The case was filed on Monday Christie L. v. National Air and Space Museum (DDC). Some complaints:
60. Defendant Jane Doe 2 and Defendant Jane Doe 3 … stopped Plaintiffs … and ordered them to remove their hats… .
62. As Plaintiffs … to continue in Defendant Jane Doe 2 and Defendant Jane Doe 3 Exhibits, Dose used expletives in reference to students, some of whom were minors, including Zeke, saying: “The f–king pro-life. What a bunch.” S—t.” …
63. At approximately 4:40 p.m., several students from Our Lady of the Rosary School, including Plaintiff …, were sitting against the wall of the escalator outside the Wright Brothers exhibit when they were again approached by a NASM security officer dressed in dark clothing. and black beanie/hat. Defendant John Doe 2, approached the students with a big smile on his face and said, “Y’all are going to make my day.”
64. Defendant John Doe 2 continued to address Plaintiffs Patrick M., Kathleen K., Jane K., JK, and TL along with their fellow students, saying, “You’ve been asked to take off your hats several times, and you haven’t taken them off. You They must be removed or gone.”
65. Plaintiff Jane Kihne and TL pointed to other NASM visitors not related to Plaintiffs’ group who were wearing hats and questioned why they were allowed to wear the hats when Plaintiffs were ordered to remove them.
66. Defendant John Doe 2 states that plaintiffs’ hats are “political statements” and that they are “not promoting equality.”
67. Plaintiff Jane Keehn responded by pointing out expressive statements, such as PRIDE masks, as well as other persons freely walking through the museum wearing beanies and other headgear.
68. Plaintiffs tell Defendant John Doe 2 that they have a constitutional, First Amendment right to wear hats. Defendant John Doe 2 said, “I’m not taking away your First Amendment rights,” and that the museum is a “neutral zone.”
69. Defendant John Doe 2 then proceeded to inform the plaintiffs that they must remove their hats because the museum was a “neutral zone” and the First Amendment “does not apply here.” …
78. About 3 minutes after entering the NASM, Defendant John Doe 2 said to Plaintiff Christopher Morris and others in his group: “Excuse me. You need to take your hat off. We are a museum that promotes equality, and your hats don’t promote equality. ” …
These are, of course, allegations in a complaint, but the Smithsonian has apparently admitted that the ejection was improper. (I hope to post a copy of their statement soon.) Procedurally, this could affect who and what can be sued here.
The actual legal analysis, though, is simple. A “non-public forum” inside a government-run museum where the government as property owner can impose reasonable, viewpoint-neutral restrictions. A rule prohibiting “fake,” “shit,” etc., on clothing worn inside a museum, for example, may be constitutional, because it may be viewed as viewpoint-neutral—though content-oriented—and reasonable.
But a rule prohibiting an on-the-spot action by a public servant hat supposedly “does not promote equality” is viewpoint-based, and thus cannot be applied to visitors to public property in a nonpublic forum.