In finding that the conduct of the city council and the named aldermen  violated the artist’s First Amendment rights, the court noted that “the City does not own the Art Institute, and its officials have no more right to enter it uninvited and take the art off its walls than they would have to enter a private home and take ‘offensive’ art off its walls.” 16 F.3d at 148, citing Spence v. Washington, 418 U.S. 405 (1974). The court further noted that historically  “the visual arts have been a medium of political and social commentary,” and therefore are protected by the First Amendment’s guarantee of free speech.  Id.

The court was cautious to note that the First Amendment does not protect a speaker who solicits and induces his audience to commit a violent act, whether against himself or against others. 16 F.3d at 150, citing Brandenburg v. Ohio, 395 U.S. 444 (1969).  However, in such cases, proof is required that the danger of violence is “clear and present” and not merely theoretical.  Id.  In Nelson, there was no evidence that in creating and exhibiting “Mirth and Girth” as an entry in a student art competition the artist intended to provoke a disturbance or that the danger of any violence was real or substantial, notwithstanding that the art generated negative reaction, anger and outrage. 

The court also considered the circumstance where an artist’s intentions are innocent but the art inflames the public so as to cause injury to others.  In such an instance, the court emphasized that “First Amendment rights are not subject to the hecklers’ veto.”  16 F.3d at 150, citing Cox v. Louisiana, 379 U.S. 536, 551 (1965).   In such a circumstance, the rioters are the culpable parties, not the artist whose work unintentionally provokes them to violence.  Id.  As Judge Posner commented in Nelson, “Burn down Chicago over a painting?  Paris maybe, but Americans have never taken culture that seriously.” 16 F.3d at 150 (emphasis in original).  Accordingly, in Nelson, Judge Posner found that expressive and even politically charged art is rarely the type of speech that will justify intrusion or censorship by the government.  Id.

An analogous case is Cuban Museum of Arts and Culture, Inc. v. City of Miami, 766 F. Supp. 1121 (S.D. Fla 1991). In Cuban Museum, the museum brought an action challenging the municipality’s refusal to renew its lease.  The museum displayed the works of Cuban artists who continued to live in Cuba or had not renounced the Castro regime.  Such displays resulted in threats of violence, protests, and in one case, a bomb being planted under the car of an officer of the museum.  Over the course of time, audits into the museum’s activities were conducted by the City.  Finally, buckling to political pressure, the City chose not to renew the museum’s lease.  The court found that the museum’s conduct in displaying the controversial art was constitutionally protected, even if some of it fell within the scope of the Trading with the Enemy Act.” Id. at 1126.  See 50 U.S.C App. § 5.  The court found that the First Amendment:

[S]eeks to protect freedom of expression, whether those expressing ideas are members of a popular majority or members of an unpopular minority.  Moreover, the First Amendment must assure that the government does not curtail valid expression because a majority, a plurality, or any segment of its constituency wishes to prohibit or penalize that expression.  Indeed, the Supreme Court has stated that if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea because society finds the idea itself offensive or disagreeable. 

766 F. Supp. at 1130, citing Texas v. Johnson, 491 U.S. 397 (1989).

Similarly, in 1999, a controversial art exhibit in New York displayed a painting by Chris Ofili depicting the Virgin Mary covered in actual elephant dung.  The painting also contained photographs of buttocks and female genitalia in the background.  Then-Mayor Rudolph Giuliani publically voiced his personal objections to the exhibit, describing it as “sick,” “disgusting,” and “offensive.” Brooklyn Institute of Art and Sciences v. City of New York, 64 F.Supp. 2d 184 (A.D.N.Y. 1999).   The City formally demanded that the museum cancel the show, and when it refused to do so, the City withheld approximately $500,000 in funding budgeted for the support of the museum.  The City’s asserted prerogative was rejected in a judicial challenge brought by the museum.  In ordering the funding to be reinstated, the court found “there is no federal constitutional issue more grave than the effort by government officials to censor works of expression and to threaten the vitality of a major cultural institution, as punishment for failing to abide by government demand for orthodoxy.”  Id. at 193.  The court also found:

‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . .’  West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).  In keeping with that principle, the First Amendment bars government officials from censoring works said to be ‘offensive,’ Texas v. Johnson, 491 U.S. 397, 414 (1989), ‘sacrilegious,’ Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1592), ‘morally improper,’ Hannegan v. Esquire, 327 U.S. 146, 149 (1946), or even ‘dangerous,’ Regan v. Taxation with Representation of Washington, 461 U.S. 540, 548 (1983). 

64 F. Supp. 184 at 198.

The Brooklyn Institute of Arts and Sciences court also examined the Supreme Court’s opinion in Spence v. Washington, 418 U.S. 405 (1974), where the Supreme Court struck the application of a “flag misuse statute” against a college student hanging an upside-down American flag with a peace sign from his dorm window.  In Spence, the Court found that although the state may have desired to protect the sensibilities of the public, that goal was not a basis for suppressing ideas, particularly since anyone who may have been offended could simply avert their eyes from the display.  418 U.S. at 412. Accord, see Cohen v. California, 403 U.S. 15 (1071) where the Supreme Court reversed the conviction of an individual charged with disturbing the peace on grounds of “offensive conduct” for displaying a jacket bearing the words “Fuck the Draft” in a courtroom to protest the Viet Nam War.  As the court in Brooklyn Institute explained, “the communicative power of visual art is not a basis for restricting it but rather the very reason it is protected by the First Amendment.” 64 F. Supp. 2d at 202.

These cases demonstrate that municipalities, on occasion, act to impose their view as to what is proper and decent, jeopardizing artistic First Amendment rights and the rights of the public to view these creative expressions.  They further demonstrate that  when artists and institutions have  the courage or financial means to litigate these issues, the First Amendment has more often than not prevailed over the attempted restrictions on creative speech. 

Although not an art case, the recent decision in Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004), demonstrates the effect that police intervention may have on First Amendment expression.  In Bourgeois, the plaintiffs were members of an organization which annually protested government training of military leaders from other countries in combat and various counter-insurgency techniques.  The protest was attended by approximately 15,000 people each year.  In 2002, the City of Columbus instituted a policy requiring all participants in the protest to submit to a metal detector search at a checkpoint several blocks from the protest site.  If the metal detector went off, police would then physically search the individual.  It took approximately two hours to get through the metal detector checkpoints to the protest site.  The court found that the searches violated both the First and Fourth Amendments. 

The court determined that the City’s search policy violated the First Amendment in multiple ways.  First, the search policy placed an undue burden on free speech and association through the exercise of a government official’s unbridled discretion.  387 F.2d at 1316.  The  Supreme Court has repeatedly held that burdens on First Amendment rights imposed by executive officials are invalid in the absence of narrowly drawn, reasonable and definite standards for the officials to follow. Niemotko v. Maryland, 340 U.S. 268, 271 (1951.) Even if a particular restriction is an otherwise permissible content neutral regulation of the time, place or manner of speech, it is unconstitutional if a government official has unbridled discretion to apply it.  Burk v. Augusta, Richmond County, 365 F.3d 1240, 1256 (11th Cir. 2004).  The court in Bourgeois noted that the decision to implement searches was left to the chief of police’s personal discretion based upon whatever factors he deemed appropriate at any point in time.  The First Amendment does not permit the government to place burdens on speech and assembly in such an unprincipled, ad hoc  manner.  387 F.3d at 1318, citing Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (ordinance permitting county official to decide how much to charge for permit to hold public gathering was violative of the First Amendment since there were no objective factors articulating whether to issue a permit and, if so, how much to charge).   The court found that municipalities may not restrict speech based upon generic and open-ended standards such as “when public safety so requires” or “when the chief shall deem it advisable;” rather, an ordinance must include specific, non-conclusory factors to guide the executive official’s determinations.387 F.3d 1301, 1319, citing Niemotko, 340 U.S. at 271.

Second, the searches constituted a prior restraint.  “A  prior restraint of expression exists when the government can deny access to a forum before the expression occurs.”  Bourgeois, 387 F.3d 1303 at 1319, citing United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir. 2000). There is a heavy presumption that any prior restraint on the publication of information or ideas is constitutionally invalid.  Near v. Minnesota, 283 U.S. 697 (1931). The court noted that to enter the protest site, individuals had to be waived through a checkpoint by a police officer.  The officers were authorized to prevent people from assembling at the protest site if they refused to submit to a search or if they possessed certain items that were prohibited from the protest area.  Essentially, protesters needed the permission of the police to enter the area and to exercise their right to freedom of speech and assembly.  The court thus found that the searches constituted a prior restraint.  Bourgeois, 387 F.3d at 1319.  To be valid, a prior restraint must at the very least provide constitutionally adequate procedural safeguards for potential speakers: it must only be for a specified brief time in order to preserve the status quo and there must be an avenue for prompt judicial review. Id.   Moreover, the burden of going to court to suppress the speech and the burden of proof must rest with the government.  Id.  Because there was no way for protesters who were excluded at the checkpoints to seek meaningful judicial review prior to the end of the protest, the search process constituted an impermissible prior restraint.  United States v. Frandsen, 212 F.3d 1231 at 1237.

Third, the decision to institute the mass search policy was an impermissible content-based restriction upon speech.  Forsyth County v. Nationalist Movement, 505 U.S. 123 at 134.   Content-based restrictions on speech in public forums are subject to strict scrutiny requiring courts to determine whether the policy employs the least restrictive alternative to meet a compelling state interest.  United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).   The purported interest in Bourgeois was that of maintaining public safety, security and order for the protection of participants, law enforcement and innocent bystanders.  The city argued that the post-September 11th environment substantiated the government’s interest in public safety and security.  The court noted that there were other means to ensure public safety at the protest and the availability of alternatives cast doubt on the policy’s  being narrowly tailored.  The court specifically rejected the thesis that the government’s interest in combating domestic terrorism could be a legitimate rationalization for the restrictions on speech. Bourgeois, 387 F.3d 1301 at 1322.