City's "Public Art Master Plan" Program Likely Can't Exclude "All Lives Matter" Mural Based on Viewpoint

After the City of Bloomington allowed three Black Lives Matter street murals—and had allowed other "street art" projects in the public right-of-way by other community organizations—the Indiana University Chapter of Turning Point USA sought to paint an "All Lives Matter" mural. The City said no, and today Judge Sarah Evans Barker (S.D. Ind.) in Indiana Univ. Chapter of Turning Point USA v. City of Bloomington held that this was likely unconstitutional.

The Black Lives Matter murals were government speech, Judge Barker concluded, and the government can paint its own speech on its property without doing the same for rival viewpoints. But it was likely that the broader "street art" program was a "limited public forum" program for promoting private speech, the court held, and such a program couldn't discriminate based on viewpoint; the city had to reconsider the application in a viewpoint-neutral way. (The court did not hold that the mural had to be allowed, only that the application had to be reconsidered without viewpoint discrimination.) Here's the heart of the analysis:

While it is, of course, true that "the government need not permit all forms of speech on property that it owns and controls," and that the government can place varying kinds and levels of regulation on speech and expressive activity depending on the type of forum at issue, including in some cases by imposing content-based restrictions, it is axiomatic that, once the government creates a forum for private speech on its property, regardless of the type of forum it has created, it cannot discriminate based on viewpoint. {[E]ven in limited public and non-public fora, where the government has the most leeway to impose limitations on speech, the limitations it imposes must be viewpoint neutral.}

We have before us no evidence that the City has promulgated any criteria or guidelines, content-based or otherwise, that it applies in regulating the display of public art in its rights-of-way. To the contrary, the City's Public Art Master Plan … defines "public art" very broadly as including "any mode of temporary or permanent artistic expression or process that is funded through any source and is produced with the intention of making it available to the public." The Master Plan lists among the City's priorities to "[p]rovide resources … for public art project development" not just to "neighborhoods" but also to "organizations, … students, individual artists, and the general public" and to "[i]ncorporate works of public art … in high-traffic transportation corridors and pedestrian areas," by "continu[ing] the placement of works of public art in roundabouts and intersections."

The Master Plan explicitly recognizes that "[a]rt created for the public sphere can give form to core values of the community, such as freedom of speech and expression, alongside respect for diverse viewers and users[,] … seek to balance issues of originality, artistic quality and intellectual provocation with a respect for the diverse activities that take place in the public domain[,] … [and] can reflect the history of the community, including the evolution of taste, values, and formal expressions as well as challenge previously held views."

Despite the City's clearly expressed intent to encourage members of the general public to develop art to be displayed in City rights-of-way, including in "transportation corridors" and "roundabouts and intersections," without regard to any established objective criteria or content-based limitations, the City peremptorily denied Plaintiffs' access to the application process on grounds that "the City does not take recommendations for art in its right of way from individuals." Given the apparent inaccuracy of this reason for the City's denial and the fact that Plaintiffs' chosen message is plainly in tension with the City's publicly-espoused view, we hold that Plaintiffs have demonstrated at least some likelihood of success in establishing that the City's failure to permit them to submit a public art proposal in the same way other private groups have presented public art proposals for display in City rights-of-way was based on the viewpoint they sought to convey…. "Suspicion that viewpoint discrimination is afoot is at its zenith where the speech restricted is speech critical of the government, because there is a strong risk that the government will act to censor ideas that oppose its own."

{Insofar as Defendants contend that the City cannot have created a forum for expressive activity because the non-BLM murals do not "contain words, letters, or universally recognized symbols to convey an idea or message" [more on the details of those murals below -EV] and thus "are not speech or acts of expression protected by the First Amendment," this argument is unavailing. The Seventh Circuit has long acknowledged that the free-speech clause of the First Amendment "has been expanded by judicial interpretation to embrace other silent expression, such as paintings."}

To the extent Defendants contend that the City's actions, even if based on Plaintiffs' viewpoint, are not violative of the First Amendment because the non-BLM murals constitute government speech, this argument has not been adequately developed in response to Plaintiffs' request for preliminary injunctive relief. As discussed above, "[t]he boundary between government speech and private expression" is murkiest when "a government invites the people to participate in a program," requiring a holistic and nuanced analysis to determine whether the "government-public engagement transmit[s] the government's own message" or "instead create[s] a forum for the expression of private speakers' views." Defendants' summary assertion that the non-BLM street mural projects, all of which were initiated by private individuals and organizations, were in fact "City projects," does not persuade us, at least at this juncture, that the government speech doctrine applies to other non-BLM murals.

For these reasons, we hold that Plaintiffs have demonstrated at least some likelihood of success of establishing that, by approving applications initiated by private individuals and/or organizations to display painted murals on City rights-of-way without established guidelines in place governing the expressive content of art which the City would approve, the City created a limited forum for expressive activity in its rights-of- way, and then failed to permit Plaintiffs to access that forum based on the viewpoint they sought to convey…. Plaintiffs are entitled to preliminary injunctive relief on their First Amendment claim, to the extent that they must be permitted to engage in the process afforded to other private individuals and groups to seek approval for an encroachment on a City right-of-way to display public art.

Here were the "street art" (non-BLM) projects that the city had approved:

In January 2015, several years prior to the events at issue in this litigation, the Bloomington Arts Commission, an entity established by the Bloomington Common Council, developed a Public Art Master Plan for the City that "articulate[s] not only the principles and guidelines for those public art activities with which [the Commission] has direct connection, but also to put forth a blueprint for the ideal public art environment for the city of Bloomington, recognizing that the arts exist within a physical, artistic, sociological, governmental and economic construct that is constantly shifting." The term "public art" is defined by the Master Plan as "any mode of temporary or permanent artistic expression or process that is funded through any source and is produced with the intention of making it available to the public."

The Master Plan recognizes that "[a]rt created for the public sphere can give form to core values of the community, such as freedom of speech and expression, alongside respect for diverse viewers and users" and "can reflect the history of the community, including the evolution of taste, values, and formal expressions as well as challenge previously held views." The Master Plan lists several "Priorities for Public Art," including "[p]rovid[ing] resources, training and mentorship for public art project development and management to organizations, collectives, neighborhoods, students, individual artists and the general public," "[i]ncorporat[ing] works of public art and performance in high-traffic transportation corridors and pedestrian areas" by "[c]ontinu[ing] the placement of works of public art in roundabouts and intersections" and "[e]ncourag[ing] community-based works of public art and performance that support neighborhood cohesion and vitality" by "[o]ffer[ing] opportunities for citizens to work directly with providers to develop art projects for their neighborhoods." …

2021 Middle Way House Public Art Display

In August 2021, the Board of Public Works approved a Special Event Application from the Middle Way House, a nonprofit organization providing services for survivors of domestic abuse, sexual assault, stalking, and human trafficking, for its annual "wrapped in love public art display," beginning on October 1, 2021, and ending on March 1, 2022. This public art display involved community participants wrapping trees and light posts located in various rights-of-way with knitted textiles and yarn "to raise awareness and funding for violence victim services."

2018 Prospect Hill Neighborhood Street Painting Party

In July 2018, the Board of Public Works approved a Special Event Application from the Prospect Hill Neighborhood Association to host a "Street Mural Painting Party" that involved "paint[ing] and clos[ing] the intersection of Fairview and Howe Street to install a public art project in the street." … The design that was ultimately selected and used for the project was called "Common Pollen" and consisted of a circular shape with points suggesting radiating petals of a sunflower….

2017 McDoel Neighborhood Street Painting Party

In July 2017, the Board of Public Works approved a Special Event Application from the McDoel Neighborhood Association subset "Dodds and Fairview Street Painting Group" to "paint and partially close the intersection of Fairview and Dodds Street" for a "Street Mural Painting Party." … The design that was painted on the intersection was approved by the City's Traffic and Transportation and Planning and Transportation Engineers and consisted of colorful spiraling sections that formed a turtle in the middle of the circle….

2017 Near Westside Neighborhood Association Block Party and Mural Painting Project

In May 2017, the Board of Public Works approved a request from the Westside Neighborhood Association in collaboration with the Department of Economic and Sustainable Development to hold "a neighborhood block party and traffic calming mural painting," on 7th Street Between Adams and Waldron Streets. The "traffic calming" devices referenced are concrete circles that surround planters located in the middle of intersections on 7th Street in Bloomington… The Department of Economic Sustainable Development worked with artist, Emily Wilson, to create a geometric design that was painted on the traffic calming devices during the block party. The design did not include any words, letters, numbers, or other universally understood symbols….

Congratulations to William Bock III, who's representing plaintiffs.