As Chestertown decides whether to allow a group of citizens to paint a city street with a slogan calling attention to the long-standing plight of African-American citizens it ought to consider whether it can live with the results which may become use of public streets by others to present opposing views or entirely unrelated political views. Once opened the door may be hard to shut.
A decision by the town to prevent similar expression of a subsequent view on a particular subject once BLACK LIVES MATTERS is permitted to be painted on high Street may be considered viewpoint discrimination by singling out one group’s perspective for publication while preventing the publication of an opposing view point. If for example the town refused the painting on Cross Street of ALL LIVES MATTER or BLUE LIVES MATTER it would appear to have taken sides, an especially offensive position for the government to take when viewed through the kaleidoscope of the First Amendment. A government may not take sides by regulating another’s speech when the rationale is in the message.
Something along these lines occurred in Cincinnati were many private groups were permitted to display signs on the public square and fountain, but where the KKK and the Congregation Lubavitch were denied permission to post their signs. That distinction was an act that discriminated between favorite groups such as the Kiwanis and non-favorite groups such as the Klan. Once the door opens the town can’t reserve the right to approve or disapprove requests based on the message intended to be conveyed. Once a decision is made to allow groups to use the street to paint messages, it becomes very difficult to prevent others from expressing their viewpoint without engaging in viewpoint discrimination. In other words, regardless of the message all should be entitled to their expression of a viewpoint.
There is, however, a potential work around this problem and it illustrates the complexity of the issue facing the town should it proceed. The solution requires that the message be sponsored or produced by the town making it government speech. This occurs because the government cannot engage in viewpoint discrimination. The government is entitled to say what wishes and to express those views it wants to express, whether that be BUY US SAVINGS BONDS or BLACK LIVES MATTER. This exception likely applies even if the painting is not done by the government but by its helpers. This exception has been applied even to privately supplied monuments erected on public land as the government has been held to have had final control over those messages.
Still these actions have the ability to draw the town into potential litigation that becomes expensive, acrimonious and news worthy. The town’s options should be carefully reviewed, as should the possible consequences of each option. There is a forest of cases on the subject that have reached the Supreme Court and, in each case, I am sure, both sides thought they were right.
Jim Astrachan is an attorney who writes about First Amendment and Second Amendment issues from his home on the Chester River and teaches on constitutional subjects.