Civic Arts Commissioner Stephanie Anne Johnson wrote a commentary in the Daily Planet supporting the restrictions on free speech imposed on the city-run Addison Street Windows Gallery. Commissioner Johnson deserves a response and the First Amendment a robust defense.
Commissioner Johnson’s real quarrel is with the First Amendment. No one has argued that the city may not regulate the gallery. The city may impose reasonable time, space, and manner restrictions, as well as content- and viewpoint-neutral restrictions. The problem is that the “criteria” embraced by Commissioner Johnson are along the lines of “no images of guns”: a textbook example of content-based censorship prohibited by the First Amendment. The censorship by the curator of the gallery cannot be passed off as “curatorial judgment.”
The argument for censorship of public speech because it might negatively affect children is rejected by commonsense and the courts. If we subject all public art to an “appropriateness for children” test, we will be left with pure pablum. It is settled law that the state may not restrict speech accessible to adults to a level appropriate for minors. For example, the courts have struck down laws banning tobacco advertisements near schools (Lorillard Tobacco v. Reilly), and large parts of the Communications Decency Act, which purported to protect children from indecency (Reno v. American Civil Liberties Union).
The argument is made that the gallery is on the public right-of-way and therefore the range of allowed expression must be severely curtailed. The gallery is close to Shattuck Avenue which has a number of movie theaters that routinely display posters containing images of guns and other images that many might say glorifies violence, objectifies women, etc. No one would argue for censoring these movie posters by, for example, ban-ning all images of firearms. Nor would such censorship be allowed to stand by the courts.
Commissioner Johnson argues against various “negative and destructive ‘isms.’” The expression of these “isms” enjoys the protection of the First Amendment. The expression of racist beliefs by the Ku Klux Klan, and of sexist beliefs by various churches and religions are protected by the First Amendment, just as much as the expression of belief in racial and sexual equality. The First Amendment exists not simply to allow us to sing the praises of mom and apple pie, but most especially to protect unpopular speech. Even speech that makes us uncomfortable or angry or disturbs us profoundly.
On the specific case of the censorship of the “Art of Democracy” exhibit. Criteria such as “no images of guns” on art to be displayed in a city-run gallery constitute content-based censorship prohibited by the First Amendment. Therefore, the curator’s refusal to allow four posters in the exhibit to be displayed solely on that ground was unconstitutional. The gallery was a designated public forum at the time that the exhibit was canceled. Therefore, the appointment of a curator empowered to intrusively control the content of the forum was unconstitutional.
The response of the Arts Commission is disappointing. The commission has tried to change the gallery from a designated public forum to one where the law may provide more shelter for restricting free speech. The gallery has been a designated public forum ever since it was created nearly 20 years ago. Curtailing free speech by other means oughtn’t to be the commission’s response. Restating the curator’s job description to prevent unconstitutional censorship in the future is better late than never. However, these actions now cannot make the previous censorship legal, nor excuse the prior inaction of the Commission.
In February 2008, Doug Minkler and others asked the commission for help in preventing their art from being censored from the gallery. The commission did nothing. In October 2008, Art Hazelwood and Jos Sances eloquently stated the case against the curator’s censorship to the commission. The commission did nothing. How many other artists and exhibits were unconstitutionally censored from the Windows Gallery? Perhaps the commission has finally acted because the ACLU recently wrote the city about its unconstitutional actions regarding the gallery and citing legal precedents.
The commission has avoided the question of redress for the censorship and its own previous inaction. There would be no pressing need for the commission to rewrite the rules now if the city had acted within the Constitution and the laws. Will Tony Bergqusit, Melanie Cervantes, Anita Dillman, Doug Minkler, Jos Sances, and other artists who have been subjected to illegal censorship be invited to show their art at the gallery? The commission has an obligation to the censored artists and the citizens of Berkeley to provide prompt restitution.
Shankar Ramamoorthy is a Berkeley resident.