March 25, 2023

The case, filed Monday, is Kristi L. v. National Air & Space Museum (D.D.C.). Some allegations:

60. Defendant Jane Doe 2 and Defendant Jane Doe 3 … stopped Plaintiffs … and instructed them to remove their hats….

62. As Plaintiffs … walked by Defendant Jane Doe 2 and Defendant Jane Doe 3 to continue into the exhibit, the Does used expletives in reference to the students, some of whom are minors, including J.K., stating: “The f—king pro-life. What a bunch of s—t.” …

63. At approximately 4:40 pm, several students of Our Lady of the Rosary School, including Plaintiffs …, were sitting against the escalator wall outside of the Wright Brothers Exhibit when they were once again approached by a NASM security officer dressed in dark clothing and black beanie/hat. Defendant John Doe 2, approached the students and had a big grin on his face and was rubbing his hands together as he said, “Y’all are about to make my day.”

64. Defendant John Doe 2 continued to address Plaintiffs Patrick M., Kathleen K., Jane K., J.K., and T.L., along with their fellow students by stating, “You’ve been told multiple times to take your hats off, and you have not taken them off. You need to take them off or leave.”

65. Plaintiffs Jane Kihne and T.L. pointed out other NASM visitors unrelated to Plaintiffs’ group who were wearing hats and questioned why they were allowed to wear hats while Plaintiffs were being ordered to remove theirs.

66. Defendant John Doe 2 stated that Plaintiffs’ hats were “political statements,” and that they were “not promoting equality.”

67. Plaintiff Jane Kihne responded by pointing out other individuals freely moving about the museum wearing expressive statements, such as PRIDE masks, as well as beanies and other head attire.

68. Plaintiffs told Defendant John Doe 2 that they had a constitutional, First Amendment right to wear their hats. Defendant John Doe 2 stated, “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 Plaintiffs that they must remove their hats because the museum was a “neutral zone,” and that the First Amendment “does not apply here.” …

78. Approximately 3 minutes after entering NASM, Plaintiff Christopher Morris and others in his group were approached by Defendant John Doe 2 who said: “Excuse me. You need to take off your hats. We are a museum that promotes equality, and your hats do not promote equality.” …

These are of course just allegations in a Complaint, but the Smithsonian has apparently admitted that the ejection was improper. (I hope to post a copy of their statement shortly.) Procedurally, that may affect who can be sued here and for what.

The substantive legal analysis, though, is simple. The inside of a government-run museum is a “nonpublic forum” in which the government as property owner can impose reasonable, viewpoint-neutral restrictions. A rule banning “fuck,” “shit,” etc. on clothing worn within the museum, for instance, might well be constitutional, since it appears viewpoint-neutral—even though content-based—and might be seen as reasonable.

But a rule, or an on-the-spot action by a government employee forbidding hats that supposedly “do not promote equality” is viewpoint-based, and thus can’t be applied to visitors even on nonpublic forum government property.

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