Street mural: Bloomington attorney says application should be denied, because it contains speech

It looks like the table is now being set for the next phase in a pending federal lawsuit against the city of Bloomington.

An application to paint a mural on Kirkwood Avenue with the phrase “All Lives Matter” appears on the Bloomington board of public works agenda for Tuesday, March 14.

The application for the mural was made by Turning Point USA at Indiana University.

Bloomington’s city attorney, Mike Rouker, has recommended that the application be denied, because the design includes “speech” as defined by a new city policy on such art in the public right-of-way.

Bloomington’s policy was adopted by the board of public works at its Dec. 20, 2023 2022 meeting.

The board’s action to adopt a new policy was taken because Bloomington was under a federal court order to develop and promulgate rules for private entities to install art in the public right-of-way.

That order came in connection with a lawsuit that Turning Point and Indiana University student Kyle Reynolds filed, after being denied permission to paint their “All Lives Matter” mural in 2021. The court found that the city’s refusal in 2021 to allow Reynolds to paint his mural likely amounted to viewpoint discrimination, and issued a preliminary injunction.

A key element of the policy is that for a private entity to use the public right-of-way to install permanent or semi-permanent art, the artwork cannot include “speech.” Permanent or semi-permanent art is defined as art expected to last longer than seven days.

The policy defines “speech” as “words, letters, numbers, or universally recognized symbols, or logos of any kind.”

The requested mural obviously includes words, so it would conflict with the new city policy on permanent or semi-permanent art.

The staff report to the board of public works describes some back and forth since the late 2022 application was made.

The staff report for Tuesday’s board of works meeting concludes that: “The applicant consciously declined to submit an alternative design consistent with the Policy.” The report adds: “Therefore staff is forwarding the present application to the Board and recommending that the Board deny the application as inconsistent with the Policy.”

The “All Lives Matter” slogan is associated with opposition to the “Black Lives Matter” movement.

As a part of the initial ruling in the lawsuit, the judge said that the three “Black Lives Matter” murals that had been installed in Bloomington were “government speech.” That means the BLM murals were not a part of the public forum that the court thinks has been established by other art installations—through the city’s neighborhood grant improvement program and special events program.

For the still pending lawsuit over the mural, there’s been no new activity reflected on the case docket since Jan. 4, 2023, when a status conference was held.

After the board of public works decides the question of the mural application on Tuesday, that could lead to a next round of legal skirmishing.

The board of public works typically gets a preview of its Tuesday agenda on the Monday before.

The Monday (March 13) work session, with the Tuesday agenda preview, starts at noon.

The Tuesday (March 14) regular meeting of the board of public works starts at 5:30 p.m.