A group called “Women for America First” didn’t so much object to the painting of Black Lives Matter on a New York City street. They just wanted their turn. After all, if one political point of view gets to use Fifth Avenue to express its message, how can the government deny others the same opportunity? Southern District of New York Judge Lorna Schofield said no.
The surfaces of public streets are not traditional public fora for the dissemination of private speech. Plaintiff argues that public streets are public fora that “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Pleasant Grove City, Utah v. Summum (2009). Plaintiff accordingly concludes that the government must narrowly tailor any content-based restrictions of speech to serve a compelling government interest.
This argument is unavailing. Plaintiff does not seek to congregate and share messages with the public in New York City streets. Plaintiff seeks to paint a message on New York City streets. The United States Supreme Court’s characterization of a public street as a place of assembly where citizens can communicate, is undeniably distinct from an endorsement of the use of the face of a street—usually reserved for transportation-related guidance—as a message board for private speech. This conclusion is underscored by Local Law § 10-117(a), which prohibits writing, painting and drawing on New York City streets, absent express permission….
While this seems entirely uncontroversial, it similarly seems to deliberately avoid the issue. When BLM was painted on the street, there was no official approval, no permit issued, no City Council authorization. It was done because, well, it just was. Mayor Bill deBlasio supported it and joined in the painting of a popular theme at the moment.
As an alternative argument, Plaintiff contends that, by permitting the Murals, Defendants opened up New York City streets as designated public fora and triggered an obligation to permit similar expression of different viewpoints absent a compelling reason for denial. A designated public forum “exists where government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” The government, however, does not create a public forum—of any variety—”by inaction or by permitting limited disclosure.” In addition, the government does not create a public forum when it engages in government speech.
Similarly uncontroversial is that government speech is different than public speech, and doesn’t create a public forum. But was this government speech? Does a mayor’s personal feelings turn a public message into a government message? Eugene Volokh takes the position that Judge Shofield’s analysis is “quite right,” and that since government can express whatever it likes, and can adopt speech and turn it from public to government, and thus confer the protections afforded government speech to public speech, the BLM is covered and New York City need not give any other speech space on its streets.
Various cities are painting “Black Lives Matter,” “End Racism Now,” and similar messages on city streets. Does that create a “public forum” where everyone would have the same right to do so?
No. In Pleasant Grove City v. Summum (2009), the Court recognized that a city is free to put up certain monuments in its parks—and to accept selected monuments from private groups—without having to put up or accept other monuments. Such monuments are government speech, and the government is free to discriminate based on viewpoint in choosing what messages to affirmatively promote this way:
A government entity has the right to “speak for itself.” “[I]t is entitled to say what it wishes,” and to select the views that it wants to express.
An initial problem stems from the way Eugene phrased his question: Are “cities painting Black Lives Matters” or are individuals and private organizations doing so? If it’s cities, meaning that these are officially approved acts by a governmental entity, then the answer goes one way. If these are individuals, then it doesn’t. To lump it together as “cities,” however, avoids the problem, and Judge Schofield’s decision doesn’t do much to aid in the distinction.
What if some group decided to paint “Radical Islam Is Evil” in the middle of the night of September 12th, and America’s Mayor was all for it?
In addition, the pleadings suggest that Defendants intended the Murals to be government communication. Tweets from the Mayor’s office confirm that suggestion. For example, the June 15, 2020, Tweet explains that the “Black Lives Matter” message will be shared all summer and notes that the Mayor’s office intends to make the Fulton Street block pedestrians-only and to coordinate with the MTA regarding transit. In addition, the June 19, 2020, Tweet explains that Defendants were “not just painting the words #BlackLivesMatter on streets,” and instead, were “sending a message that these are our values in New York City.”
At any given moment in time, a private expression placed on a public street or building may very well send a message that a public official supports, or at least lacks the political will to oppose. It may be that in retrospect, it wasn’t a great idea or it may be an expression in which people will take great pride in the future. But is the seizure of public property for favored private expression, whether due to the heat of the moment or the peccadilloes of a public official who has no lawful authority to give Fifth Avenue to one group to use but not another a sound application of law?
The question shouldn’t have anything to do with whether Black Lives Matter is a good and worthy public message, although few will be able to divorce their feelings about this from the law. The question is whether we gloss over the nitty gritty of what constitutes official governmental speech when we like the message, because what people, including a mayor, like at any given moment doesn’t mean that the same rules don’t apply to disfavored speech.