Federal judge to Bloomington: Create criteria for public art requests in right-of-way, allow application for “All Lives Matter” street mural
Bloomington could see an “All Lives Matter” mural painted on a downtown city street, after previously authorizing three “Black Lives Matter” street murals.
That’s because of a ruling from a federal judge last Friday.
Under Friday’s ruling, by Jan. 2 next year, the city of Bloomington has to come up with the procedures that private groups and people can use to request approval for use of the city’s rights-of-way to display public art.
The order says that the city has to “promulgate” the application procedure to the public within 45 days of the order, dated Nov. 18, 2022. The public that is described in the order explicitly includes Indiana University student Kyle Reynolds and the Indiana University Chapter of Turning Point USA, who filed suit against Bloomington in late February.
In their lawsuit, Reynolds and Turning Point asked the Monroe County circuit court to issue an injunction requiring the city of Bloomington to allow Reynolds to paint a street mural that states “All Lives Matter” on Kirkwood Avenue in front of the Von Lee building.
The “All Lives Matter” slogan is associated with opposition to the “Black Lives Matter” movement.
Because it dealt with Constitutional free speech and due process claims, Bloomington’s outside legal counsel was able to transfer the lawsuit to federal court.
Also a part of Friday’s order from Sarah Evans Barker, a Southern District of Indiana judge, is a prohibition against delaying the application process for Reynolds.
Barker’s order was in the form of preliminary injunction, which is based on the judge’s estimation that Reynolds has a reasonable likelihood of success on the merits of the case.
In part of her analysis, the judge found 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, Reynolds 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 Friday’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.
Friday’s ruling cites the city’s public art master plan as encouraging private individuals to create art to be displayed in city rights-of-way, but without any clear criteria.
Despite the City’s clearly expressed intent to encourage members of the general public to develop art to be displayed in City rights-of-way, including in “transportation corridors” and “roundabouts and intersections,” without regard to any established objective criteria or content-based limitations, the City peremptorily denied Plaintiffs’ access to the application process on grounds that “the City does not take recommendations for art in its right of way from individuals.”
The quote giving the reason for the city’s denial of Reynold’s application to create an “All Lives Matter” mural came from city attorney Mike Rouker, who had written to Reynolds:
The City of Bloomington’s Board of Public Works approves the placement of art in the public right of way. The City does not take recommendations for art in its right of way from individuals, and, at this time, the City is not considering adding additional art within its right of way.
Friday’s ruling pointed to the “apparent inaccuracy” of Rouker’s reason for Bloomington’s refusal to grant Reynolds permission to paint his “All Lives Matter” mural.
Given the apparent inaccuracy of this reason for the City’s denial and the fact that Plaintiffs’ chosen message is plainly in tension with the City’s publicly-espoused view [“Black Lives Matter”], we hold that Plaintiffs have demonstrated at least some likelihood of success in establishing that the City’s failure to permit them to submit a public art proposal in the same way other private groups have presented public art proposals for display in City rights-of-way was based on the viewpoint they sought to convey.
Bloomington is represented in the case by Liberty Roberts, with the Church Church Hittle + Antrim law firm. The fee is covered through the Bloomington’s policy with Argonaut Insurance Company.
