certain
subject through censorship. However, as
the district court aptly recognized, gov
ernmental restraint on freedom of
expression "need not fall into familiar
or traditional patterns to be subject to
constitutional limitations on
governmental powers." Miami Herald Publ’g
Co. v. Tornillo,
at 715. Nor can it force a speaker to tailor its speech to an opponent’s agenda or respond to an opponent’s arguments when it might prefer to be silent. See Pac. Gas & Elec. Co. v. Pub. Utils.
Comm’n,
Consequently, the speaker has the right
to tailor the speech; the one who chooses
to speak also chooses what to say. See
Hurley,
2. The "Benefits the Public as a Whole" Requirement
Lastly, the district court determined that the requirement that an event be a civic program or activity that "benefits the public as a whole" was facially unconstitutional because it vested the Village Clerk with unbridled discretion in violation of the Free Speech Clause.
"It is well established that where a
statute or ordinance vests the government
with virtually unlimited authority to
grant or deny a permit, that law violates
the First Amendment’s guarantee of free
speech." MacDonald v. City of Chicago,
3791 (U.S. June 11, 2001) (No. 00-1839).
Where virtually unlimited discretion exists, "the possibility is too great that it will be exercised in order to suppress disfavored speech." Id.
(quotation marks and citation omitted);
see also City of Lakewood v. Plain Dealer
Publ’g Co.,
Any regulations governing a speaker’s
access to a forum must contain "narrow,
objective, and definite standards" to
guide a governmental authority, so that
such regulations do not operate as a
prior restraint that may result in
censorship. Shuttlesworth v. City of
Birmingham,
Although such regulations need not have "perfect clarity and precise guidance," Ward v. Rock Against Racism, 491 U.S.
781, 794 (1989), the Supreme Court has
struck down those that do not provide
principled limits to guide the decisions
of government officials. For example, in
Shuttlesworth v. City of Birmingham, 394
U.S. 147 (1969), the Court found that a
Birmingham ordinance conferred unbridled
*19
discretion when it required the city
commission to issue a parade permit
unless in "its judgment the public
welfare, peace, safety, health, decency,
good order, morals or convenience require
that it be refused." Shuttlesworth, 394
U.S. at 149-51 (noting that the ordinance
made the "peaceful enjoyment of freedoms
which the Constitution guarantees
contingent upon the uncontrolled will of
an official" (internal quotation marks
and citation omitted)). Additionally, in
City of Lakewood v. Plain Dealer
Publishing Co.,
We agree with the district court’s decision that the "benefits the public as a whole" requirement cannot survive constitutional scrutiny. The Use Policy does not contain any further definition of this phrase to give assistance to the officials who must interpret its meaning.
Unlike those regulations that this court has found not to grant unfettered discretion, the Village’s requirement provides no concrete standards or guideposts by which Village officials can gauge whether an event satisfies this precondition to the exercise of First Amendment rights./13
Moreover, when asked to explain what this requirement means, the Village has provided confusing and conflicting answers. In its appellate brief, the Village at times suggests that the requirement means the same thing as the "civic program or activity" requirement and is superfluous. At other times it explains that the phrase is a "clarifying limitation" upon the "civic program or activity" requirement, explaining that the use in question must be a civic program or activity that is "broad based and of general public interest." Appellees/Cross-Appellants’ Br. at 42-43.
Village Attorney Heise also at times explained that the requirement would be met if an event "related to government" and therefore was civic in nature. R.35, Ex.5 at 55. However, he also stated that Mr. DeBoer’s application was rejected under this requirement because it was not civic and because "it appeals to a segment of the population rather than the population generally." Id. at 45-46.
Perhaps Village Clerk Sandra Sokol best summed up the confusion over this requirement--when asked its definition, she stated, "Well, if I really knew the answer to that question, if there were an answer to the question, I’d be pretty special." Id., Ex.6 at 50. Ms. Sokol went on to suggest that the requirement would be met if an event were open to everyone- -a definition that would make it superfluous to the first prong of the Use Policy, which requires that events be open to all Village citizens. Ms. Sokol later explained that an event does not meet the requirement if "all [view]points are not being shown," id. at 52, a statement that suggests yet another meaning, one that would appear to amount to the same thing as the "promote or espouse" requirement./14
Therefore, the requirement is not given structure or substance by any written standards and its meaning escapes even the Village officials charged with administering and interpreting the Use Policy. Indeed, one Village official essentially admitted that the term was undefinable. It may be, as the Village’s brief and Mr. Heise suggested, that the requirement has independent meaning and is used to deny access to civic activities that, in the unfettered judgment of municipal officials, do not appeal to or benefit a significantly large section of the Village’s population. It is simply unclear as to how the Village could or would make that determination, one that would by necessity require it to place a particular value on the nature of the speech at issue. As a result, we agree with the district court’s opinion that the ambiguity in the "benefits the public as a whole" requirement provides too great a risk that it could be used to engage in prohibited censorship of speech.
Conclusion
For the foregoing reasons, we reverse the district court’s decision that the Village did not engage in
unconstitutional viewpoint discrimination when it determined that the NDP assembly was not a "civic" event as defined in the Use Policy. However, we affirm the district court’s decision that the "promote or espouse" requirement and the "benefits the public as a whole" requirement are unconstitutionally infirm. The plaintiffs may recover their costs in this court.
AFFIRMED in part, REVERSED in part FOOTNOTES
/1 The Village clerk’s office had the responsibili- ty of administering the Use Policy. Village officials explained in detail how this process worked. If an application clearly violated the Use Policy, senior administrative clerk Jan Jankowski or Village Clerk Sandra Sokol would deny that application immediately. If, however, the Village clerk’s office had any question as to whether an event met the Use Policy’s require- ments, Ms. Sokol would confer with the Village’s legal department, led by Village Attorney Raymond Heise. Ms. Sokol invariably accepted the legal department’s interpretation as to whether a group satisfied the Use Policy’s mandates and enforced the policy accordingly. With regard to the plain- tiffs’ applications to use the Village Hall, Ms. Sokol stated that the decision to deny those applications was made not by her, but by the village president in conjunction with the Vil- lage’s legal department.
/2 The plaintiffs claim that, although they were allowed to use the Village Hall during these years, they encountered some resistance from village government. They claim that, in 1993, the village manager initially denied their applica- tion because the NDP assembly was a "religious" event, but after receiving a letter from plain- tiff Martin DeBoer’s counsel, eventually allowed them access. Additionally, they claim that, after the 1994 assembly, Ms. Sokol prepared a memoran- dum stating her objection to the plaintiffs’ use of the Village Hall on the same ground.
/3 In his 1997 application, Mr. DeBoer listed the
meeting’s purpose as "Prayer for community,
state, [and] national leaders." R.35, Ex.1, Ex.D.
In his 1998 application, Mr. DeBoer listed the
meeting’s purpose as "Prayer." Id., Ex.1, Ex.F.
/4 The plaintiffs also contest the district court’s
*22
decision to grant the motion for reconsideration
under Rule 60(b) on the grounds of newly discov-
ered evidence--the transcript of the 1999 NDP
assembly. We review a district court’s decision
to grant or deny a Rule 60(b) mоtion for abuse of
discretion. See Tobel v. City of Hammond, 94 F.3d
360, 362 (7th Cir. 1996). We do not believe the
court abused its discretion in considering this
new evidence. However, as this opinion will
demonstrate, even when taking into account the
content of the 1999 NDP assembly, we believe that
the plaintiffs have demonstrated that the chal-
lenged aspects of the Use Policy violated their
constitutional rights. As a result, we shall
proceed directly to the merits of those issues.
/5 See, e.g., AETC,
/6 For example, Village Attorney Heise defined a civic event as one "related to a citizen’s rela- tionship with government." R.35, Ex.5 at 41. Village Clerk Sokol defined the term as an event that "has to do with the government and its citizenry." Id., Ex.6 at 44. Jankowski, the senior administrative clerk, defined "civic" as referring "to the relationship between the citi- zens of Oak Park and the manner in which they are governed." Id., Ex.4 at 32.
/7 The court noted, for example, that the Village’s definition of "civic" was in accord with the dictionary definition of that term as meaning "’of, relating to, or belonging to a city, a citizen, or citizenship.’" R.66 at 12 (quoting Webster’s II New Riverside University Dictionary (1984)). The court also found that, prior to this litigation, the Village had applied this require- ment in line with its stated definition by grant- ing access to candidates’ forums for local elec- tions and a congressman’s town hall meeting, but denying access to, аmong others, the Oak Park- River Forest Symphony Orchestra, Ameritech and Dean Witter Investment Services.
/8 More particularly, the court also found that the 1999 NDP assembly itself was non-civic because it *23 contained a number of hymns, discussion regarding biblical passages and "the church itself" and prayer invoking the names of God and Jesus Christ. R.103 at 7-8.
/9 As to the reasonableness of the "civic program or activity" requirement, the district court found that "[n]o one doubts that limiting the public’s use of the Village Hall to programs or activities of a civic character" was a reasonable restric- tion that the Village was entitled to make. R.66 at 6.
/10 The Court also noted that the school’s denial of
access to the Club was no different than a
university’s denial of funding to an otherwise
eligible student organization on the ground that
the organization published a newspaper from a
Christian perspective that challenged Christians
to "’live, in word and deed, according to the
faith they proclaim and . . . encourage[d] stu-
dents to consider what a personal relationship
with Jesus Christ means.’" Good News Club v.
Milford Cent. Sch.,
/12 See, e.g., R.35, Ex.5 at 47 (deposition of Ray- mond Heise) ("Well, they’re based on a belief in prayer. They express a . . . viewpoint that espouses prayer, and that is exactly what we’re trying to avoid is espousing particular points of view. . . . Prayer, as in praying for government, promotes prayer. It espouses a view in prayer as a value."); id., Ex.6 at 125 (deposition of Sandra Sokol) (answering "Yes" when asked "And is *24 the way in which [the NDP assembly] failed to meet [the "promote or espouse" requirement] because it promoted or espoused the philosophy of religion?").
/13 See MacDonald v. City of Chicago,
/14 Lastly, in seeming contrast to Mr. Heise’s expla- nation that the requirement is not met unless an event appeals to the population generally, Jan- kowski stated that, in his opinion, the require- ment was not concerned with whether there was or would be any public interest in a particular event.