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Appeals Court Upholds District's Refusal to Air 'Jesus Tattoo' Ad

A federal appeals court has upheld a Texas school district's refusal to air a "Jesus Tattoo" ad on the video scoreboard of its large, high school football stadium.

A private religious group sought to run the ad featuring a shirtless, heavily tattooed Jesus Christ during football games in the Lubbock Independent School District as "a new way to share the Bible's teachings through contemporary marketing methods," as the group said in its lawsuit. (The ad in question was actually a still image that would appear on the video board, not the group's full-length commercial.)

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But the Lubbock district rejected the ad in 2013, saying the district would appear to be endorsing the religious message of the ad if it ran on the video scoreboard of Lowrey Field at PlainsCapital Park, the common football venue for Lubbock's four comprehensive high schools. The district also said the image in the ad would violate its policy against visible tattoos.

The private group, now known as Little Pencil Ministries (from a quote by Mother Teresa), promptly sued under the First Amendment, arguing that the school district accepted all manner of advertising for the stadium scoreboard and other athletic venues, including one from a Baptist church and one from a religious-based preschool.

A federal district judge in Lubbock ruled for the school district last May. In a March 13 decision in Little Pencil LLC v. Lubbock Independent School District, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously affirmed the lower court. 

The appeals court issued a very short opinion upholding "the thorough and cogent opinion of the district court."

So, let's go back to that "thorough and cogent" 2014 opinion of U.S. District Judge Sam R. Cummings in this very interesting case.

Cummings noted that the Lubbock district had opened up its athletic advertising opportunities to a wide array of non-school groups. At Lowrey Field, these have included a supermarket chain, Texas Christian University, Whataburger, Taco Villa, and Wentz Orthodontics.

At district basketball venues, where the available advertisements more along the lines of printed banners rather than the flashy video screen at the football stadium, the advertisers included Bethany Baptist Church, Full Armor Ministries, Chick-fil-A, and Just Kids Preschool, which was run by a church, the judge noted.

Cummings held that the relevant forum for a First Amendment analysis was the advertising on the stadium video scoreboard, not the district's entire athletic advertising forum. He held that the district had established a limited public forum for accepting advertising on the jumbotron to support athletic costs, not to establish a forum for all outside speech.

The judge went on to uphold the district's tattoo restriction as a rationale for rejecting the Jesus Tattoo ad, saying that was "reasonably related to legitimate pedagogical concerns."

Cummings next held that the Jesus Tattoo ad was a religious message that would put the school district in conflict with the First Amendment's prohibition against government establishment of religion.

The "ad is properly characterized as a proselytizing message designed to advance plaintiffs' sincerely held religious beliefs to the viewer," the judge said. Further, it was reasonable for the school district "to believe that running plaintiffs' advertisement on the jumbotron during Friday night football games could be viewed as [the district's] endorsement of the message, or at least carry the implication of support."

That is the decision Little Pencil, represented by the Alliance Defending Freedom, appealed to 5th Circuit and lost last week. But that is probably not the last we have seen of Jesus Tattoo.

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