Art in Transit: Where We Are Now by 9S760l

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									Airport Art and the
 First Amendment


     Matthew K. Schettenhelm
    Miller & Van Eaton, P.L.L.C.
          Washington D.C.
 mschettenhelm@millervaneaton.com
     “festive” or “whimsical,” or
calculated to “foster an atmosphere
of amusement, enjoyment, or FUN.”
The First Amendment
“Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging
the freedom of speech, or of the
press; or the right of the people
peaceably to assemble, and to
petition the Government for a
redress of grievances.”
Basic Principles
<1>
    Content-Based and
Viewpoint-Based Regulation
Above all else
The government “has no power to
restrict expression because of its
  message, its ideas, its subject
     matter, or its content.”
      Content-based =
     Ban on discussion
         of certain
       issues/topics

    Viewpoint-based =
Ban on discussion of certain
viewpoints on those issues.
e.g.
  Content-Based Regulation: No
 discussion of health care reform
Viewpoint-Based Regulation: No
arguments in favor of health care
            reform
<2>
Public Forum
            Public Fora
• Traditional Public Forum
• Designated Public Forum
• Non-Public Forum
(a)
Traditional Public Forum
Places that have “immemorially
been held in trust for the use of
  the public . . . for purposes of
    assembly, communicating
 thoughts between citizens and
  discussing public questions.”
e.g.
Streets, sidewalks, and public parks
(b)
Designated Public Forum
Property which the state has
opened for use by the public
  as a place for expressive
           activity
Key Characteristic:
Intent
Government intends to grant
general access to speakers for
      public discourse.
Key point:


     Courts look to both policy
          and practice.
e.g.
     University meeting facilities,
       school board meetings,
     municipal theatres, and . . .

. . .(sometimes) . . . public art displays.
(c)
Non-public forum
All other governmental property
e.g.
Why does the “forum” matter?
Regulation of Speech in a Public
            Forum
 Regulation of Speech in a Public
             Forum
• Governments may not regulate based on the content
  or viewpoint of speech unless the regulation is
  narrowly tailored to serve a compelling governmental
  interest.

• This test is very difficult to meet.

• Governments may regulate the “time, place, and
  manner” of speech within the public forum if the
  regulation is content-neutral, serves an important
  interest, and leaves open alternatives.
             Valid?
“No rallies in support
of health care reform”:   Unlikely.

“No rallies regarding     Unlikely.
 health care reform”:
Regulation of Speech in a
   Non-Public Forum
    Regulation of Speech in a
       Non-Public Forum
• Governments may regulate speech
  if the regulation is viewpoint-
  neutral and “reasonable.”

• Courts use “common sense” to test
  reasonableness.
             Valid?
“No rallies in support
of health care reform”:   Unlikely.

“No rallies regarding     Maybe.
 health care reform”:
Oberwetter v. Hilliard, Civ.
   Action No. 09-0588
  (D.D.C. Jan 25, 2010)
•Mary Brooke Oberwetter and 17 of
her friends gathered on the eve of
Jefferson’s birthday.
•“Tribute” -- 5 minutes to
midnight, began “expressive
dance.”
•Arrested: no demonstrations.
Court:
         No First Amendment
              violation.
  Regulation “viewpoint neutral and
  reasonable in light of use to which
       the forum is dedicated.”
Airports?
Airports banned:

   Solicitation of money

   Distribution of literature
     Airport Terminal ≠
     Traditional Public
           Forum

    Airport Terminal ≠
  Designated Public Forum

Airport Terminal = Non-Public
           Forum
    Regulation of Speech in a
       Non-Public Forum
• Governments may regulate speech
  if the regulation is viewpoint-
  neutral and “reasonable.”

• Courts use “common sense” to test
  reasonableness.
Regulation of solicitation: Reasonable
Regulation of leaflets: Not Reasonable
Thus . . .
Lesson 1:     Transit facilities are
            generally not considered
                  public fora
But
Within
e.g.
Advertising displays,
 newsracks, and . . .
 public art displays
People for the Ethical Treatment
of Animals, Inc. v. Gittens, 215 F.
   Supp. 2d 120 (D.D.C. 2002).
D.C. had created a “limited”
       public forum
Had Not Been Reasonable In
   Applying Standards
     “festive” or “whimsical,” or
calculated to “foster an atmosphere
of amusement, enjoyment, or FUN.”
Inconsistency
Hopper v. City of Pasco,
241 F.3d 1067 (9th Cir.
        2001).
   City of Pasco, Washington,
    opened City Hall for art
            displays


Had a policy of “non-controversial”
                art
But
     In Practice: Did Not
            Screen

“We didn’t select the artists. We
   did not pass any qualitative
 judgment on anybody. We just
    simply said: These are the
people who have agreed to hang
this month and we can take this
             many.”
   “In Awe”
Janette Hopper
Court:


   Public forum for art
    had been created
 Regulation of Speech in a Public
             Forum
• Governments may not regulate based on the
  content or viewpoint of speech unless the
  regulation is narrowly tailored to serve a
  compelling governmental interest.

• This test is very difficult to meet.

• Governments may regulate the “time, place,
  and manner” of speech within the public
  forum if the regulation serves an important
  interest, and leaves open alternatives.
Court:

  The City did not have a
 compelling governmental
    interest to justify
elimination of only certain
     controversial art
Lesson 1:      Transit facilities are
             generally not considered
            public fora, but there can
            be fora within the facility.

Lesson 2:    Adopt clear policies
            about what art will be
              selected and how
Lesson 3:      Be consistent: Both
               policy and practice
                     matter
<3>
Governmental Speech
 The Free Speech Clause of the
  First Amendment “restricts
government regulation of private
   speech; it does not regulate
      government speech.”
Pleasant Grove City, Utah v.
         Summum,
  No. 07-665 (S. Ct. 2009)
City had 11 privately donated
  displays in a public park,
       including a Ten
Commandments monument.


Summum sought to erect a
monument with “the Seven
 Aphorisms of Summum.”
 Does the First Amendment
require the City to accept the
         monument?
No.
Court:

     The monuments in
        the park were
        governmental
     speech, not a public
      forum for private
           speech.
  “Permanent monuments
displayed on public property
     typically represent
    government speech.”
Non-permanent monuments?
“There may be situations in
 which it is difficult to tell
   whether a government
  entity is speaking on its
own behalf or is providing a
 forum for private speech,
   but this case does not
 present such a situation.”
Key:

    Governmental speech
  doctrine is still developing.
    People for the Ethical
 Treatment of Animals, Inc.
v. Gittens, 414 F.3d 23 (D.C.
          Cir. 2005)
Reversed the district court
Court:
         This is governmental
                speech.

          Discussed Supreme
            Court decisions
              regarding
         governmental speech:
 “Forum analysis and heightened
judicial scrutiny are incompatible
  with the government’s role as
   patron of the arts, television
broadcaster, and librarian.” Arkansans
Educational Television Commission v. Forbes, 523 U.S. 666 (1998)
As a librarian, the government
must “have broad discretion to
decide what material to provide
to [its] patrons.” United States v. American
       Library Association, 539 U.S. 194 (2003)
     As an arts patron, the
  government is free to make
“esthetic judgments.” National
   Endowment for the Arts v.
  Finley, 524 U.S. 569 (1998).
   “‘[C]ompilation of the speech of
  third parties’ is a communicative
 act. As a speaker, and as a patron
 of the arts, the government is free
  to communicate some viewpoints
 while disfavoring others, even if it
 is engaging – to use PETA’s words
– in ‘utter arbitrariness’ in choosing
        which side to defend.”
Caution:

      Governmental speech
    doctrine is still developing.
 “There may be situations in
  which it is difficult to tell
whether a government entity
is speaking on its own behalf
  or is providing a forum for
private speech, but this case
   does not present such a
           situation.”
Lesson 1:         Transit facilities are
                generally not considered
               public fora, but there can
               be fora within the facility.
Lesson 2:       Adopt clear policies
               about what art will be
                 selected and how.
Lesson 2(a):          Emphasize
                 governmental speech.
 Lesson 3:          Be consistent.
http://www.tjcenter.org/ArtOnTrial/
            Questions

     Matthew K. Schettenhelm
  mschettenhelm@millervaneaton.com

      Miller & Van Eaton, P.L.L.C.
1155 Connecticut Avenue, N.W. Suite 1000
      Washington, D.C. 20036-4301
       Phone:       202-785-0600
           Fax: 202-785-1234
        www.millervaneaton.com
                                      Credits
       Ten Commandments -- http://www.deseretnews.com/photos/midres/6234331.jpg
              Sad Elephant -- http://www.circuses.com/images/elephant_front.jpg
            Sad Elephant 2 -- http://www.circuses.com/images/elephant_side1.jpg
         Supreme Court -- http://farm1.static.flickr.com/23/37621686_0dcd0e12e5.jpg
         Elephant 1 -- http://farm2.static.flickr.com/1194/1357192396_9fccc056a8.jpg
        Elephant 2 -- http://farm2.static.flickr.com/1129/1333089757_8e773620c5.jpg
         Elephant 3 -- http://farm2.static.flickr.com/1194/1357192396_9fccc056a8.jpg
            D.C. Party Animals -- <div xmlns:cc="http://creativecommons.org/ns#"
            about="http://www.flickr.com/photos/notionscapital/3268158351/"><a
                                    rel="cc:attributionURL"
href="http://www.flickr.com/photos/notionscapital/">http://www.flickr.com/photos/notionsca
   pital/</a> / <a rel="license" href="http://creativecommons.org/licenses/by/2.0/">CC BY
                                         2.0</a></div>
            Jefferson Memorial= <div xmlns:cc="http://creativecommons.org/ns#"
             about="http://www.flickr.com/photos/tonythemisfit/2820047615/"><a
                                    rel="cc:attributionURL"
href="http://www.flickr.com/photos/tonythemisfit/">http://www.flickr.com/photos/tonythemis
    fit/</a> / <a rel="license" href="http://creativecommons.org/licenses/by/2.0/">CC BY
                                         2.0</a></div>

         First Amendment Rally = <div xmlns:cc="http://creativecommons.org/ns#"
          about="http://www.flickr.com/photos/anonymous9000/2772919704/"><a
                                  rel="cc:attributionURL"
href="http://www.flickr.com/photos/anonymous9000/">http://www.flickr.com/photos/anonym
 ous9000/</a> / <a rel="license" href="http://creativecommons.org/licenses/by/2.0/">CC BY
                                        2.0</a></div>
                 Lee decision = Cornell Univeristy Law School, available at:
                   http://www.law.cornell.edu/supct/html/91-155.ZS.html
                       Powerpoint style -- roughly -- Prof. Larry Lessig.
    “In awe” -- http://www.thefirstamendment.org/images/NCFE/Chapter%201/awe.jpg

								
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