After the City of Bloomington allowed three Black Lives Matter street murals—and had allowed other "street art" projects in the public right-of-way by other community organizations—the Indiana University Chapter of Turning Point USA sought to paint an "All Lives Matter" mural. The City said no, and today Judge Sarah Evans Barker (S.D. Ind.) in Indiana Univ. Chapter of Turning Point USA v. City of Bloomington held that this was likely unconstitutional.
The Black Lives Matter murals were government speech, Judge Barker concluded, and the government can paint its own speech on its property without doing the same for rival viewpoints. But it was likely that the broader "street art" program was a "limited public forum" program for promoting private speech, the court held, and such a program couldn't discriminate based on viewpoint; the city had to reconsider the application in a viewpoint-neutral way. (The court did not hold that the mural had to be allowed, only that the application had to be reconsidered without viewpoint discrimination.) Here's the heart of the analysis:
While it is, of course, true that "the government need not permit all forms of speech on property that it owns and controls," and that the government can place varying kinds and levels of regulation on speech and expressive activity depending on the type of forum at issue, including in some cases by imposing content-based restrictions, it is axiomatic that, once the government creates a forum for private speech on its property, regardless of the type of forum it has created, it cannot discriminate based on viewpoint. {[E]ven in limited public and non-public fora, where the government has the most leeway to impose limitations on speech, the limitations it imposes must be viewpoint neutral.}
We have before us no evidence that the City has promulgated any criteria or guidelines, content-based or otherwise, that it applies in regulating the display of public art in its rights-of-way. To the contrary, the City's Public Art Master Plan … defines "public art" very broadly as including "any mode of temporary or permanent artistic expression or process that is funded through any source and is produced with the intention of making it available to the public." The Master Plan lists among the City's priorities to "[p]rovide resources … for public art project development" not just to "neighborhoods" but also to "organizations, … students, individual artists, and the general public" and to "[i]ncorporate works of public art … in high-traffic transportation corridors and pedestrian areas," by "continu[ing] the placement of works of public art in roundabouts and intersections."
The Master Plan explicitly recognizes that "[a]rt created for the public sphere can give form to core values of the community, such as freedom of speech and expression, alongside respect for diverse viewers and users[,] … seek to balance issues of originality, artistic quality and intellectual provocation with a respect for the diverse activities that take place in the public domain[,] … [and] can reflect the history of the community, including the evolution of taste, values, and formal expressions as well as challenge previously held views."
Despite the City's clearly expressed intent to encourage members of the general public to develop art to be displayed in City rights-of-way, including in "transportation corridors" and "roundabouts and intersections," without regard to any established objective criteria or content-based limitations, the City peremptorily denied Plaintiffs' access to the application process on grounds that "the City does not take recommendations for art in its right of way from individuals." Given the apparent inaccuracy of this reason for the City's denial and the fact that Plaintiffs' chosen message is plainly in tension with the City's publicly-espoused view, we hold that Plaintiffs have demonstrated at least some likelihood of success in establishing that the City's failure to permit them to submit a public art proposal in the same way other private groups have presented public art proposals for display in City rights-of-way was based on the viewpoint they sought to convey…. "Suspicion that viewpoint discrimination is afoot is at its zenith where the speech restricted is speech critical of the government, because there is a strong risk that the government will act to censor ideas that oppose its own."
