Courting pop opinion has long been a dangerous road in New York City, given that the cops wield enormous influence, but that the denizens of the city are otherwise relatively progressive as long as it doesn’t get in the way of happy hour. This meant Mayor Bill de Blasio had to carefully thread the needle in commanding a hiatus of good times due to the threat of COVID-19. After all, the protests must go on.
Mayor Bill de Blasio has banned large gatherings in the city until the end of September, saying, “We just can’t have that while we’re focusing on health right now.” But he’s making one big exception: Black Lives Matter protests.
“This is a particular moment in American history where 400 years of oppression, 400 years of racism are being addressed in a very, very powerful way that can’t compare to anything else,” he says, “and people’s voices needed to be heard.”
As much as the passionate will explain, emphatically if not with physical violence, the critical importance of their right to protest, you can’t do this. De Blasio can’t favor one viewpoint over others, no matter how passionately you believe, which is among the many reasons why progressives would like to reimagine the First Amendment to protect only speech and ideas they approve. After all, they’re the protectors of justice and decency, and they’ll burn you down if you question their righteousness.
But when Bill came up with the brilliant idea to paint “Black Lives Matter” on Fifth Avenue in front of Trump Tower (Hah! Take that, Darth Cheeto!!!), he opened up the public avenues to private expression. Bet he never thought that could happen.
When a white couple in Martinez, California, painted over a “Black Lives Matter” mural (why it’s called a mural is unclear), they were arrested for a hate crime. In Vancouver, BC, a car left a tread mark on a “pride” rainbow painted on the road over which cars traveled. You’ll never guess what happened then.
In the minds of many, Black Lives Matter is distinct from all other political causes. There is a fair argument to be made that America’s “original sin” of slavery distinguishes the political message of BLM from all others, making it sui generis and worthy, if not mandatory, of expression on public thoroughfares where it would not be for any other political message.
But the Constitution doesn’t work that way.
Smartly done, eliminating any objection for size, color, font or location. The only difference is the content of the message. The First Amendment prohibits the government from favoring one message over another, requiring it to be content neutral, And the message itself is positive, and clearly inoffensive. But it is political.
If BLM is cool, then how can de Blasio discriminate against empowering women?
But that’s just the next baby step, which will eventually reach the National Rifle Association, (“Protect Your Right To Keep and Bear Arms”) and, eventually, NAMBLA (“Love Knows No Bounds”?) on the heels of the Communist Party (“Workers of the World Unite”). Commercial speech is different, but these are all political views and just as entitled, under the Constitution, as BLM to a spot on Fifth Avenue. Why not?
Obviously, this presents a problem. Not so much for the unduly passionate, who won’t be shaken from their belief that Black Lives Matter exists on a different plane from all other political speech that immunizes it from all constitutional scrutiny, plus the Constitution is just a worthless rag created to protect racist old white men anyway, so who cares what it says, but for the courts and the rest of us who aren’t prepared to trash the Constitution when it gets in the way of the woke.
Now that Bill de Blasio has opened up Pandora’s Avenue, what will he do? Black Lives Matter has already been painted on Fifth, so he can’t make that disappear. The deed is done. He can just ignore the request by Women for America First, letting it languish and compelling them to sue for relief. Will they sue or will they let it slide?
Any court worth its beans is going to find that same injustice in an effort to ban any large gathering that’s expressing or celebrating almost anything — ethnic or neighborhood pride, say — as long as the mayor is explicitly permitting mass-gathering “speech” that he deems important.
The law couldn’t be more clear: Elected officials don’t get to discriminate in that way; de Blasio looks like a bigot, or an idiot, for trying.
To be fair, nobody likes de Blasio in New York City, where he was spanked by the cops at the start of his tenure and has neither been a bold enough ally to social justice to attain the support of progressives nor hard enough on the woke to be the hero of the harsh. It’s not that he’s caught in the middle exactly, as he holds no moderate political philosophy, but rather that he tries to play both sides, but does so poorly.
But will de Blasio be tarred as a bigot (or an idiot) for trying? It’s not as if there’s no precedent for favoring one group over another on Fifth Avenue.
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You write: “In Vancouver, BC, a car left a tread mark on a ‘pride’ rainbow painted on the road over which cars traveled.”
SHG, it wasn’t just a car.
It was Ford Mustang. That’s violence (and Detroit’s ultimate expression of crap). I fail to see how you missed this tip off. Most prideful Prius owners would have noticed in a nanosecond.
Disappointed.
It’s not a bad looking pony.
And then they came for Wicked Pickett…
How is painting over the mural a hate crime? I can understand charging them for vandalism. But if the argument is that the BLM slogan is so inherently racial that any attack on it is obviously motivated by a hatred for black people and tantamount to an attack on them, like the way that drawing a swastika on a synagogue clearly isn’t just writing funny symbols on a wall, then I don’t understand how tearing down statues of Washington or Columbus and writing “f*** white people” on them isn’t a hate crime or how vandalizing statues honoring veterans (which many forget are a protected class) with political slogans isn’t a hate crime either.
Or you know the answers to all your “questions” but fail to understand why the inherent hypocrisy fails to give the unduly passionate pause. The answer is that they’re unduly passionate.
True. Maybe we are going to get a follow-up to Wisconsin v. Mitchell and Virginia v. Black in the coming years; the prosecutions are quite selective.
Agree with your general assessment of deBlasio, but I’m not sure about this particular case. This is not government allowing one org’s slogan on license plates but not another’s. It’s government deciding that it likes a slogan, and printing it on government property. Government isn’t required to be neutral in its own speech, is it? Or am I missing something?
While I have serious doubts about whether this would be acceptable as government speech (would it be acceptable for the government to decide to print its fav slogan on all absentee ballots, “Vote Republican Or Die”?), I don’t think this is government speech at all. Was a law passed? Were there public hearings? What process occurred that established that the govt, rather than de Blasio, approved it?
Just because de Blasio was out there painting it doesn’t make it government approved, just de Blasio approved. Is that enough?
Like it or not, I think deBlasio is a part of the Government; if he said do it, that means it’s de facto government approved. Why would a law need to be passed, or hearings held for something to be considered government speech? Or can we force President Trump to tweet things, if, as far as I known, there’s been no law passed or hearings held regarding the drivel he’s been spewing on his official government twitter account.
I like the “Vote Republican or Die” hypothetical. As absurd as it would be, as a matter of government speech (and not with respect to voting rights and other such laws and regulations), it may be ok, and is a good illustration of how far I think this goes. Are any limits on what it considered “acceptable government speech?” I’m not aware of any, but I’m no expert on the subject.
Ah. de facto.
Ok, drop my stupid word play. I still don’t understand how it’s not government speech, or if there is a limit on what is “acceptable” government speech.
Not trying to be snotty or ‘win’ an argument here, just trying to get a better understanding of the law such as it exists.
To the extent there’s law, it’s Pleasant Grove v. Summum, which isn’t really analogous (sorry Jay and Eugene). There, the city council made a deliberate official determination to allow 10 Commandments in a park, which made it official govt speech.
Here, we know essentially nothing about how this happened. Just because BdB did a photo op with a paint brush doesn’t make it officially anything. And now we’ve gone deep enough down this rabbit hole, so let’s end this here.
Was he doing it in his official role as mayor or as a private citizen? He still gets the right to be stupid outside his job as mayor just like everybody else.
More important is the fact that the city council is letting it stay as this opens the door for other groups to request to do the same thing, which has already happened.
See Scott? I can learn something here.
That de Blasio helped paint it doesn’t make it government speech. A bunch of other nice folks were out there painting too, and they’re not government officials but activists. It’s entirely unclear that this has anything to do with government other than it was permitted.
And I might add, having put this on a street, it’s very much a limited public forum because they made it one.
As a purely legal matter (I know I’m going a bit orthogonal here), I assume the City’s only even marginally credible argument will be that BLM on the street is different because it’s government speech (hey, the mayor was out there painting) and the pavement isn’t even a limited public forum.
I don’t see SCOTUs buying it, but the lower courts, I’m not so sure.
Why does de Blasio hate women?
Eugene volokh wrote about this over a month ago. Governments are permitted to give voice to one viewpoint over another. Pleasant Grove City v. Summum (2009).
Look at you, you closet libertarian. And yet, just because Eugene thinks the 10 Commandments case addresses it doesn’t make it so. He’s just a prawf.
If “just a prawf” isn’t hate speech, I don’t know what is.
A hate crime is a thought crime. The real hate crime is to not love big brother.
“He had won the victory over himself. He loved Bill de Blasio.”
SJ could be a thoroughfare name* and your efforts within could land you a resolution on a unanimous consent agenda in several or at least one jurisdiction somewhere….
Is that what you want esteemed one? If so I have a list of folks that can make that happen for you.
*Simple Justice: Avenue, Circle, Place, Road, HWY, Street, Boulevard, Crescent, Terrace, Row, Way, Lane,etc..What’s your pleasure?
Don’t look at me. I haven’t lived in NYC since Lindsay was mayor. These hi-tech reply buttons are too newfangled.
Get off my lawn. (Oh, wait, I’m on your lawn. Hmmm.)
Good looking guy, that Lindsay. Not like Koch, who looked like Frank Perdue.
Interesting conundrum BdB created for himself. It’s a shame that commenters would rather talk bullshit collateral nonsense than the point of the post. And who is n00b JACOB ZELMANOVITZ and why must he shout?
I feared it would go orthogonal, but hoped someone might (you, maybe?) go for the big issue. As for Jacob, beats me, but seems like a nice enough fella even if he’s rather loud.
Sorry – dratted autocomplete. Seems like I’m always screwing something up when I go on social media. Rest assured, I do this a lot less frequently when I file court papers.
Stercus accidit.