“At some point — maybe only once in their life — everyone agrees with the ACLU,” Kent Willis, director of the Virginia chapter of the ACLU told the Washington Post.

Because at some point, each of us will manage to offend someone else with our freedom of expression, and the ACLU will be there to remind that person that there is no Constitutional right to not be offended. As a general rule, it’s the right to express “unpopular” views that needs a Constitution to defend it, but it’s good to have an occasional reminder that the principle applies across the board.*The ACLU sent a letter to the Board of Supervisors yesterday in advance of the public hearing, urging them to keep the Courthouse grounds open as a public forum for all who wish to erect a display. This puts the allegedly “liberal” group on the same side as Dick Black (who made a predictably kooky “War on Christmas” public comment) and Eugene Delgaudio, a detail that was lost on none of our local media.  

Since viewpoint discrimination is not an option on public property (and as much as certain parties might wish otherwise, they know better by now than to say it), the choice is between “all” who wish to express themselves, or “none.” I admit to having been on the fence about this one. The right to free expression is a fundamental liberty, as most of those advocating for the “all” position are pointing out. The best antidote to speech that offends is not censorship, but more speech. So when the Klan or another hate group inevitably demands the right to erect a display in the public square, that’s just the price of being a free society. There is no right to not be offended.

“We should all be supportive of preserving traditional town center forums,” says Willis in the ACLU letter. “They are not only an important part of our cultural and political heritage, but also of our ongoing vitality as a nation.”

And he’s right about that. But hold on – why the Courthouse? If the issue is having a forum in the public square open to all, why is it important to use the Courthouse when there are other centrally located public sites – like the Loudoun Government Center or the Leesburg Town Hall, which the Town Council has already offered?

As critical as the right to free expression is, there are other interests just as fundamental. Sometimes there’s a situation in which equally fundamental rights are in conflict – which is why then-Chief Justice nominee John Roberts’ remark that judging is just a matter of “calling balls and strikes” will go down as one of the more thoughtless and shallow in the history of judicial nominee hearings. If weighing such competing interests was so straightforward, we wouldn’t need that branch of government.

This decision happens to involve one of those competing interests situations, because one of the interests is equal justice. As a leader from one of our religious communities explained the other side of the argument to me, the Courthouse is different from other public spaces because it represents the principle that everyone (in theory, at least) will be treated equally under the law. Anything that could be a barrier to someone seeking justice (and that could easily take the form of a display expressing hostility to that person’s identity or very existence) doesn’t belong at a courthouse. There are faith communities that were invited, but chose not to participate in the interfaith holiday display two years ago, and the location at the Courthouse – not just any public space – is the primary reason.

Significantly, Judge Horne, whose decision years ago allowed the original display of the holiday creche, has asked for the judges to be “given the opportunity to consider, should they wish to do so, the impact of the use of the grounds on the operation of their Courts.” Supervisor Delgaudio cast the only vote this morning to deny that requested delay. My conclusion? He cares less about governance than about politics, or rather politicizing a conveniently inflammatory issue – which is nothing new. That conclusion is supported, robustly, by the fact that he and/or his aide were busily making phone calls all day exhorting his followers to attend the hearing, and the related facts that virtually every pro-display speaker was identifiable as a Republican activist, and that Suzanne Volpe was holding court in the back of the boardroom, bloviating about “putting God back in government.” In fact, the public hearing was indistinguishable from an LCRC meeting, minus the “moderate” wing.

So this is, notwithstanding the appearance of genuine constitutional issues, in practice about nothing but politics. Fortunately, there is a solution that addresses both competing interests. Apparently, when this came up last year Supervisor Miller suggested moving the whole shebang to a different public location. As noted earlier, the Leesburg Town Council has already said that if the courthouse grounds prohibition is reinstated the displays can be erected on the Town Hall grounds instead. An added benefit is that some voices excluded by choice from the courthouse location would join the public forum. This seems like a very reasonable compromise. For those for whom the issue is access to a public forum open to all (the ACLU position, and my position) this should be satisfactory. For those who are still unsatisfied, they will have the opportunity to explain why the expression of their views must be linked to the visible symbol of equal justice in our community.

* In fact, the ACLU is always neutral in upholding the principle of free expression, and applies it without regard to content. As a side note, this raises some interesting questions about the purpose of the sound-alike group “American Center for Law and Justice,” with its claim to be the only group defending the expressive rights of Christians. Since in reality the ACLU already defends the right to all religious expression in accordance with the Constitution, as we see here, what is it that the exclusive ACLJ is intended to do?