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