Free Speech

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….

NEXT: Today in Supreme Court History: February 20, 1933

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  1. City’s Allowing “Black Lives Matter” Street Painting Doesn’t Require It to Allow Other Writings

    Governments are not allowed discriminate. Yet this city allowing Black Lives Matter to street paint is discrimination, in fact it is racial discrimination. It is also political discrimination, but that is normal. If the USofA is going to have a non-discrimination law(s) then this city need to be held accountable for their racial discrimination.

    1. I’ll take it one step further — it encourages vigilantism.

      10 gallons of gasoline will remove the paint — and likely cause otjher problems.

      If the city is asinine enough to create a public forum, then it has to live with the consequences.

      Unless it wants a shooting civil war…

      1. Only Republicans can flick matches at our current dumpster fire of political discourse. Don’t you know that is why Ted Cruz “almost murdered!!!!!” AOC? (And hey did you notice he left his dog in a cold house so he could fly to Mexico!!!!!) He was enflaming people and should have known he was causing riots. Of course, liberals are never to blame for such actions. They have absolutely no culpability for stoking race riots all summer or even for the capitol hill event on Jan. 6th. There is no way that colluding with Big Tech to censor anything to do with rigging the election and their media collaborators to do the same resulted in about a million pissed off people heading to DC to have their voices heard.

        No these libs know exactly what they are doing, but I don’t think they realize what the result is going to be…

        1. Like I said, 10 gallons of gasoline…

          1. Setting yourself on fire seems a bit extreme.

            1. The gasoline will dissolve the asphalt the paint is attached to, turning both into a sticky, gooey, mess — the only solution is to apply sand and (eventually) repave.

              1. Assuming you don’t manage to set yourself on fire.

                1. Spilled gasoline doesn’t always ignite — in fact, it usually doesn’t.
                  You need an ignition source — a spark or flame — to ignite it.

                  1. And you’d hardly count as a bright spark, yes, I see.

      2. And vigilantism, based on the confederate monuments, should be encouraged to deface these political messages.

    2. For all those years, Governments put up statues of confederate leaders, and you folks didn’t claim it was discriminatory.

      1. Did someone try to put up other statues?

      2. And that was wrong too.

  2. So I guess they screwed up all those decisions that allow Satanic monuments or BLM is the new state religion.

    1. AmosArch: Which decision do you have in mind allowing Satanic monuments? Summum, the case on which the court relied (as did I in my earlier post), expressly held that a city didn’t have to allow a monument depicting the Summum Seven Aphorisms, even though the city had accepted many other monuments. Given that, why would the city have to allow Satanic monuments?

      1. Satanic statues were put up in Arkansas, Detroit, and Oklahoma and many other places. I’m not a legal nerd so I didn’t really follow how far each of them ever got up into the legal system. From what I gather its mostly a mix of being unresolved and the government allowing them to get their way. But in either case they sure got to express themselves far more than the poor people here did.

        1. Are you sure they were actually put up as permanent or quasi-permanent installations, as opposed to just being displayed at some rally? A quick Google search, for instance, reveals this AP story from Arkansas, which states that “The statue of Baphomet, who is seated and accompanied by two smiling children, can’t be installed under a 2017 law that requires legislative sponsorship for consideration of any monument” at the Arkansas State Capitol.

          1. The Arkansas case is in limbo as far as I know. In oklahoma they were able force the removal of the 10 commandments monument. Overall there are tons of cases where monuments/art is removed due to establishment grounds. I don’t see what makes government sponsored or privileged BLM propaganda so different Maybe they should refer to the wisdom in this case.

            Are you sure they were actually put up as permanent or quasi-permanent installations, as opposed to just being displayed at some rally?

            In at least some places it is implied there were placed as part of a permanent rotating display or longer than what most would be considered a rally. In any case does it really matter? Would everything be okay if the people here put their mural on wheels or promised to take it down after some time or conditions were met?

            1. If they put their mural on wheels, and drove it around, they’d have the First Amendment right to do that (subject to traffic laws that might limit the size of various vehicles). The streets and parks are a traditional public forum for temporary displays that people drive around (on the streets) or display on hand-carried signs (in parks). They’re not a traditional public forum for permanent or quasi-permanent monuments.

              1. I think we’re getting a bit away from the main point. Which is this sort of government privileged display of a creed is heavily frowned upon and not tolerated if it was from another cult/religion, especially if it is conducted in a very public and overt way. How long would it last if NYC allowed only Moses the great lawgiver and ‘Jesus saves…in a nonreligous way’ murals on highly visible roads and nothing else as part of a highly publicized blitz? Creed related displays are removed all the time due to the appearance of government favoritism. That this one happens to be on a road is besides the point. heck even the old time building statues and art they made sure to throw in a lot of pagan symbology and even Muhammad to avert any danger of seeming to favor symbols and people that were Christian related.

                And there is a trend of authorities if they have creed related monuments to allow critiques and competing displays against it to a degree they do not tolerate for SJW monuments. Time and again competing displays and protests are allowed or at least seriously countenanced for Christian displays even in the deepest Bible Belt. If this was a 10 commandments mural, the ‘secular appreciation’ argument either wouldn’t fly and it be removed or they’d be drawing pentagrams right next to it or there would be an uproar and serious court cases. But imagine the poopstorm if the same thing happened for these murals.

                Blah blah blah its not a religion. Oh really, tell me in what relevant way it differs as they are imposing it in classrooms, sending police out for noose scribbles on bathroom stalls, and canceling heretics.

                1. “Blah blah blah its not a religion. Oh really, tell me in what relevant way it differs as they are imposing it in classrooms, sending police out for noose scribbles on bathroom stalls, and canceling heretics.”

                  None of those things are defining characteristics of religions. In fact in the US being taught in classrooms is a point against it being considered a religion. The only thing that supports is the notion that it is a strongly held opinion, like almost all political opinions

                  1. >>>>>>>>>>>>>>>>>>>>>>>>>>>
                    The only thing that supports is the notion that it is a strongly held opinion, like almost all political opinions

                    Pretty facile analysis. Its true almost anything can be a strongly held opinion but much fewer things become organized into strongly group/emotion based comprehensive and institutionalized creeds.

                    Its not that someone is simply a strong feminist its that there is an organized group spreading spreading it as part of a broader dogma with established widespread characteristics including Original sin, sin, saviorism, signaling of virtue, heretics, heresy, utopianism, good vs evil and pathways for the ordinary man take up the fight in their own life, indulgences, strong emotional and faithbased connection to values, strong group based dynamics, markedly strong conversion drive and intolerance of even discussion of similar creeds, you name it it slots right in.

                    And this dogma is taking root and is being driven by powerful established forces in society far beyond other ‘strong beliefs’ is a cause for concern that marks it out specifically.

                    So how else is it not a cult in all the relevant ways other than the argument that children being taught it makes in not a religion/cult.

                    1. Well, it doesn’t have a leader proclaimed by many of his followers to be sent by God to deliver them from a global demonic cabal of baby eating pedophiles.

                  2. Accusations that the other side is full of sex predators guilty of basically every crime imaginable is hardly an unknown phenomenon among the Left.

                    1. Actual sex predators exist, though, they’re not an article of faith and not restricted to any side. All Democrats are members of a global satanic cannibal pedophile elite and Trump is enacting an exquisitely complex plan to entrap them? Wildly false equivalence to suggest they’re remotely the same, not to mention incredibly irresponsible and profoundly immoral, but hey.

                    2. Speaking of false equivalence. I hang around a lot of right leaning places and whenever I hear about the ‘global satanic pedophile cannibal cabal’ its mostly coming from the MSM/or leftwingers like you as what conservatives supposedly believe.

                      Whenever something like it (I do not recall a single time anybody but a leftwinger has talked about a ‘global Satanic pedophile cannibal cabal’ exactly) actually is referenced by a rightwinger its usually in jest or knowing hyperbolic insult not as a serious genuinely believed comprehensive theory.

                      I really don’t see any evidence that this theory is genuinely widespread in Republican or even Qanon circles. I mean there might be a few people but you can find a minority of extreme theorists anywhere. Its more a canard used by the Left as a strawman.

                      On the other hand things like punishment for misgendering, calling the authorities over lengths or drawings of rope, removing the word ‘blacklist’, and cancelling people over relatively minor offenses such as questioning SJW dogma is an extraordinary common thing among the left, openly supported by the leadership and majority or at least a very large faction and there is no shortage of hard evidence of this as you can pull up countless articles, policy, tweets, and mission statements where they proudly proclaim so.

                      So get back to me when you have evidence that the ‘global Satanic cannnibal pedophile cult’ theory is as widespread as any of these wacky beliefs the Left has and actually puts in practice.

                    3. No amount of trying to embiggen your list of horribles – ‘punishment for misgendering’ lol – can quite match the sheer scope and profound weirdness and deep cultishness of Qanon.

                    4. So you can’t provide any evidence that your bizarre ‘pedophile cannibal elite’ theory is widespread among conservative circles? Got it.

                    5. You’re certainly living proof that conservatives who don’t believe in it are pretending it doesn’t exist which is wild.

                    6. Better still, you just don’t get anyone on the left being all sniffy and ‘I don’t see any evidence that your bizarre ‘feminism’ theory is widespread among liberal circles,’ only cranky reactionaries on the right think liberals should be as ashamed of feminism as they are of Qanon.

                2. By that logic, arithmetic is religion.

              2. Speaking of traffic laws — there ARE state road marking laws which, since the 1970s, have had to be in compliance with Federal specs. (That’s why there is a yellow (not white) line on the left side of a divided highway.)

                This graffiti is in violation of that.

                Furthermore, paint is slippery when wet. With a mist, it is as slippery as black ice. So will the city be liable to a motorcyclist who is badly injured on the city-defaced road?

      2. LOOK, the only legitimate reason to paint a street is to facilitate traffic movement.

  3. Jew opinion! The faceless, nameless GOVERNMENT of the people, for the people and by the people decided to send a message tot he people by painting BLM propaganda on a city street, using city money to lecture the people who are the government? Only a jew can come up with such logic. What next? The GOVERNMENT paints fetus lives don’t matter, free abortions for all! To send a message to the people it enslaves? Oi Vey! This opinion stinks of jewism.

    Why not hold a referendum? A vote in the legislature? A vote in the city? Who are these dark hands that masquerade as GOVERNMENT.

    Only jew lawyers can swallow that shit.

    1. Please get drunk and go play in traffic.

    2. At least capitalize “Jew,” okay? Even a Russian bot can be programmed for grammatical politeness.

    3. Pavel, you never disappoint.

      Am Chai Yisrael!

      One day, you will rot in a grave: Unloved, and forgotten. We will still be here.

    4. Antisemites neither know what “Oi Vey” means nor use the expression.

      Just sayin…

    5. Pavel. Can you modify “Jew” to “German Jew”? Others Jews are quite different.

      Speaking of fetuses, Blacks are 12% of the population but 30% of the abortions. Millions of innocent black babies have been exterminated by this Democrat policy. It goes beyond the wildest dreams of the worst genocidal maniac KKK member, or of Nazi scum like you.

  4. Unfair lawyer false bullshit decision. The home of this judge should be picketed, at the appropriate times of day, of course. What inconsistent tripe this decision sounds like.

  5. I can identify at least one city council that would like to paint an “All Whites Are Racists” mural. So, that’s OK.

  6. govt cannot discriminate or pass laws forcing people to…what don’t you get about that? Govt doesn’t own the property anyway..the people do as they paid for it.

    This is govt taking a political position. This decision and justification is something out of the old USSR..only a bolshevik type thinker would defend this decision.

    1. Titus PUllo: Doesn’t the government take political positions all the time? It takes a political position when it puts up a statue of George Washington but not King George III. It takes a political position when it urges people to buy war bonds but not to boycott war bonds. It takes a political position when it teaches the Revolutionary War or the Civil War or the World War II or the Cold War in one way but not another. The government is entitled to speak, including to express ideological viewpoints.

      1. OK, and when some town paints “Niggers Suck” on its streets?!?

        1. Well, that would be kind of like having a monument to Robert E. Lee, but not having one for U.S. Grant, right? And that’s … pretty common in the south. Very few Grant monuments, as I recall.

          1. I make a distinction between honoring a historically significant person and making a political statement.

            1. There’s no such distinction. An honor is a political statement.

        2. Everyone would applaud this bold and brave exercise of free speech and a return to the vaules and rights of the Founding Fathers, namely the right to call black people ‘n—-s.’ The streets it was written on would be raised high on everyone’s shoulders and carried aloft through other streets, now finally free once more to write it on themselves. America lives happily ever after.

      2. Prof. Volokh, when you say government, you mean, the lawyer profession, of course. Government is a wholly owned subsidiary of the lawyer profession. The elected figureheads come and go, but the lawyer profession makes 99% of all policy decisions.

  7. Somehow I think this judge would have a different opinion if say it said “Irish or Italian Lives Matter.”…and besides govt can’t discrminate…including they can’t say “black lives matter” and not include “white lives matter” or “catholic lives matter” or “baptist lives matter.”

    How any libertarian could come out for this decision is crazy..

    1. “Somehow I think” is not an argument.

      And it’s hard to see what this has to do with libertarianism.

      1. It actual is a good argument.

        And it has to do with libertarianism because that philosophy proscribes freedom, not restrictions.

    2. Yup. This is the judicial principle of “I-like-it-so-its-ok”. Which of course is an unconstitutional principle, as the better one is “all-can-do-or-none-can-do-but-not-some”.

  8. OK, how about painting “Kill All Niggers” on a street???

    Apparently, as long as the local politicians approve, there is nothing that the NAACP can say or do about it — let alone everyone else?


    Is this country seriously *that* f*cked up???

    1. OK, how about painting “Kill All Niggers” on a street???

      There would a horde of Trump fans moving to that town.

      1. “There would a horde of Trump fans moving to that town.”

        But not for the reason you think — Trump fans are *not* racist. BLM *is*.

        1. Your “It’s not racist to say ‘kill all n——s'” t-shirt must cause people to keep asking you questions already answered by your t-shirt.

          1. That’s not what he said. If you can’t manage basic reading comprehension, maybe you should go to a blog more suited to your style. Disney perhaps? Or Sesame Street?

            1. Rossami’s ‘He didn’t say it’s not racist to say ‘kill all n—-s’ ” t-shirt also inviting lots of questions answered by their t-shirt.

          2. Nige — giving the middle finger to political correctness is not inherently racist.

            1. Of course not.. But you went with it anyway.

      2. David Nieporent, your comment would be deleted on Facebook, Twitter, and you would be banned for 30 days, if not permanently. You should show more gratitude for being a guest on this libertarian site.

    1. I consider impeding someone’s ability to travel to be the equivalent of false imprisonment and violence. Defending ones self against such tactic is moral and ethical.

      And of course the article leaves out that part of the “blocking traffic” tactic of BLM rioters was also attacking the trapped cars causing massive damage, pulling out their occupants, and assaulting those people. Guess it does not sound as innocent though when you include those inconvenient facts.

      1. What people tend to forget about trailer trucks is that if you disconnect either of the air hoses coming from the tractor, all 8 tires of the trailer lock up. (The spring brakes engage.) The truck can not be moved.

        The thugs know this, it’s why they go for — and why trucks don’t stop.

        Remember Reginal Denny…

      2. Morning and evening commuter tailbacks are going to turn into right bloodbaths, so.

        1. Four words: Double Wing Snow Plow.

          Usually the middle plow is on the front of the truck, and those wings are not fully extended (road’s not wide enough). A good double winged truck can plow three lanes — the other night I was watching one plow two lanes on the Intesrstate.

          And it would nonchalantly wing those dirty hippies and assorted losers right into the woods…

          1. Make America Mad Max Again.

            1. Again…we are already there….

              I was just at the Thunderdome last night. It was great!

              1. Aw, nice of them to let you out of the slurry pit.

  9. Professor Volokh….Why doesn’t Lamb’s Chapel come into play here?

    The NYC government chose to make the street a place to express a political viewpoint by painting a message there. I mean, it is a creative expansion of the public square, right? Sure looks that way to me.

    So why doesn’t the principle from Lamb’s Chapel come into play where government may not discriminate access by viewpoint? The government expanded the public square. Should they not have to allow access to it by competing viewpoints? Or, is this really not an appropriate extension and application of Lamb’s Chapel?

    1. Lamb’s Chapel is irrelevant, because this is government speech. The city didn’t allow BLM to paint the streets; the city itself painted them. It was DOT workers who did the painting, under the mayor’s orders. (Even if BLM members had done the actual painting it would still have been government speech; the members would have been the city’s agents, volunteers acting at the city’s invitation to paint its property with a message that it officially endorsed.)

      Lamb’s Chapel dealt with speech that was decidedly not endorsed by the government; the school was available after hours for private functions, and had the film the plaintiff wanted to show taken a secular viewpoint it would have had no problem; it was denied a permit only because the film was religious, and that violated the free exercise clause.

      Imagine, though, that the screening was an official school function. Suppose the school showed films to the students, during school hours, or even after hours but run by the school staff as a school activity. Let’s even suppose the general public were invited to attend, but it was still an official school function. Not only would the school have been allowed to select only secular films to show, but it would likely have been required to do so. Showing Lamb’s Chapel’s film would have been seen as implying official endorsement, and would thus likely have violated the establishment clause, at least as then interpreted.

      1. Milhouse, thanks for responding. Isn’t the fact that this is government sponsored speech all the more reason to prevent viewpoint discrimination?

        Look, the government opened the door to this legal question, it seems to me. The government made the affirmative choice to paint a message on the street. In fact, defacing a NYC street is a crime. But once the NYC government chose to paint messages on the street, it became part of the public square and now the government cannot discriminate based on viewpoint. Which it is, in fact, doing.

        Commenter_XY has a message to paint on a NYC street. Commenter_XY wants to paint, “Every black life matters, because we are all created in the image of our living God. Let’s reduce abortion in the black community now!” NYC will not allow that. How come? NYC made the street part of the public square to express a message. Now I want to. They won’t let me.

        Why does Commenter_XY lose that case to paint the message that every black life matters?

        (Yes, I am using an extreme hypothetical only to dramatize the point)

        1. You lose because NYC did not make the street part of the public square (i.e., did not provide a forum for private speech).

          1. Well, that is what the district court ruled; I think the ruling was in error by virtue of the fact that the NYC government made it a public square by their affirmative actions of presenting a (political?) message to the public.

            1. Your conclusion is foreclosed by Pleasant Grove where the city displayed permanent monuments in a public park. That too was an affirmative action presenting a message to the public. However, the Court held the monuments were not part of the public square.

            2. That doesn’t make it a public square; it makes it a private square for the city’s own use.

        2. Milhouse, thanks for responding. Isn’t the fact that this is government sponsored speech all the more reason to prevent viewpoint discrimination?

          No. The government is not required to be viewpoint neutral in its own speech. That would be a nonsensical rule; it would prevent the government from putting out any message at all. “Don’t drink and drive” is a viewpoint; a government that puts out that message is not required to also say, “Please drink and drive.”

          Your “public square” argument is completely muddled. I think you mean “public forum” — the term used in this context — but as already explained above, the government putting forth its own message doesn’t make something into a public forum.

        3. Isn’t the fact that this is government sponsored speech all the more reason to prevent viewpoint discrimination?

          No. The government is allowed to have its own opinions, and is allowed to express them, whatever they are. It does not have to pretend not to believe in its own opinions are not valid, or to present opposing opinions. Viewpoint neutrality only comes into play when it is dealing with other people’s opinions. It is allowed to say it agrees with X’s opinion and not with Y’s, but it is not allowed to discriminate against Y because of that disagreement. So if it allows X to use its property it must allow Y the same. But if it does not allow either of them that’s fine, and it can still use its own property itself, to express its own opinion.

          But once the NYC government chose to paint messages on the street, it became part of the public square

          No. Let’s say a public school has a notice board, which is for use by the administration only. It is not a public forum of any kind. The administration can post any opinion it likes there, except an endorsement of religion. That’s what the street is, when the city uses it to paint its own messages.

          Now had it invited the general public to write on the streets, that would have turned them into a limited public forum and while it could still make content-based rules, such as “no politics, sex, or religion”, it would have to enforce them equally regardless of viewpoint. If it allowed members of the public to write “black lives matter” it would also have to allow them to write “black lives don’t matter”, because the only difference between the two is viewpoint.

          In an actual public square, which is a “traditional public forum”, the government must also be content-neutral.

          1. Milhouse, thank you. This was a thoughtful and considered response. Now I have a fuller understanding of the legal reasoning and rationale. It makes sense to me and I can follow it (still though, something feels ‘off’ about this practice).

            I learned something today (and early to boot!). 🙂

  10. The distinction between “this is government speech” and “this is government letting people speak” is a pretty murky one on which to hinge constitutional rights.

    1. No, it isn’t. The government, like any individual or corporation, is entitled to use its own property to express its own opinions. It doesn’t have to let other people use its property to express their opinions. You can put a “Vote Trump” sign on your lawn, and you don’t have to let the Biden campaign put one there too. If the government allowed the Trump campaign to put up a sign it would have to give the same permission to the Biden campaign. But if it doesn’t let either of them put up signs, it can still put up its own sign, which (as far as the constitution is concerned) can say “vote Biden”, if that’s its opinion.

  11. So what is decided here is that so long as the local elected officials are okay with the message, anything they allow or desire can be written on the streets, but only what they allow or desire.

    This includes, as Dr. Ed 2 has been attempting to point out, messages that are abhorrent and ludicrous in every other portion of society. And that in doing such there is no availability for any other message except for what the local elected officials decide is allowed.

    “Kill all (take your pick).”
    “(race) suck!”

    All okay as long as elected officials are good with it.

    While the arguments may have been somewhat unconvincing at least to this judge, the logic to come to the conclusion that has been reached is logic to justify any message regardless of how terrible, unacceptable, or poorly received said message actually is.

    When attempting to justify something, put the opposite position in effect and see how it sits with you. If it doesn’t sit well, then that’s not really a good justification.

    1. “All okay as long as elected officials are good with it.”

      You know, why wouldn’t the_Janus_ decision apply — the elected union officials have free speech rights, but the members don’t have to pay for it. So too here, if the elected officials have free speech rights, the taxpayers ought not have to pay for it.

      1. Because there is freedom of (dis)association from a private organization, but not from a government. The law doesn’t recognize a right not to associate with the government.

    2. While the arguments may have been somewhat unconvincing at least to this judge, the logic to come to the conclusion that has been reached is logic to justify any message regardless of how terrible, unacceptable, or poorly received said message actually is.

      The remedy for the government’s setting forth terrible messages is to elect new people to office.

      The judge’s logic does not turn on the popularity of the message. It turns on who the speaker is and what the forum is.

      1. “The remedy for the government’s setting forth terrible messages is to elect new people to office.”

        If only BLM understood this at the local and state level, they’d get much further than they have at their goals.

  12. “…time out of mind…”

    OK, they won with that phrase…as long as nobody remembers, there is no choice but to concede.

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