March 2023 - Parks & Recreation - 32

LAW REVIEW
community block parties at which
participants
painted
street murals.
Plaintiffs, however, claimed the City
had denied a " comparable request to
paint their [All Lives Matter] mural
for a pretextual reason, namely, that
the City does not accept recommendations
for public art in its rights-ofway
from private individuals. "
According to Plaintiffs, the City
had claimed " no application form
or process exists for the City to grant
authority for a private individual or
group to place a mural on the street
or other public rights-of-way. " Plaintiffs,
however, produced evidence
indicating " the City does in fact have
such a process, pursuant to which it
has approved on at least three prior
occasions applications from private
neighborhood associations to paint
murals directly on city streets. "
The federal district court found
" the details of the application process "
had " not been clearly developed. "
As characterized by the
court, the process involved private
individuals or groups initially submitting
an application with a special
event proposal to the City's Economic
and Sustainable Development
Department and/or the Arts
Commission. Once approved, " the
request for an encroachment on a
right-of-way for the purpose of displaying
public art is then presented
to the City's Public Works Department
for final approval. "
Limited Public Forum
The
City
claimed
this
approval
process did not create a " limited
public forum " for First Amendment
expressive activity on city streets.
According to the City, " none of the
approved murals contained words or
otherwise conveyed any particularized
message and were painted not by
32 Parks & Recreation | MARCH 2 0 2 3
private individuals or organizations. "
Instead, the City maintained these
murals were " part of city-sponsored
community-building projects in
furtherance of the City's stated goals
as set forth in its Public Arts Master
Plan 'of prioritizing public art' and
'encouraging community-based
works of public art and performance
that support neighborhood cohesion
and vitality.' "
While " the City worked closely
with the neighborhood associations
and their residents to develop the designs
that were painted on the street, "
the City argued it " retained final approval
authority over each of those
designs. " As a result, the City contended
" the City's efforts to involve its
residents in these neighborhood revitalization
projects does not open the
pavement of all city streets as a public
forum for any painted message. "
The federal district court rejected
the argument that the City had
not created a limited public forum
for acts of expression and speech
protected by the First Amendment
because non-BLM murals did not
" contain words, letters, or universally
recognized symbols to convey an
idea or message. "
While " the government need not
permit all forms of speech on property
that it owns and controls, " the
federal district court noted the government
" cannot discriminate based
on viewpoint... once the government
creates a forum for private speech on
its property, regardless of the type of
forum it has created " :
Viewpoint discrimination is an
egregious form of content discrimination,
and governments may not
regulate speech when the specific
motivating ideology or the opinion or
perspective of the speaker is the rationale
for the restriction.
| PARK S ANDRECRE AT ION . OR G
Likewise, when a government
program's very concept contemplates
presenting a diversity of views from
participating private speakers, the
government may not then single out
a particular idea for suppression because
it is dangerous or disfavored.
No Public Art Guidelines
In this particular instance, the federal
district court found " 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. " Instead, the court
found the City's Public Art Master
Plan had simply defined " public art "
very broadly to include " 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. "
As cited by the court, the City's
Public Art Master Plan had prioritized
" art created for the public
sphere " that gives " form to core
values of the community, such as
freedom of speech and expression,
alongside respect for diverse viewers
and users. " In addition, the court
found the Master Plan had indicated
the City's public art should 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 all members of
the general public to develop art to
be displayed in City rights-of-way, the
federal district court found the City
had " peremptorily denied Plaintiffs'
access to the application process on
grounds that the City does not take
recommendations for art in its rightof-way
from individuals. "
March 2023 - Parks & Recreation

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