IV. Public Officials Acting In Their official Capacities Have No First Amendment Right To Free Speech

Public officials have no right protected by the Free Speech Clause to engage in religious speech when acting in their official capacities. The right to free speech is a right owed to individuals in their personal capacities. The right does not extend to the right to take advantage of official positions to magnify and amplify one's speech.

Judge Moore was and is acting in an official capacity when he begins court sessions with a prayer and when he posted the Ten Commandments on his courtroom wall. No private individual could command attendance upon a prayer in a courtroom, and none could dictate the courtroom's furnishings. If prayer takes place in the courtroom, and if the Ten Commandments are displayed on its walls, it is because an official acting with the authority of the state has ordered that these things be done.

The cases in support of these principles are legion. Directly on point with regard to prayers at the beginning of the judicial day is ACLU v. Constangy, 947 F.2d 1145 (4th Cir. 1991), a case which speaks for itself.

Appellants argue that judicial prayers have a history as long as the legislative prayers upheld in Marsh v. Chambers, 463 U.S. 783 (1983). However, they in fact have shown only that some judges did pray at jury sessions for a short period of time after the founding of the Republic. They have not shown, and cannot show, that the practice of opening jury terms with prayer was and is continuously practiced in federal courts, or in the state courts of most states. In any event, Marsh applies only where the selection of prayers does not reflect any sectarian bias, County of Allegheny v. ACLU, 492 U.S. at 603, for it is the clear command of the Establishment Clause that one faith may not be preferred over any other. Larsen v. Valente, 456 U.S. 228, 244 (1982). The prayers in Etowah County have been uniformly and distinctly Christian Marsh is thus not available as a defense.

Over a dozen cases (collected in the margin) have reached this result with regard to public school and college teachers.⁽⁶⁾ They, like judges, command captive audiences, who may not be required to listen to prayer. Other government workers, too, are not permitted to use their official positions to advance their own religious views. This is true of administrators, Brown v. Folk County, 61 F.3d 650 (8th Cir. 1995); clerks, Kallas v. Department of Motor Vehicles, 560 P.2d 709, 8 Wash. 354 (1997); social workers, Goodwin v. Metropolitan Board of Health, 656 S.W.2d 383; Langoltz v. Picciano, 683 F.Supp. 1041 (E.D. Va. 1988), aff'd, 905 F.2d 1530 (4th Cir. 1990) (juvenile counselors); and court personnel, Kelly v. Municipal Court, 852 F.Supp. 724 (S.D. Ind. 1994), aff'd, 97 F.Supp 902 (7th Cir. 1996) (bailiff). If it is true of these employees, it is a fortiori true of judges, who enjoy far greater power than any of them.

While employees may engage in religious activities in the quiet of their own offices, Brown v. Polk County-Judge Moore may post the Commandments in his chambers -- they may not take advantage of their official positions to preach their views to citizens, whether through words or symbols. The special powers conferred on public employees may only be used for the legitimate purposes of government. Those purposes do not include the spreading of religious truths.

6. Helland v. South Bend Community School Corp., 93 F.Supp 327 (7th Cir. 1996); Feloza v. Capistrano US.D., 37 F.Supp 517 (9th Cir. 1994); Webster v. New Lenox School District, 917 F.2d 1009 (7th Cir. 1990); Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1991); Breen v. Reinkel, 614 F.Supp. 355 (W.D. Mich. 1985); Rhodes v. Laurel Highlands School District 118 Pa. Cmwlth. 119, 544 A.2d 562 (1988); Fink v. Board of Education, 65 Pa. Cmwlth. 320, 442 A.2d 837 (1982), app. dismissed for want of a substantial federal question, 460 U.S. 1048 (1983); La Rocca v. Board of Education, 63 A.D.2d 1019, 406 NYS. 2d 348 (2d Dept), app. dismissed, 46 N.Y 2d 770 (1978); Alaska O.A.G File No. 663-88-0573 (September 15, 1988); Lynch v. Indiana State University, 177 Ind. App. 176, 378 N.E. 2d 900 (1978) (college professor may not pray with students); Bishop v. Aronov, 926 F.Supp 1066 (11th Cir. 1991) (professor may not express religious views).