March 2023 - Parks & Recreation - 30

LAW REVIEW
Lives Matter " with blue and red lines
to represent support for first responders,
an IU official emailed Reynolds
indicating " the graphic and sizing
look good on my end. " The official
recommended Reynolds " relay to the
City that IU is OK " with the location
of an " All Lives Matter mural on the
Indiana University campus. " Reynolds
was told, however, that the City's
ultimate approval was required.
In an August 3, 2021 email, Reynolds
informed the City that the proposed
" All Lives Matter " mural had
been approved by the IU President's
Office. Reynolds was then told to
speak with " City Legal " about the
mural. On August 23, 2021, the city
attorney told Reynolds " the City
of Bloomington's Board of Public
Works approves the placement of art
in the public right-of-way, " but the
City " does not take recommendations
for art in its right-of-way from
individuals. " Moreover, at this time,
Reynolds was told " the City is not
considering adding additional art
within its right-of-way. "
In response,
Plaintiffs
petitioned
the federal district court to issue a
preliminary injunction reversing the
City's decision to withhold authorization
and approval of their request for
an " All Lives Matter " mural.
First Amendment Viewpoint
Discrimination
As noted by the federal district court,
a preliminary injunction would require
Plaintiffs to demonstrate a reasonable
likelihood of success on the
merits of their claim. In this case,
Plaintiffs maintained a reasonable
likelihood of success existed on their
claim because the City had " engaged
in viewpoint discrimination in violation
of their First Amendment
rights " by " withholding approval for
30 Parks & Recreation | MARCH 2 0 2 3
their proposed mural. "
In so doing, Plaintiffs claimed their
request to paint an " All Lives Matter "
street mural on a city-owned street
was unconstitutionally denied " while
permitting other private individuals
and groups to display public art on
the surface of City-owned streets and
other rights-of-way within the City,
including the 'Black Lives Matter'
street mural. "
Government Speech Doctrine
In response, the City maintained
the " government speech doctrine "
was applicable because " the three
Black Lives Matter murals painted
on City-owned streets were all messages
expressed by the City itself. "
As a result, the City contended these
government messages " did not render
the street surfaces designated or
limited public fora subject to First
Amendment scrutiny. "
As described by the federal district
court, " the government speech
doctrine
permits
viewpoint discrimination
when the government
speaks for itself " :
When the government wishes
to state an opinion, to speak for the
community, to formulate politics, or
to implement programs, it naturally
chooses what to say and what not
to say. When a government actor
speaks directly, it is not difficult to
conclude that such speech is attributable
to the government.
That being said, the court noted that
" the boundary between government
speech and private expression can
blur when a government invites the
people to participate in a program. "
Under such circumstances, the court
acknowledged the difficulty in determining
whether " governmentpublic
engagement transmits the government's
own message and when
| PARK S ANDRECRE AT ION . OR G
it instead creates a forum for the expression
of private speakers' views. "
As cited by the federal
district
court, the U.S. Supreme Court had
identified the following three primary
factors in determining whether
challenged speech is government or
private:
(1) [W]hether the medium has historically
been used to communicate
messages from the States; (2) whether
the medium is often closely identified
in the public mind with the State,
or can reasonably be interpreted as
conveying some message on the government's
behalf; and (3) whether the
government maintains direct, editorial
control over the message's content.
Further, in determining whether
the Government intends to speak
for itself or to regulate private expression,
the court would make a
" holistic inquiry " into the context of
a given case to ascertain " whether
the Government has purposefully
communicated a message of its own
choosing. "
In this particular instance, the federal
district court found: " on the admittedly
limited record before us, the
City has shown that the three BLM
street murals were government, not
private, speech " :
Here, when viewed holistically
and in context with the City's overall
plan for its BLM street murals, the
evidence supports a finding that all
three BLM murals constituted government
speech.
The evidence designated by Defendants
discloses that a group of
City employees and officially-selected
appointees to the City's Banneker
Advisory Council initiated the BLM
street mural project, specifically
choosing to express the " Black Lives
Matter " message in furtherance
of the City's May 2020 resolution
March 2023 - Parks & Recreation

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