Jim Astrachan: Government Must Embrace Mural Message To Legitimize

Our founding constitutional documents on display is a form of government speech that is so important that two security guards are always standing watch over them day and night. Source: Photo by Jeff Reed for the National Archives, prologue.blogs.archives.gov.

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.

 

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4 comments

  1. I appreciate Mr. Jim Astrachan’s message! His message reminded me of last Christmas season when Christmas music blared from the roof of a building on High Street. I wondered then what the other religions in Town were thinking?
    Bill boards, street writing, banners, etc. call attention to an issue but how do they make changes? The real change is within each of us. Policies that assist make change. Are the street writings leading to changes? Is there an addendum to the statement BLM we are not hearing? The street writings may indicate the “What” but do we hear the “How” and “When?
    Utopia could be where we stop seeing color or any sort of discrimination and simply by kind and helpful to each other. This comes from within each of us.

  2. I just got off the phone with a 70-something African American lady who I “met” during the mask-making phase of the local initiatives to provide masks for folks in our area. Because she is mostly wheelchair-bound in her home, she has some time to call people to chat, and it is my privilege to be one of those people. So I asked her today what she thought about the local murals proposal. She said, “I think that if Black people see that, it’ll make them feel good. It would make ME feel good. With all the bad stuff that’s happened, and still is, somebody looking at that would think, “Hm. Maybe there are some good people in the world who care.'” She thought it would make local African Americans proud, as she imagined them driving into town to see it and to bring their families, so the kids could see. She pictured people from different races gathering together to talk, just because they were standing by the sign at the same time, who might come away from that one of those talks and think, “Those people were nice.” Simply put, her hope and prediction was that it would be life changing. No hidden agenda, no addendum; just “change within each of us.”

    Without a legal background, I can’t address the points in the article, but I did want to throw in 2 cents’ worth of some valuable, timely feedback from one Black life that matters, especially in response to Nancy’s letter.

  3. The town should focus on Educating the public and it’s visitors and not get buried in legal issues. At the foot of High Street, where slaves first stepped on Kent soil, is where a statue and/or permanent easel/sign should be to present the historical significance of what has come to light. Let history help educate generations to come so they can learn the truth in a manner that helps shapes the young minds of our future. We are in Maryland…a state that didn’t fly the Confederate flag and assisted slaves heading north to Pennsylvania. It would be better to invest in permanent informational display and save legal dollars for a better internet system for our downtown merchants and residents.

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