In Freedom from Religion Foundation v. Abbott, 2021 U.S. Dist. LEXIS 104950 (WD TX, May 5, 2021), on remand from the 5th Circuit, a Texas federal district court issued a declaratory judgment and an injunction barring state officials from excluding FFRF's "Bill of Rights Nativity Exhibit" from display space in the state capitol building under now-revised rules. The court said in part:
Defendants violate the Foundation's First Amendment rights and engage in viewpoint discrimination as a matter of law when they exclude the Foundation's Exhibit based on the perceived offensiveness of its message.
The court however rejected plaintiff's claim that the state has unconstitutional unbridled discretion under the current rules.
