BLM Mural Held Government Speech

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.

11 thoughts on “BLM Mural Held Government Speech

  1. Councilman Keith

    There’s something vexing about a group of vigilantes defacing or acting illegally and then having an ex-post facto reckoning of the behavior to decide if they should be given summonses or a plaque & a key to the city.

    But, is there a difference between this illegal graffiti turned symbolic struggle mural being adopted as a form of public speech and previous forms, such as the Charging Bull, tourists flock to visit at Wall Street?

    Both started as illegal acts of expression dumped on the street, later adopted by government and preserved as the will of the governmental speaker.

    Reply
    1. SHG Post author

      While there is a very real problem with encouraging “graffiti” in the hope that it will be adopted later, the fact is that sometimes it is adopted. But that’s up to government, through whatever mechanisms it requires to make it so. And if it creates unfortunate incentives for the next guy who puts his graffiti out in public, that’s part of what government needs to consider before empowering the flavor of the day to seize public property.

      Reply
    1. DaveL

      I wouldn’t be so quick to chalk this up to the inventions of “progressive” judges. Some very conservative judges have been playing hide-the-sausage with public forums and government speech for decades, usually in connection with public displays of religion. Much of the law governing public forums has been hashed out in this context. The main difference here is that, as the constitution does not require state neutrality on the subject of Black Lives Matter, the judge has an easy “out”.

      Reply
  2. jay-w

    If anti-racism is indeed a religion as Prof. McWhorter plausibly claims, and if the BLM movement is the enforcement/missionary arm of that religion, then why is painting “Black lives matter.” on the sidewalk any different from painting “Jesus loves you.” or “God hates xxxx.”?

    Reply
    1. SHG Post author

      That’s a good question, but it all depends on the definition of religion. I agree with McWhorter that it’s a secular religion, but without a deity, it’s not what the law considers a religion.

      Reply
  3. mark dwyer

    I’m used to the BLM street art — here, paint actually on the street — at Foley Square. I’ve walked across it scores of times, every time chuckling to myself: “doesn’t the City know it can’t allow that, right here in the heart of the government district, and not allow ‘all lives matter’ to make the same (but opposite) art?”

    It wasn’t graffiti. The City cut off traffic and let the artists have free reign as long as was necessary. A fair amount of time over days was necessary, as this was not casual action by a random bunch of kids. And it happened so that the artists could with City help make a political statement in a public place. Which makes it a City statement, not a private one.

    The City didn’t know, or more likely didn’t care. The courts must know. We’ll see if that matters.

    Reply
    1. SHG Post author

      If I had nothing better to do, I might research what NYC required in order to legally adopt a work of art or expression placed on public property, whether with or without the acquiescence of a mayor, traffic enforcement or whatever other city services assisted in its placement. It being NYC, there’s almost certainly a complex and lengthy process required for something to become “officially” governmental expression. Not that I doubt the city council wouldn’t approve BLM in a heartbeat, even if they might similarly approve a different message when the next crack epidemic brings city residents to their knees.

      Reply

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