July 29, 2015

Is the Constitution cooler than public art? Not in Oakland

By J. David Breemer Senior Attorney

Watch out! The government-subsidized artists in the San Francisco Bay Area are coming!  As this news article explains, Bay Area artists are not happy about Pacific Legal Foundation’s recent legal challenge to the City of Oakland’s compelled public art ordinance.  The ordinance forces new developers to put public art on their property or hand over cash so the City can put art on its own property, before developers get permission to build.  This mandate applies to new residential as well as commercial projects.  All required art must be done by local Oakland artists chosen from a list approved by City bureaucrats.

This is a great make-work program for local designers doing work like this or this. So, it is not too surprising that some in the artist community rushed to the City’s defense when PLF filed its lawsuit on behalf of the Builders Industry Association of the Bay Area and threatened the artists’ new cash cow.

It is, however, a bit illogical. PLF’s lawsuit claims, in part, that the City’s new public art mandate violates developer’s First Amendment free speech rights.  Those rights include the right to refrain from speaking, and art is clearly a form of speech. Thus, requiring property owners to install the works of government-approved artists forces the owners to speak against their will. It requires property owners to publicize ideas that are not their own, and which they would not otherwise present, before they can exercise the right to use their property.   This is not “free” speech; it is compelled speech.

You’d think artists would be sympathetic to such claims, since the robust defense of the First Amendment protects the artists’ own right to express themselves.  And perhaps some are generally sympathetic– except apparently,  not in this case.   See, not only would the City lose compelled developer art funding if PLF’s lawsuit prevails, but Oakland itself would lose its cool  factor.  As a spokesman for a City art group explained here, “its not too much” to ask developers to “support art that will keep Oakland cool.”  Yeah man!  If the City can’t force developers to pay for public art, then that art may not happen and without that, Oakland would just stop being so darn rad.

Many in Oakland would probably prefer if the City was known for a low crime rate and good jobs – and respecting constitutional rights  — rather than being “cool.”  But  that is probably because these people have never sat for hours and marveled at public art like this:

Perhaps if they had, they might join the City’s quest to squash constitutional rights (only of a disfavored class, of course) to fund art that will keep Oakland awesome. On the other hand, they might conclude that no one should be forced to install or pay for this stuff against their will.

If Oakland’s citizens decide they want more public art, there is a right way to do it: through the use of general tax funds.  The City is free to use such funds to create a sweet art program, or even a really lame one.  But nothing justifies foisting the burden of meeting this general public need on a relatively few property owners.  Not only is this very uncool policy — because higher building costs will stop needed construction and the jobs it brings — it is contrary to constitutional free speech and property rights. Developers, as well as artists, are entitled to have those constitutional rights respected – – even if that is not always the chillin’ thing to do.

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Building Industry Association Bay Area v. City of Oakland

An Oakland city ordinance requires anyone building a new residential or commercial project to either create a government-approved display of art or subsidize artists to create a display elsewhere in town. PLF represents the Building Industry Association of the Bay Area in a lawsuit challenging this law as violating the constitutional prohibition on taking money as a permit condition to fund government projects that are not directly related to the construction for which the permit is sought. Moreover, the law violates the First Amendment by forcing property owners and developers to engage in expressive activity.

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