Bloomington works to heed court’s order on art, means temporary delay on OK for Freezefest 2023

A special events application to hold the third annual Freezefest downtown in the Trades District area would have normally received a straightforward approval from Bloomington’s three-member board of public works on Tuesday night.

It’s an ice carving festival set to take place along Maker’s Way from Jan. 15 to Jan. 22, and features a chili cook-off at The Mill, a coworking space located in the former dimension mill of the Showers Brothers Furniture Company.

Instead of receiving an approval, the Freezefest application was pulled from the meeting agenda.

The reason Freezefest didn’t get a vote on Tuesday is not related to any controversy related to Freezefest itself. In fact, the festival’s special event application will likely be approved at the board’s next meeting, on Dec. 20.

But for now, Freezefest falls under a moratorium on special events applications, which the board of public works imposed on Tuesday.

The moratorium is related to litigation against the city of Bloomington that arose out of a request to install an “All Lives Matter” street mural on Kirkwood Avenue, in response to the city’s three “Black Lives Matter” street murals.

In a mid-November ruling, the federal court ordered Bloomington to come up with an application process for installing private art in the public-right-of-way—by Jan. 2, 2023.

In the wording of the court’s order, Bloomington has to “promulgate and disseminate…the procedural steps whereby private individuals and groups can seek approval for an encroachment on the city of Bloomington’s rights-of-way for the purpose of displaying public art.”

Bloomington’s new policy on installing private art in the public right-of-way was hoped to be ready for approval by the board of public works at Tuesday’s meeting. As of the board’s Monday work session, that was still the intent.

But as it turned out, the new policy on private art in the public right-of-way was not ready by Tuesday night’s meeting. City attorney Mike Rouker told the board, “Unfortunately, we’re still working on it. And so we don’t have it quite ready for the board to consider.”

The new policy is expected to be ready for the board’s adoption by the time of the board’s next scheduled meeting, on Dec. 20.

In the meantime, the legal department asked the board to impose a moratorium on special events applications, because, according to a memo from city attorney Mike Rouker, “In the past, private individuals and groups have utilized the special event application process for the installation of private art in the right-of-way.”

The memo continues, “Because the city is the process of revising the protocols that govern the installation of private art in the right-of-way, the current protocols are uncertain—both for the public and the board.”

As a special event, in particular an event where a private entity installs objects that could be considered “art” in the public right-of-way, Freezefest’s application was taken off Tuesday’s board of public works agenda, to comply with the moratorium.

In the federal court case, the judge found partly in favor of Bloomington. Specifically, the judge concluded that Bloomington’s three “Black Lives Matter” murals amount to “government speech” by the city of Bloomington. The “government speech” doctrine permits allows viewpoint discrimination when the “government speaks for itself.”

That is, the judge found there was not a forum created by those BLM murals for the expression of different viewpoints. Based just on the three BLM murals, the plaintiff could not claim viewpoint discrimination, according to Friday’s ruling.

The locations of the three BLM murals were: Elm Street across from the Banneker Community Center; 6th Street just north of the Monroe County courthouse; and Eagleson Avenue across from Neal-Marshall Black Culture Center Library.

But the court’s ruling found likely viewpoint discrimination in the forum created by some other public art projects, and the city’s public art master plan—which were not government speech.

Among those projects were: a 2021 Middle Way House public art display, a 2018 Prospect Hill Neighborhood street painting party, a 2017 McDoel Neighborhood street painting party and a 2017 Near Westside Neighborhood Association block party and mural painting project.