The Volokh Conspiracy
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City Can Choose What Gets Painted on City Roadways
Painting "Black Lives Matter" doesn't require New York to allow other groups to paint other slogans.
From Women for America First v. Adams, decided Friday by the Second Circuit (Judges John M. Walker, Jr., Joseph F. Bianco, and Beth Robinson):
In July 2020, New York City employees and private citizens began painting "Black Lives Matter" in large, bright-yellow letters on Fifth Avenue in Manhattan, directly in front of Trump Tower. The mural was allegedly undertaken by the New York City Department of Transportation … at an initial cost of approximately $6,000. Moreover, the mural was part of former New York City Mayor Bill de Blasio's commitment to the "Black Lives Matter" movement, which included an announcement by Mayor de Blasio that each borough in New York City … would get its own "Black Lives Matter" mural. Thus, according to the amended complaint, the mural on Fifth Avenue was one of seven similar murals painted on streets throughout the City at Mayor de Blasio's direction.
Also in July 2020, WFAF submitted a request to Mayor de Blasio to paint its own mural on a City street. {Specifically, WFAF sought "to paint a mural of [their] motto—'Engaging, Inspiring and Empowering Women to Make a Difference!'—on Fifth Avenue, or another similar street within the city's jurisdiction."} After receiving no response, WFAF sent a second request that was later denied by the DOT because "the NYC DOT does not permit installations on City roadways that are open to traffic." …
WFAF sued, but the court held against them (quite correctly, I think):
[T]he City Defendants engaged in government—not private—speech, and thus, WFAF's First Amendment claim fails as a matter of law….
[I]f a government "engag[es] in [its] own expressive conduct, then the Free Speech Clause has no application" because, while the First Amendment "restricts government regulation of private speech," it does not restrict the government's speech. Pleasant Grove City v. Summum (2009). Thus, when the government speaks for itself, "it is not barred by the Free Speech Clause from determining the content of what it says," and "is entitled to favor certain views over others."
First, it is apparent that New York City has historically used this medium—i.e., markings upon roadways—as a means to communicate with the public, whether through traffic signals, lane indicators, or street signs. In fact, as its various anti-graffiti laws make clear, the City exclusively reserves the surfaces of its streets for government communication unless it grants specific approval to the contrary.
Second, because of this historical communicative use, City streets are "closely identified in the public mind with the government unit that owns [them]." Therefore, a reasonable person would assume that the City endorsed a message permanently painted upon its streets and interpret the Murals as an exercise of government speech, particularly where, as here, the City Defendants specifically broadcasted that the Murals were intended to "send[ ] a message that these are our values in New York City." Indeed, the amended complaint contains multiple statements made by former Mayor de Blasio and other City employees announcing their intent to send a specific message through the Murals. App'x at 17 ("For all lives to matter, we must first make clear that black lives matter. That is why we approved the murals and met those words with action."); App'x at 17 ("This is about something much bigger than any one group … [t]his is about righting a wrong and moving forward.").
Third, the City Defendants exercised "editorial control" over the Murals. For example, as alleged in the amended complaint, the Murals were painted "at the behest of Mayor Bill de Blasio"; New York City employees (including former Mayor de Blasio) participated in the creation of at least one mural; the DOT funded the creation of one mural; and New York City employees "allowed" and "approved" "other duplicative murals." …
WFAF scarcely attempts to dispute any of these points, instead arguing that: (1) because one mural (the Fulton Street Mural) "was painted without [City Defendants'] knowledge, consent, approval, or participation," it "could not have been the government's own speech"; and (2) "even if the Black Lives Matter murals were found to constitute government speech, the defendants' imposition of [content-based] restrictions on the painting of such murals fails strict scrutiny." …
[But] even assuming, arguendo, that a single mural was created entirely by private individuals, that does not, by itself, render it private speech…. For instance, in Summum, the Supreme Court held that a city's acceptance of a privately created monument and the display of that monument in a city park were an exercise of government speech unregulated by the First Amendment, as the city had "effectively controlled the messag[ing]" delivered by the privately created artwork and assumed it as its own…. [T]he City Defendants … adopted the mural "for the purpose of presenting the image of the City that it wishe[d] to project to all," Summum.
As to WFAF's second contention, that we should examine the Murals and the City Defendants' denial of WFAF's request as restrictions on speech in a traditional or designated public forum, such an examination would be inapposite. When the government is speaking for itself, the forum analysis simply does not apply.
To be sure, a city street is a quintessential public forum for "purposes of assembly, communicating thoughts between citizens, and discussing public questions." However, as the district court noted, marching or gathering on a public street is constitutionally distinct from painting murals on them….
Indeed, given Summum, which held that a city can choose what monuments are emplaced in a city park (even if it can't pick and choose what demonstrations take place there on occasion), it seems clear that a city can choose what slogans are painted on city streets (even if it can't pick and choose what parades take place there on occasion).
UPDATE: Note that, when it comes to religious displays, the rule might be different, because of the Establishment Clause; past cases have held that the city can't just endorse a particular religious view, so if it allows religious displays, it can do so only by opening up a public forum where any group scan place its own displays. (Query to what extent those cases remain good precedent after American Legion v. American Humanist Ass'n (2019), the Bladensburg cross case.)
But that rule is limited to religious displays, because the First Amendment restricts establishment of religion. There isn't an Establishment Clause for political opinions: Even if the government can't endorse Protestantism, it can endorse patriotism, respect for the military, environmentalism, the Black Lives Matter movement, or other ideologies.
