The Volokh Conspiracy
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City's Allowing "Black Lives Matter" Street Painting Doesn't Require It to Allow Other Writings
Just like a city can allow some monuments in city parks without having to allow others.
From Judge Lorna G. Schofield's opinion Thursday in Women for America First v. De Blasio (S.D.N.Y.), which strikes me as quite right (see this post of mine from June):
On July 28, 2020, Plaintiff Women For America First filed a Complaint alleging that Defendants' denial of Plaintiff's request to paint a mural similar to New York City's eight "Black Lives Matter" murals deprived Plaintiff of its First Amendment rights ….
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….
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.
Plaintiff has not shown a substantial likelihood of success with respect to this alternative argument because Plaintiff has not shown that the Murals constitute private—not government—speech. "The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech." The government is free to "select the views it wants to express." In doing so, it does not trigger an obligation to permit similar expression of other viewpoints….
"In [Summum,] … many factors indicated that park monuments represented government speech, among them, (a) government's historic use of monuments to speak to the public, (b) a tradition of parks selectively accepting and displaying donated monuments, (c) the public's close identification of public parks with the government owning the parkland, and (d) the accepted monuments were meant to and had the effect of conveying a government message…."
Even privately contributed monuments can constitute government speech. "Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land." For example, in Summum, the Supreme Court found that monuments placed in a public park constituted government speech, even though "many of the monuments were not designed or built by the [c]ity and were donated in completed form by private entities." The Supreme Court rejected the premise that a completed work conveys one message—that of the creator or donor—and that a government must accept that singular message to engage in government speech….
Several of the factors the Supreme Court looked to in … Summum and [other cases] apply here. First, markings on public streets have historically been used as a means for the government to communicate with the public. Particularly in light of Local Law § 10-117(a), the surfaces of New York City streets are reserved primarily for government communication. As a result, public street markings are likely to be "closely identified in the public mind with the [government]," specifically the DOT.
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." Finally, Defendants were involved in the creation of, and controlled the content of, the six later murals. For example, Defendants paid for the mural on Fifth Avenue with DOT funds. These factors all strongly support the conclusion that the Murals constitute government speech.
The pleadings suggest that this is not an instance in which Defendants have merely affixed a seal of approval to pass private speech off as government speech. Although Defendants did not create or commission the murals on Fulton Street and Richmond Terrace, the acceptance and preservation of those murals, in combination with Tweets explaining the government's intention to share the message that "Black Lives Matter," suggest that Defendants used these privately donated works to engage in government speech. The focus and clarity of Defendants' message help to underscore this point. Cf. Matal v. Tam (2017) (rejecting the premise that federal trademark registrations constituted government speech, in part because together, the registrations were "incoherent babbling" rather than a concerted government message). Defendants adopted a message of social consequence and disseminated it during a time of social unrest. Black lives matter. It is plainly evident that these words—which affirm the value of Black lives—have meaning separate and apart from any organizations or movements of the same name.
Plaintiff also contends that Defendants' conduct is an affront to the First Amendment because the "Black Lives Matter" message is political. Whether the "Black Lives Matter" message has political content is not relevant to the question of whether the Murals constitute government speech. The fact that an elected official, such as the mayor, might seek to communicate a message that is appealing to voters suggests that the Free Speech Clause is serving one of its intended purposes; "the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate." …
Because the Murals are government and not private speech, and therefore did not open up the surfaces of New York City streets as designated public fora, strict scrutiny does not apply to the denial of Plaintiff's request to paint its own street mural….