A&A: Are words chosen for tombstone protected speech or can a Public Cemetery District censor them?

Our local public cemetery district has adopted a policy (which I objected too) of requiring that monument makers first submit to the cemetery district manager the verbiage and artwork for any new benches, monuments, or headstones to gain approval before the cutting or sand blasting of the monument can begin. I ran into this rule headlong today when I tried to order a memorial bench and was told by the monument maker that the cemetery district manager would have to first see the artwork and approve the verbiage I wanted before the monument maker could move forward with making the bench. Incredulous, I obtained a copy of the letter they sent out to the monument maker.

It reads as follows.

“To whom it may concern:

”Effective immediately, please fax a rough draft of all the drawings/artwork for any Memorial Marker being made for South Kern Cemetery District, for approval prior to blasting. Please provide a signature line for acceptance of rough draft.”

”We reserve the right to refuse any markers with questionable signs, wording, symbols, or pictures.”

This seems to me to:

1) violate my right to free speech,

2) to be so vague as to be unenforceable, and,

3) leave the tastes of the cemetery district manager as the determining factor in acceptable community standards for the local cemetery.

I have no plan to submit anything tasteless because this will rest near the current graves of my son, niece, and brother-in-law. I also own parcels lots within 20’ of the location for wife, my ex-wife, her husband, and myself. I don’t feel that I or anyone else should have to knuckle under to something so over the top. As an example, the monument maker was previously told that he could not place dates important to one family on a monument, because the ’policy’ is that only headstones may have dates.

Am I missing something here or isn’t a public cemetery a place where free speech has little or no reason to be abridged? I don’t recall any court decisions in the matter, but I could have missed it.

A: Whether the restrictions on what one can place on a headstone are permissible under the First Amendment would depend, first, on the exact nature of the space at issue (in this case, the cemetery), as well as whether the restrictions at issue are content-based or content neutral. As to the “forum” analysis, government property is generally either a public forum, either by tradition or designation (i.e., sidewalks, parks) or a nonpublic forum.

In a public forum, conduct is protected by the First Amendment and can only be restricted if a high standard is met. In a non-public forum, which includes places not traditionally open to the public for speech or petition-related activities, restrictions need only be reasonable and are generally upheld. (The Supreme Court summarized this framework in the case Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).)

There are few decisions that discuss whether a public cemetery is a public or nonpublic forum. However, the decisions that I did locate seem to suggest that a cemetery would be considered a nonpublic forum. See Griffin v. Dep’t of Veterans Affairs, 274 F.3d 818, 820 (4th Cir. 2001) (national cemetery administered by the Veterans Association a nonpublic forum); Warner v. City of Boca Raton, 64 F. Supp. 2d 1272, 1291 (S.D. Fla. 1999) (cemeteries are clearly nonpublic fora as their purpose is not to exchange ideas, but rather to provide a place for its citizens to bury and honor their dead); Jackson v. City of Stone Mountain, 232 F. Supp. 2d 1337, 1353 (N.D. Ga. 2002) (fact that the city allows owners of burial plots to erect monuments or memorials on their plots does not transform cemetery into a public forum for the exchange of ideas).

The court in Jackson concluded that because a cemetery is a “nonpublic forum, the [government] is authorized to place certain restrictions on speech in the Cemetery, without a showing that the restrictions are narrowly tailored to effectuate a compelling government interest. Instead, in the case of a non-public forum, a restriction on speech may be upheld if the regulation is reasonable and viewpoint neutral.” Id., quoting Perry Educ. Ass’n, 460 U.S. at 49.

A regulation is viewpoint neutral so long as it does not suppress the speaker’s activity due to a disagreement with the speaker’s view, and a regulation need only be reasonable, not necessarily the most reasonable or the only reasonable limitation. Id. In other words, permissible restrictions in a nonpublic forum restrict only the time, place and manner of speech, and not its content.

Although the analysis from here is necessarily fact-specific, it is useful to consider a decision the Jackson case, which addresses speech in the cemetery context.

In Jackson, the court considered whether a provision that required that all work be approved in advance by the cemetery sexton was unconstitutional on its face “because it confers unbridged discretion on the sexton to approve work done on burial sites.” Id. at 1355.

In order to survive First Amendment scrutiny, a licensing scheme that gives a public official the power to decide whether to permit expressive activity must:

(1) contain precise and objective criteria for decision-making, and

(2) require prompt decisions. Id.

Reading the particular provision in connection with eight other paragraphs contained in the regulation that “pertain to details concerning construction and engineering type specifications,” the court dtermined that the provision as to the sexton’s power to disapprove work is “no greater than that power allowed him in [the other provisions that follow].” Id. at 1356.

The court, therefore, determined that he did not have unbridled discretion to disapprove monuments in conflict with the First Amendment. Two provisions that gave the sexton the power to approve work that could conceivably involve expressive activity — specifically, the power to allow for an exception to a prohibition against the erection of above ground vaults or stone enclosures, which could conceivably be construed to permit a cross, but not a Star of David — could “arguably delegate overly broad discretion to the decision maker.” Id.

However, those particular provisions were not at issue, so the court did not determine whether they should be severed from the regulation. Id. The court also considered whether the regulation, as applied (in this case, to a Confederate flag that was erected on a flagpole by the plaintiffs), was unconstitutional, but ultimately concluded that the city was free to adopt regulations so that they could make clear that they were not aligned with the viewpoint of the Confederacy. Id. at 1362.

“Whereas the display of Confederate flags on individual graves or the engraving of the battle flag on monuments constitutes private, protected expression that could not be confused by the public as an expression of allegiance by the City, itself, the display of a Confederate flag, flown from a tall, permanent flag pole, could suggest to the public that the City was holding itself out as a Confederate cemetery or that it was aligned with the viewpoint of the Confederacy. While the Court will assume that the City is free to espouse the latter viewpoint if it wishes, it is equally free … to adopt a message that the cemetery is intended to be a “tranquil and non-partisan” refuge.” Id.

As you can see, there may be other facts that affect the analysis. As a starting point, however, it may be that, absent other specific regulations that set forth guidelines for what may be permitted in terms of markers, monuments and benches, the district manager at the Kern cemetery has unbridled discretion to accept or reject a design in violation of the First Amendment. And even if there are specific guidelines, it would seem they would need to be applied without any reference to the speaker’s point of view (i.e., content neutral).

Even if the regulations do permit the district manager the authority to reject certain messages on the markers, this, too, may be unconstitutional, since, as the Jackson case suggests, what goes on a grave marker constitutes “private, protected expression.” As to the district manager’s discretion to approve verbiage and artwork that is engraved on a memorial bench, a court could consider, as it did in the Jackson case, whether the public might construe any such message as one that is support by the city itself, or whether it is the family’s private expression.

You may want to ask the district manager for the specific guidelines that he is using to approve or disapprove specific markers, monuments and benches. The lack of some guidelines would, as stated above, seem to suggest that his “right to refuse any markers with questionable signs, wording, symbols, or pictures” may be unconstitutional.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.