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HomeMy WebLinkAboutMemorandum on Art and the First Amendment to Hyannis Waterfront 11.20.24IN MEMORANDUM To: Hyannis Main Street Waterfront Historic District Commission Cc: James Kupfer, Director of Planning & Development Karen Nober, Town Attorney Thomas LaRosa, First Assistant Town Attorney From: Allison Cogliano, Assistant Town Attorney Date: November 20, 2024 Re: First Amendment Limitations on Regulating Artwork Introduction It is important to understand that artwork is considered speech that is protected under the First Amendment of the U.S. Constitution. See Bery v. City of New York, 97 F.3d 689, 695 (1995). This means that any municipal regulation of artwork, by the Town or by any of its boards, committees or commissions, needs to be content-neutral in order to avoid violating the constitutional rights of the artist. Content-based regulations of artwork are subject to strict scrutiny by the courts, which means that for such regulations to be upheld there must be a compelling governmental interest for the regulation, and it must be the least restrictive means of achieving that interest. As a practical matter, it will be almost impossible for a Town board to meet that standard. Accordingly, when Town boards regulate artwork, such regulation must be content-neutral and viewpoint-neutral. (There are very limited exceptions to this rule, such as pornography and artwork which contains “fighting words” or defamation, which are not protected by the First Amendment.) The purpose of this memorandum is to distinguish between these two types of regulation as they pertain to the regulation of artwork on private property, as the distinctions are particularly important in ensuring that the Commission’s decisions and regulations are not improperly based on the content or viewpoint of the art in violation of the First Amendment. Content-Neutral Regulation Content-Neutral regulations apply in the same way to all artwork regardless of its content. Such regulations focus on time, place and manner of the artwork rather than the message it depicts. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). For example, rejecting a proposed painting due to its size (where the size is not critical to the artist’s proposed message) would be content-neutral. However, such size regulations would need to be applied to all artwork, regardless of the message being portrayed or image being depicted. Content-neutral regulations apply the same standards to all artwork regardless of the specific messages conveyed. They focus on non-communicative aspects such as public safety, traffic flow and noise levels, without targeting the ideas or themes presented in the art. See Metromedia, Inc. 453 U.S. at 507. Such regulations do not completely block avenues for artistic expression. During the Commission’s deliberations on the proposed Eugenia Fortes mural, members discussed the safety of the alleyway as well as potential surrounding construction concerns. If the Commission had rejected the project solely due to the proposed location in a dangerous alleyway, that would be content-neutral regulation, assuming those same standards were applied to other proposed artwork before the Commission. But, given the various content-related comments that were made by board members, it was clear that the rejection was not in fact based on content-neutral standards. When government regulates artwork in a content-neutral manner, the courts apply a less stringent level of review in determining whether or not a First Amendment right has been violated. It is only required that the regulation be narrowly tailored to serve a significant or important government interest. See McCullen v. Coakley, 134 S.Ct. 2518, 2534 (2014). For instance, if the Town rejects the proposal of a large, intricate mural in a high traffic area due to pedestrian safety, it is likely that this content-neutral regulation is constitutional and will be upheld. Content-Based or Viewpoint-Based Regulation Content-Based regulations apply to the specific content or message of the artwork. For example, rejecting a proposed mural based on the subject matter would be content-based, and rejecting a proposed mural because of the opinion or perspective it was conveying would be viewpoint- based. More specifically, during two of the Commission’s recent meetings which took place on August 21, 2024 and October 2, 2024, the Commission heard from the Cordial Eye on their proposed mural dedicated to Eugenia Fortes. Members of the Commission suggested the artist use a quote that was more uplifting or positive, describing the proposed quotes as “controversial”, “political”, “defiant”, “questionable” and “aggressive”. The Commission’s critiques on the artist’s proposed message was an attempt to regulate her speech based on its content and viewpoint and therefore violated her first amendment rights. Content-based regulation targets specific messages. They are explicitly concerned with subject matter and viewpoints expressed in artwork. See Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015). Such regulation, whether intended or not, may suppress ideas or prevent dissenting viewpoints from being expressed and poses a significant risk of censorship, limiting diversity in artistic expression and stifling creativity and public discourse. During the hearings on the proposed mural, several criticisms were expressed that were content- based. Several members of the Commission stated that they felt the mural should be “more inclusive” and suggested the addition of more elements to include the Asian community, for example. These suggestions were specifically directed at modifying the message intended by the artist. Further, members suggested different quotes be used to send a more uplifting message and labeled the quotes chosen as too political or controversial. Taking a step even further, certain members suggested the mural honor other individuals altogether. This is content-based regulation of art that directly impedes on the artist’s constitutional right to free speech. It is important to note that, in addition to a particular piece of art’s depiction of a specific message, idea, concept and/or emotion, the size, orientation, color or materials used may also be critical to the communicative intent behind the mural. Although such characteristics may be considered details that could be regulated in terms of time, place and manner, if an artist’s message is being portrayed through the colors chosen or the medium used, it is possible such regulations may actually be considered content-based, and, therefore, impermissible. As such, it is important to understand the reasoning behind an artist’s decisions. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969); Serra v. Gen. Servs. Admin., 347 F.2d 1045, 1047 (2nd Cir. 1988). During the presentation of the proposed mural, the Commission expressed concern with the color palette of the mural. In many cases, this could be considered content-neutral regulation. However, where the artist indicated that she had chosen to use a particular color to accurately depict the flowers native to Cape Cod, a key aspect of her piece, concerns regarding the color palette were in fact content-based. In order for a court to find that a content-based regulation is constitutional, the regulation is subject to strict scrutiny and must be narrowly tailored to achieve a compelling government interest as well as the least restrictive means of achieving that interest. This is the highest level of scrutiny applied by courts to government actions and is very difficult to meet. See Reed, 576 U.S. at 171 (2015). If the artist presenting the Eugenia Fortes mural had filed a lawsuit against the Town due to the Commission’s attempt at content-based regulation of her piece, it is highly unlikely that the Town could successfully defend the Commission’s actions. Conclusion Recognizing the distinctions between content-neutral and content-based regulation is vital in appropriately assessing proposed artwork on private property. Content-based regulations challenge the core principles of free speech and artistic freedom. By focusing on the time, place and manner of art rather than its content, we can successfully implement regulation that supports the arts, appropriately addresses community needs and avoids impinging on the First Amendment rights of our local artists. As the Commission works to create guidelines to review proposed art projects such as murals, it is imperative those guidelines be based on content-neutral standards, i.e., reasonable time, place and manner restrictions. Once those guidelines are developed, they should be applied fairly and consistently by the Commission to all proposed artwork on private property in the district. The Town Attorney’s office recommends the Commission vote to institute a moratorium on all public art on private property in the Hyannis Main Street Waterfront Historic District for a defined period of time, such as 6 months, while the Commission works to develop appropriate content- neutral guidelines for the Commission to use in considering proposals for such public art. Our office would be happy to assist the Commission and the Planning Department in those efforts. If you have any questions, please feel free to reach out to the Town Attorney’s office.