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The First Amendment Revisited: Municipal Regulation of Speech, Censuring Board Members, and Regulation of Art

While local governments have constitutional and statutory authority to regulate matters within their jurisdictions, those powers are not without limits. Governmental regulations can be called into question when they implicate the First Amendment. This E-Letter will discuss recent court decisions dealing with the First Amendment and how those cases could pertain to your municipality. Those cases include areas that municipalities often face, such as the use of flags related to residents and citizen groups, the ability of public bodies to censure their own members, and the regulation of outdoor art displays.

Municipal Regulation of Speech: Shurtleff v City of Boston, Massachusetts

The controversy discussed in Shurtleff involved a city flagpole flown outside of city hall. The city had allowed private groups to request to use the flagpole to raise flags of their choosing for flag-raising ceremonies and to fly it for the duration of the ceremony, which was typically a few hours. The city did not have a record of denying requests, but did so for a request to fly a “Christian flag” in light of concerns surrounding the establishment clause. A lawsuit ensued in which it was alleged the city had violated the group’s First Amendment speech rights. The issue was eventually heard by the United States Supreme Court.

The Supreme Court first considered whether the city’s flag flying program was “government speech.” Unlike private speech, a government may choose what to say and what not to say without free speech implications. Governments should be careful with their speech, however, because it can become commingled with private speech – and if that happens, the First Amendment is again at issue. The Supreme Court therefore had to consider the legal implications of the city at issue in this case allowing private citizens to raise flags on its flagpoles. The Court summarized the question in the following manner:

“The boundary between government speech and private expression can blur when, as here, a government invites the people to participate in a program. In those situations, when does government-public engagement transmit the government’s own message? And when does it instead create a forum for the expression of private speakers’ views?”

The Supreme Court took a “holistic approach” in answering this question, indicating that its case law suggested reviewing several types of evidence, including: [1] “the history of the expression at issue; [2] the public’s likely perception as to who (the government or a private person) is speaking; and [3] the extent to which the government has actively shaped or controlled the expression.”

The Supreme Court found that some evidence in this case favored the city, while some evidence favored the private group. For example, the Court noted that it is true that the flying of a flag other than a government’s own can convey government speech, such as the flying of the American or the state flag. The Court also noted an instance in which the city had lost a bet with a Canadian hockey team and had to hoist the Montreal Canadiens’ flag as retribution. The Court’s look at the relevant “history” therefore did not resolve the question at issue.

The Court next considered the fact that the flagpole in question flew side-by-side with matching flagpoles outside of a city building that typically flew the American flag and the state flag. The Court reasoned that, under those facts, the public would likely see the flags as conveying the government’s message. Still, the Court also noted that flags flown by private groups during private events for a short period of time without the city’s presence may lead to the public’s association of the private flag with the group celebrating and not the city. The evidence concerning public perception was consequently inconclusive.

The city’s “control” over the private flag raising was next discussed – and, notably, there seemed to be none. The city’s control was limited to controlling the date and time of the raising of the private flags, the maintenance of the plaza where the event occurred itself, and the provision of a hand crank to do the raising. The city argued that the other unique flags it had raised reflected city-approved values or views, which the Court noted may be true with respect to pride flags, for example. But, other flags had been flown that seemed to contradict this statement. A credit union flag, for example, raised concern. The Court nonetheless honed in on the city’s lack of written policies or guidance about what flags groups could fly. It stated:

“The city’s lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward.”

The Court indicated that the city could have made it clear that it wished to speak for itself by providing in writing that its flagpoles are not intended to serve as a forum for free expression and that approved flags may be flown as an expression of the city’s sentiments – but it did not. The speech at issue consequently did not constitute government speech and, in light of that holding, was an unlawful exclusion of a religious viewpoint that violated the First Amendment’s speech rights.

At first blush, the Court’s holding in Shurtleff may seem to evidence a slight rejection of the government speech doctrine. However, its dicta makes clear that governments may continue to make speech that relates to its values or views, even in conjunction with private groups or individuals, so long as an appropriate approach is taken.

Censuring Board Members: Houston Community College System v Wilson

This case concerns a public college system’s Board of Trustees censure of one of its members. The Board consisted of nine members who were elected for six-year terms. One member of the Board often disagreed with his colleagues and even brought various lawsuits challenging the Board’s actions. The Board responded by publicly reprimanding the dissenting Board member. The Board member did not take the reprimand lightly and in the ensuing months “charged the Board in various media outlets with violating its bylaws and ethical rules . . . arranged robocalls to the constituents of certain trustees to publicize his views . . . [and] hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her.” He additionally sued the public entity twice. It was reported that those lawsuits cost the public entity over $20,000 in legal fees. This was in addition to the $250,000 the public entity had spent in total legal fees due to earlier litigation.

The Board subsequently censured the dissenting Board member by adopting a public resolution indicating that his conduct was inconsistent with the public entity’s best interests and “reprehensible.” The Board additionally imposed penalties, including making the member ineligible for Board positions or travel reimbursements. He also was required to seek approval to access funds for community affairs. The dissenting member filed suit, arguing in part that the Board’s censure violated the First Amendment. He argued that the public entity had wrongly retaliated against him for his speech.

The issue was considered by the Supreme Court of the United States. When presented thereto, the Court first looked to history. The Court noted that “elected bodies in this country have long exercised the power to censure their members.” The history of the use of censures by public bodies throughout time suggested then that First Amendment implications did not arise in this context.

The Court next looked at its contemporary doctrine which requires an individual pursuing a First Amendment retaliation claim to show “among other things, that the government took an adverse action in response to his speech that would not have been taken absent the retaliatory motive.” What constitutes an “adverse action” can be something as larger as an “arrest, a prosecution, or a dismissal from governmental employment.” It can also be less harsh, but the Court indicated that “no one would think that a mere frown from a supervisor constitutes a sufficiently adverse action to give rise to an actionable First Amendment claim.”

To determine whether the Board’s action at issue here constituted an impermissible adverse action, the Court looked at two things: (1) that the dissenting member was an elected official; and (2) that the adverse action at issue was the Board’s own speech. As to the first, the Court signaled that “[w]hen individuals consent to be a candidate for a public office conferred by the election of the people, they necessarily put their character in issue, so far as it may respect their fitness and qualifications for the office.”

Second, the public resolution censuring the member was a form of speech from the Board that concerned the conduct of public office. The Court reasoned that while the First Amendment does allow the dissenting member to speak freely on questions of government policy, it did not silence the other members’ ability to do the same. The censure was therefore a form of speech by the other Board members. It did not prevent the dissenting member from doing his job or deny him the privileges of his office. The censure did not deter him from exercising his own right to speak.

In siding with the public entity, the Court noted that this does not mean that reprimands or censures can never give rise to a valid Frist Amendment retaliation claim. A censure or reprimand that materially impairs First Amendment freedoms may still give rise to a valid claim. Public bodies should nonetheless be cognizant that the Court’s holding in Wilson was narrow. It can be applied to situations in which an elected body censures one of its own members, but it may not necessarily protect a body when it retaliates with “expulsion, exclusion, or any other form of punishment.”

Public Displays of Art: What is Protected by the First Amendment

Has your township ever had an outdoor display on citizen property that it wanted to remove? Before acting, townships should reflect and question whether the display qualifies as art protected by the First Amendment. If the outdoor display is art protected by the First Amendment, a township cannot remove the artwork simply because the municipality dislikes its content. Fortunately, First Amendment protected artwork is not immune from local regulation. Artwork must comply with generally applicable content neutral regulations a municipality may have adopted. Read on to learn more about how courts have treated municipal regulation of art in the past.

A. What Is Art?
As a baseline rule, art is entitled to First Amendment Protection. See, e.g., Hurley 515 US at 569 (remarking that examples of painting, music, and poetry are “unquestionably shielded”); Ward v Rock Against Racism, 491 US 781, 790, 109 S Ct 2746, 105 L Ed 2d 661 (1989) (“Music, as a form of expression and communication, is protected under the First Amendment”); Schad v Mount Ephraim, 452 US 61, 65, 101 S Ct 2176, 68 L Ed 2d 671 (1981) (“Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee”); Kaplan v California, 413 US 115, 119–20, 93 S Ct 2680, 37 L Ed 2d 492 (1973) (“Pictures, films, paintings, drawings, and engravings … have First Amendment protection”). Artistic expression has been determined by one circuit to include four traditional categories of visual art, including: paintings, photographs, prints, and sculptures. Bery v City of New York, 97 F3d 689, 696 (CA 2, 1996).

Compared to other categories of expressive conduct, art need not contain a readily understandable message to warrant First Amendment protection (“[a]s some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a “particularized message,” cf. Spence v. Washington, 418 U.S. 405, 411, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (per curiam ), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.”) Hurley 515 US at 569. This principle has been recognized and accepted in the Sixth Circuit where Michigan is located. Condon v Wolfe, 310 Fed Appx 807, 820 (CA 6, 2009). By not requiring art to have a clearly identified meaning, art is a more protected category of speech than other expressive conduct. This means there is a low threshold for what is considered “art.”

B. Art & Generally Applicable Content Neutral Regulations
While visual art is protected by the First Amendment, expressive conduct occurring on both public and private property must comply with generally applicable regulations. The test for regulating expressive conduct occurring on public or private property was identified in US v O’Brien, where it was determined:

[W]hen “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. . . . [A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest. . .

US v. O’Brien, 391 US 367, 376-77, 88 S Ct 1673, 1679, 20 L Ed 2d 672 (1968). The Supreme Court added to this standard in Ward v Rock Against Racism. In that case, the Court identified that a time, place, or manner regulation must be narrowly tailored to serve government’s legitimate, content neutral interest, but regulation need not be the least restrictive or least intrusive means of doing so. Ward 491 US at 799. “[N]arrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest.” Id. at 782–83. A law or regulation is not greater than is essential to further the government interest if the law or regulation leaves open ample alternative channels of communication. Id. at 802.

The O’Brien and Ward standards have been applied in cases addressing visual displays on private property. Consider Davis v Norman, where a father was prohibited from displaying the wrecked truck his son died in as the result of a police chase. 555 F2d 189, 190 (CA 8, 1977). The Truck was displayed on private property—the father’s front lawn. Id. The truck was removed because it was an “abandoned vehicle” under the ordinance. Id. Applying the O’Brien test, the court reasoned that the point of the abandoned vehicle was to protect “the community from the health and safety hazards created by abandoned, wrecked and inoperable vehicles” and was “unrelated to the suppression of free expression.” Id. at 191.

This same analysis has also been applied by the Fifth Circuit when evaluating a non-operative motor vehicle that had been painted with the phrase “make love not war” and retrofitted for use as a flower planter in front of a private business. Kleinman, 597 F3d at 324. Since the ordinance prohibiting junk vehicles did not regulate the content of the speech, “make love not war,” the court did not apply strict scrutiny. Id. at 328. Like Davis, the court applied intermediate scrutiny using the O’Brien standard. Applying O’Brien, the court upheld the junk motor vehicle ordinance because it was intended to prevent an “attractive nuisance to children,” the ordinance tended “to reduce urban blight, vandalism, and the depressing effect of junked vehicles on property values” and was not intended to regulate speech at all. Kleinman 597 F3d at 328.

Consider also Burke v City of Charleston where a city denied an artist a permit for the display of a large mural the artist painted on the exterior wall of a restaurant located in a historic preservation district. Burke v City of Charleston, 893 F Supp 589, 592 (DSC, 1995), vacated 139 F3d 401 (CA 4, 1998) (judgment vacated because Plaintiff lacked standing see Burke v City of Charleston, 139 F3d 401 (CA 4, 1998). The permit was denied because the mural did not match the “style, form, color, proportion, texture and material” of the buildings in the historic preservation district. Burke 893 F Supp at 602. The court first addressed whether the ordinance governing murals was content neutral. Id. at 609. Observing that ordinance only limited murals’ color, size, and other factors, the court observed that it did not modify what was being painted (i.e., the content of the mural), but regulated the “mode of delivery of speech.” Id. Since the city was regulating murals to gauge their conformity with the historic preservation district and not to “stifle, suppress or interfere with the content or message of protected speech, it meant the ordinance was content neutral.” Id. at 610.

Second, the court observed that the mural ordinance served a substantial government interest because “[i]t is well settled that aesthetic interests, promotion of tourism, economic growth, and preservation of property values are significant governmental interests” and that “aesthetic interests, and the desire to avoid “visual clutter,” were sufficiently substantial interests to justify a content neutral prohibition against the use of billboards on public property.” Id. citing New Orleans v Dukes, 427 US 297, 96 S Ct 2513, 49 L Ed 2d 511 (1976) and Members of City Council of Los Angeles v Vincent, 466 US 789, 104 S Ct 2118, 80 L Ed 2d 772 (1984).

Finally, the requirement was whether the mural ordinance was unconstitutional “as applied” to the plaintiff. Burke 893 F Supp at 610. This factor was gauged on whether the regulations left “open ample alternative channels of communication.” Id. Since the city’s ordinances did not prohibit the display of artwork “in interior locations, or in areas beyond the relatively small Old and Historic District” the court determined there were sufficient open channels for communication.

Townships cannot predict when citizens will create an outdoor display and claim that it is art. Townships can control whether they have adopted sufficient ordinances to prohibit these displays from becoming a nuisance. We encourage townships to review certain ordinances they may have adopted including but not limited to blight and sign ordinances, so the township is aware of what tools it has to regulate certain art displays. Should you have concerns about an art display in your township or would like a review of your existing ordinances to assess your township’s ability to respond to art displays, reach out to the experienced municipal attorneys at Fahey Schultz Burzych Rhodes PLC.

By Kendall O’Connor and Jake Fox

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

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