5th Circuit's Revised Opinion Again Allows School To Reject Jumbotron Ad of Tattooed Jesus

Last week in Little Pencil, LLC v. Lubbock Independent School District, (5th Cir., Sept. 23, 2015), the U.S. 5th Circuit Court of Appeals denied an en banc rehearing, but granted a panel rehearing, in a religious free speech case.  The panel withdrew its earlier brief opinion that merely adopted the reasoning of the district court and substituted an opinion that reached the same result-- dismissing the complaint-- but on somewhat narrower grounds.  At issue was a high school's refusal to display on its football field jumbotron an ad depicting a tattooed Jesus and a website URL, as part of a marketing concept using a new way to share the Bible's teachings. In its new opinion, the court s

We hold that the football field was a limited public forum and LISD’s content-based, viewpoint-neutral limitations were reasonable in the light of a Texas law against tattoo parlors serving minors and LISD policies against visible tattoos.... The plaintiffs' Establishment Clause claim fails because LISD may legitimately exclude the ad for its tattoo content without a "risk [of] fostering a pervasive bias or hostility to religion..."

The court also rejected due process, equal protection and free exercise claims.