New York City Mayor Bill de Blasio, to much fanfare and hoopla, instructed city government to paint on the street outside Trump Tower the words “Black Lives Matter.” He even assisted in the painting (see Featured Image above, via YouTube]

The placement of the paint job in front of Trump Tower was a clearly political statement by de Blasio, who was accompanied by Al Sharpton, among others.

The lettering is described as a “mural” by supporters, while others consider it politicpal graffiti and have attempted to paint it over with blue paint in support of the police.

NYC and de Blasio have studiously protectected the original paint job against such efforts.

In response, Women for America First (WAF), which reasonably could be described as a pro-Trump group though it is technically non-partisan, wants to paint its motto on a street in NYC, arguing that the city, having determined to paint a political message should not discriminate among political messages.

WAF wants the following painted in an equally prominent place: “Engaging, Inspiring and Empowering Women to Make a Difference!”

Here is the letter demand to de Blasio:

https://twitter.com/KylieJaneKremer/status/1283470256598646784

Not surprisingly, NYC has not granted permission. So WAF has filed a suit in federal court demanding the right to paint its own motto. The suit does not demand removal of the Black Lives Matter paint job.

[Note: Ronald Coleman Esq. is co-counsel for WAF in the lawsuit. He also represents Legal Insurrection in unrelated matters.]

The Complaint (pdf.) alleges, among other things, that “BLM is a political movement” and further:

10. The BLM movement is for all practical purposes affiliated with the Democratic Party and notwithstanding expressions of frustration by BLM activists with the leadership of that party, BLM is unquestionably hostile to the Republican Party.

* * *

13. Few politicians have made the commitment to BLM more central to their work in government that the Mayor of the City of New York, defendant Bill De Blasio, who is a Democrat.

* * *

15. As part of that commitment, on the morning of July 9, 2020, New York City employees – including defendant De Blasio – and private citizens began painting “Black Lives Matter” in large, bright yellow letters, as shown below, on Fifth Avenue in front of Trump Tower, a building owned and named after President Donald J. Trump and where he maintains a residence.

16. Upon information and belief, this painting of a public street, described by defendant De Blasio as a “mural,” was undertaken by the New York City Department of Transportation (“DOT”) at an initial cost of approximately $6,000 in funds allocated to the DOT for transportation-related purposes.

17. Pursuant to regulations posted by the City of New York at NYC Park’s website: https://www.nycgovparks.org/art-and-antiquities/temporary-guidelines/murals, citizens and organizations may only submit requests to paint murals in NYC Parks, not on New York City streets.

18. Nonetheless, based on the apparent change of policy concerning murals, on the evening of July 9, 2020, plaintiff submitted a request to defendant de Blasio requesting to paint a message of its own on a New York City street….

* * *

20. By the date hereof, plaintiff still has not received a response from defendant de Blasio regarding this request, which he acknowledged receiving in a press conference on July 23, 2020.

21. When questioned about the request, defendant de Blasio stated that the Black Lives Matter movement “transcends any notion of politics,” and he defended allowing the words to be painted on streets across the city while not approving similar mural requests from groups like the pro-cop Blue Lives Matter. “This is about something much bigger than any one group,” de Blasio added. ““This is about righting a wrong and moving forward. So I think that’s the right approach.”

22. Upon information and belief, the Black Lives Matter organization did not submit a formal request through established channels to submit such requests to paint its mural on Fifth Avenue or other duplicative murals that have subsequently been allowed, by defendants, to be painted on streets throughout New York City.

The Complaint alleges a single Count:

28. Defendants, acting under color of New York law, have deprived and continue to deprive plaintiff of its First Amendment Rights guaranteed by the U.S. Constitution in violation of 42 U.S.C. § 1983, by, inter alia:

a. Allowing New York City streets to be used for the painting of partisan political messages;
b. Denying plaintiff the timely opportunity to use New York City streets to paint its own political or expressive message;
c. Depriving Plaintiff of its right to paint a political or expressive message on a New York City street for reasons that are not narrowly tailored to a compelling government interest;
d. Depriving plaintiff of its right to paint a political or expressive message on a New
York City street for reasons that are not substantially related to an important government interest;
e. Failing to provide a reasonable basis for denying plaintiff the opportunity to paint its political or expressive message on a New York City street;
f. Favoring the viewpoint of the political message painted on Fifth Avenue and other New York City streets over the message plaintiff has requested to paint;
g. Expending DOT funds on painting, maintaining, and endorsing the expressive message of one organization over plaintiff’s message;
h. Failing to provide reasonable, non-arbitrary processes and procedures for timely consideration of plaintiff’s expressive message; and
i. Engaging in preferential political speech in favor of a partisan organization that supports his own political ambitions.

29. Plaintiff is suffering irreparable harm as a direct and proximate result of Defendants’ deprivation of Plaintiff’s First Amendment rights in violation of 42 U.S.C § 1983 and will continue to suffer such irreparable harm unless defendants’ unlawful conduct is enjoined.

30. Plaintiff has no adequate remedy at law.

The Relief Requested is equal access to paint the streets:

WHEREFORE, plaintiff respectfully requests that this Court:
a. Declare defendants’ conduct unconstitutional in violation of plaintiff’s First Amendment Rights and 42 U.S.C. § 1983;
b. Enjoin defendants from continuing to deprive plaintiff of its First Amendment rights as guaranteed by 42 U.S.C. § 1983;
c. Order defendants to issue a permit allowing plaintiff to paint its expressive message on Fifth Avenue at or near defendant’s mural or one of the substantially similar streets plaintiff proposed as reasonable alternatives for the same number of days as the “Black Lives Matter” mural has and will continue to exist on Fifth Avenue;
d. Award attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and
e. Grant any further relief this Court deems just and proper.

Separately, Judicial Watch has sued the District of Columbia in order to paint it’s own message on the street, “Because No One is Above the Law!”:

On June 5, 2020, after days of protests and riots in Washington, DC, led by the Black Lives Matter organization, Mayor Bowser authorized the painting of “Black Lives Matter” on 16th Street NW, and later authorized or allowed “Defund the Police” to be painted alongside it.

On June 10, 2020, Judicial Watch sent a letter requesting permission to paint “Because No One is Above the Law!” in the identical size and coloring of the “Black Lives Matter” painting on another DC street near its headquarters near Capitol Hill. Judicial Watch offered to pay for the cost of the painting and, citing the timely nature of the issue, asked for a response in three days.

Instead, after three weeks of emails with the Mayor’s office, Judicial Watch has yet to receive a substantive response to its street painting request.

The lawsuit alleges that DC officials denied timely, equal access to Judicial Watch to paint its own expressive message and violated federal civil rights law in:

(a) allowing District streets to be used for the painting of expressive messages, which constitutes protected, First Amendment activity, but denying Plaintiff (Judicial Watch) the timely opportunity to paint its expressive message on a District street for reasons that are not narrowly drawn to achieve a compelling government interest; (b) failing to provide a reasonable basis for denying Plaintiff the timely opportunity to paint is expressive message on a District street; (c) favoring the expressive messages painted on 16th Street NW and/or creating the appearance of endorsing those messages to the exclusion of Plaintiff’s message on a related subject matter; and/or (d) failing to provide reasonable, non-arbitrary processes and procedures for timely consideration of Plaintiff’s request to paint an expressive message on District streets.

I don’t think NYC or D.C. are required to permit political messages to be painted on streets. This may turn on whether the “Black Lives Matter” paint job is viewed as political. Considering the video of the anti-Trump message expressed when it was painted and the placement in front of Trump Tower, it’s hard to see how it’s not political.

New York City government having painted one clearly political message on the street, refusing other political messages to be painted in a reasonably similar manner raises legal concerns.

 

 
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