[guest post by Dana]
Roughly two weeks after a massive Black Lives Matter street painting appeared in downtown Redwood City, Calif., it was washed away – leaving the asphalt without a trace of the message’s familiar bright yellow paint. But unlike in other cities where vandals targeting BLM murals have been arrested and even charged with a hate crime, this time it was the city that suddenly removed the artwork.
Despite granting permission for the temporary street art and even providing the paint for the July 4 project, officials in the Northern California city ordered the painting removed from its prime location late last week, KPIX reported.
Why would they do that? Well, a city spokeswoman claimed that there were issues of public safety involved, and fear that drivers might be confused by the mural, and traffic collisions might occur as a result. Or, perhaps it was because there was a request made to city officials to paint “MAGA” on public streets:
But supporters of the artwork, who have expressed outrage over its removal, point to another factor they say actually prompted the city to take action: one resident’s request to paint “MAGA 2020” along the same stretch of street.
“They made the decision to take Black Lives Matter off the street at the first person that proposed the MAGA 2020,” Redwood City resident Dan Pease, who spearheaded the effort behind the original art piece, told KRON.
The request came from local attorney Maria Rutenburg, who told The Washington Post late Tuesday that she emailed city officials just hours after the Black Lives Matter painting had been completed asking if she could also paint the truncated version of President Donald Trump’s 2016 campaign slogan nearby.
“I’m a Trump supporter and the slogan is important to me,” said Rutenburg, 44, who is white, arguing that once the well-known yellow words were painted on the street, it effectively became “a public forum.”
“Everybody has a chance of saying whatever they feel like,” she added. “My speech is just as important as BLM.”
The same City spokeswoman offered a vague explanation that the Black Lives Matter mural was “allowed as an extension of City efforts to preserve art related to the peaceful Black Lives Matter protests in Redwood City,” but that the mural was not “formally processed” and while the city provided Dan Pease with the yellow paint, there was an understanding that it would be allowed to remain on the street for a short, undetermined length of time.
Rutenburg claims that she did not intend for the BLM mural to be removed with her request. That was the city’s decision. And because there are horrible people on both sides of the political aisle who are disgusting, oozing pustules of hate on the ass of society, Rutenburg and her family are now facing death threats as a result of the mural being removed.
As to the larger question of whether roads become “public forums” when cities paint slogans like Black Lives Matter, here is Eugene Volokh :
No. In Pleasant Grove City v. Summum (2009), the Court recognized that a city is free to put up certain monuments in its parks—and to accept selected monuments from private groups—without having to put up or accept other monuments. Such monuments are government speech, and the government is free to discriminate based on viewpoint in choosing what messages to affirmatively promote this way:
A government entity has the right to “speak for itself.” “[I]t is entitled to say what it wishes,” and to select the views that it wants to express.
In the words of Rust v. Sullivan (1991), on which Pleasant Grove relied,
When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.
And that’s true of all viewpoints that the government chooses to express, however controversial or uncontroversial.
Now when it comes to private speech that merely uses the streets, sidewalks, or parks (rather than seeking to erect permanent or semipermanent structures there), the government must indeed allow all viewpoints and indeed speech of all kinds of content (setting aside the traditionally recognized exceptions, such as true threats). “Granting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would of course be unconstitutional,” and may be declared so whenever “a pattern of unlawful favoritism appears.” (Thomas v. Chicago Park Dist. (2000).) For a good example of that, see Hoye v. City of Oakland (9th Cir. 2011), which held unconstitutional a city policy restricting speech on city sidewalks around abortion clinics; the policy was ostensibly content-neutral, but the court found that the city enforced it in an unconstitutionally content-based way:
The City’s policy of distinguishing between speech that facilitates access to clinics and speech that discourages access is not content-neutral…. “[T]he fundamental principle behind content analysis is that government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” … To distinguish between speech facilitating access and speech that discourages access is necessarily to distinguish on the basis of substantive content. Asking a woman “May I help you into the clinic?” facilitates access; “May I talk to you about alternatives to abortion?” discourages it. Telling a woman, “It’s your right to have an abortion!” facilitates access; telling her, “If you have an abortion, you will regret it!” discourages it.
But when it comes to the government’s own speech, the government can pick and choose what to say. And that includes permanent or semipermanent items on sidewalks, on streets, or in parks, such as monuments, plaques, street signs (including for streets that have ideologically laden names), traffic control signs, electronic message signs put up by the Transportation Department, or ideological messages written on the pavement.
(Read his argument in its entirety.)