It is well settled that it violates the U.S. Constitution for the government to engage in speech discrimination based on political viewpoint.
So how did U.S. District Judge Lorna G. Schofield of New York City justify dismissing a lawsuit filed by a pro-Trump women’s group that was denied a permit in July 2020 to paint a mural on NYC streets after the city condoned eight yellow “Black Lives Matter” murals on its streets?
Judge Schofield ruled the BLM murals do not constitute private or political speech, which would require the court to apply strict scrutiny. Rather, she said the BLM murals are “government speech” that spread the message “that these are our values in New York City.”
Judge Schofield compared the BLM murals to a display of a donated Ten Commandment monument in a public park or a state’s approval of specialty license plates.
The plaintiff in the case, Women For America First, wanted to paint the following message: “Engaging, Inspiring and Empowering Women to Make a Difference!” (Not, apparently, reflecting the values in New York City?)
Political Content Irrelevant
Judge Schofield does not address the fact that BLM is a political organization that espouses Marxist views. Apparently, that’s not relevant.
“Whether the “Black Lives Matter” message has political content is not relevant to the question of whether the Murals constitute government speech,” said Judge Schofield. “Put simply, appeal to voters does not render the ‘Black Lives Matter’ message private rather than government speech.”
She said the city did not create a public forum on its streets “when it engaged in government speech… The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”
Private Speech
Judge Schofield ruled the women’s group lacked standing to prohibit the city from granting permits to paint BLM murals on city streets because “interference with the government’s ability to paint or preserve any mural on New York City streets could pose serious, potentially unwarranted limitations on the government’s ability to communicate with the public.”
The sole issue, said Judge Schofield, is whether the women’s group itself had a right to paint its mural on a city street. She said it did not.
Judge Schofield agreed with prior U.S. Supreme Court rulings that public streets are a place of assembly where citizens can communicate but she said this is far different from an “endorsement of the use of the face of a street … as a message board for private speech.” She referred to a local regulation that prohibits “writing painting and drawing on New York City streets, absent express opinion.”
Then Judge Schofield imposed a restriction on the plaintiffs that was not an impediment to the BLM murals. “[I]n light of potential traffic-safety risks, Plaintiff has not shown a substantial likelihood that it will be able to establish that Defendants’ denial of Plaintiff’s proposed mural was either unreasonable or based on viewpoint.”
So the bottom line is that it is government speech to effectively advertise the name of a leftist political group with Marxist leanings on city streets, but it is verboten private speech when a pro-Trump woman’s group wants to paint an uplifting message about women.
But this has nothing to do with politics.
The case is Women for Am. First v. De Blasio, 20 Civ. 5746 (S.D.N.Y. Feb. 18, 2020).
Note: Black Lives Matter quietly changed its messaging in September 2020 by eliminating liberation language (i.e. “comrades”) from its website and it’s goal to “disrupt the Western-prescribed nuclear family structure… by supporting each other as extended families and ‘villages’ that collectively care for one another, especially our children… ” This followed a shop drop in the group’s favorability rating amid ongoing riots and violence in cities across the country.