Judicial Watch has sued the city of Washington, D.C., for access to paint their own slogan on the street in front of their headquarters. The effort is in response to the city government painting “Black Lives Matter” on a street near the White House while allowing protesters to paint “Defund the Police” next to it.
JW wants to paint “Because No One Is Above the Law” on a street near its headquarters.
Judicial Watch said the city has turned its streets into a public forum for political expression by painting and allowing the other messages, which means that it cannot shut out other competing messages or else it runs afoul of the First Amendment.
“DC streets surfaces are now being used as public fora for expressive activity,” Judicial Watch said one of its letters demanding access to the streets for its own painting.
The group said it would pay for the painting but needs the city to arrange to divert traffic. After three weeks of requests went effectively unanswered, Judicial Watch said it had to sue.
My sense is that D.C. opened the door to their streets becoming a “public forum for political expression,” and must now play ball or suffer the consequences.
Indeed, Judicial Watch alleges that not only did the city deny them equal access, but they clearly violated federal civil rights law.
“Mayor Bowser gave us the runaround rather than access, as the First Amendment requires, to a DC street to paint our timely message and motto: Because No One is Above the Law!” stated Judicial Watch President Tom Fitton. “Our message is especially relevant today because it applies equally to law enforcement and public officials as well as to protesters, looters, and rioters.”
On Tuesday, June 30, in response New York Mayor de Blasio’s announcement that “Black Lives Matter” is to be painted on prominent streets in all five boroughs, Judicial Watch formally asked the mayor for permission to paint “Because No One Is Above the Law” on a street, preferably Fifth Avenue between 81st and 83rd Streets.
Apparently, for liberal big-city mayors, only some political speech deserves to be emblazoned on streets.
Interestingly, one legal expert believes that D.C. is on “solid ground” when it comes to their own slogan being painted on a street but is on shakier footing when it comes to the protesters painting “Defund the Police.”
David L. Hudson Jr., a First Amendment fellow at the Freedom Forum Institute and a law professor at Belmont University, said the city is probably on solid ground with its own labeling. But allowing protesters to add their message may cross the line.
“The city can promote its own message and declare it government speech. Thus, the city could paint Black Lives Matter without having to allow other messages,” he said. “However if the city opens up the street to other private groups, then there is a good argument that by policy or practice it has created an open forum.”
But are city streets really an “open” public forum? Perhaps not, says another expert.
John Inazu, a law professor at Washington University in St. Louis, said when it comes to streets, there’s an “unstable line” between government speech, which can discriminate against viewpoints, and a public forum, which must allow access to all.
For example, he said, the city would be justified in permitting a Martin Luther King parade while excluding the Ku Klux Klan. So the question is whether the painted words make the street a public forum.
A federal court will decide that question.
Meanwhile, it’s entertaining to see D.C. Mayor Muriel Bowser and New York City Mayor Bill de Blasio squirm in trying to explain why some messages are more equal than others.