February 5, 2018

Court rules First Amendment allows cities to force property owners to patronize and publicly display artworks

By Anthony L. Francois Senior Attorney

At the same time that the City of Mount Dora in Florida is trying to fine property owners for the artistic decoration of their home, the City of Oakland in California is forcing property owners to patronize and publicly display artworks. Both of these coastal incursions on the First Amendment are wrong, but today the federal court in San Francisco allowed Oakland to continue its forced art program.

To provide a steady supply of commissions to local artists, Oakland requires the owners of most new home projects to purchase artwork for public installation. The City grows its collection of public art at the expense of home builders.

This dragoons private property owners into becoming art patrons, and then publicly displaying that art. Oakland argued that the First Amendment does not even apply to such compelled artistic expression. But though the court agreed with PLF that the First Amendment protects your decision whether to publicly engage in artistic expression, it ruled that the City could override your constitutional rights merely be asserting a reason (almost any reason) to do so. In doing so, the court departed from cases holding that government compelled speech either per se violates First Amendment freedoms or is at least subject to strict or intermediate scrutiny.

One problem with reasoning that a city can mandate public artistic expression based on a government desire to regulate the aesthetic quality of a home is that the same reasoning supports government decisions to prohibit the public display of art. In this, Oakland and Mount Dora are two sides of the same rational basis coin.


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Nemhauser v. City of Mount Dora

What started as artistic expression in Mount Dora, Florida, escalated into a bureaucratic nightmare for Nancy Nemhauser and Lubomir Jastrzebski. When the couple painted a van Gogh-style “The Starry Night” mural on a wall outside their house, the city declared the art “graffiti” because it didn’t match the color of the house. But when Nancy and Lubomir responded by painting a similar mural on the house, the city branded both as illegal “signs,” and fined them hundreds of dollars per day with orders to paint over the mural. On behalf of Nancy and Lubomir, PLF is challenged the city. We argued that banning such artistic murals is an abusive interpretation of the city’s sign ordinance, and violates the First and Fourteenth Amendments. In July 2018, Nancy and Lubomir declared victory when the city council voted to settle the lawsuit and allow the mural to remain.

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