Before: James R. Browning, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge McKeown; Partial Concurrence and
Partial Dissent by Judge Gould
OPINION
McKEOWN, Circuit Judge:
This case is a study in the politics and law of public art. Janette Hopper and Sharon Rupp are artists whose works were excluded
from public display at the Pasco City Hall Gal lery in Pasco,
Washington, because city officials deemed their art too "controversial." As the district court put it: "The gist of the case is that
plaintiffs were invited to display their work at city hall, and
then summarily disinvited when their submissions provoked controversy."
The parties agree that the art is not obscene or pornographic.
Instead, the case boils down to a matter of taste and perception.
Hopper and Rupp filed suit against the City of Pasco ("Pasco")
under 42 U.S.C. S 1983 for violation of their First Amendment
rights. The district court granted Pasco's motion for summary
judgment, and denied Hopper and Rupp's motion for partial summary
judg- ment, holding that the city hall is a non-public forum
and that Pasco's decision to exclude their works was reasonable.1
We hold that Pasco violated the artists' First Amendment rights
by creating a designated public forum and then excluding their
artwork without a compelling governmental interest. Therefore, we reverse the district court's grant of summary
judgment for Pasco, reverse the district court's denial of Hopper
and Rupp's motion for partial summary judgment, and remand for
further proceedings.
I. BACKGROUND AND PROCEDURAL HISTORY
In 1994, Pasco remodeled an abandoned school building to create
a new city hall. Faced with an expanse of barren walls, Gary
Crutchfield, the City Manager, and his administrative assistant,
Kurt Luhrs, decided to invite local artists to display their
works in the public hallways. Rather than expend limited resources
to have the city administer an arts program, Crutch- field and
Luhrs commissioned the Arts Council, a private organization,
to manage the program for $500 a quarter, for at least one year.
According to their agreement, each quarter the Arts Council would
make arrangements to exhibit art- work, provide hanging supplies,
design and mount the exhibit, publish and mail a flyer to announce
the exhibit, and issue press notices. If the program proved successful,
Crutchfield planned to seek permanent funding from the City Council.
At the outset, Luhrs and Crutchfield sought to avoid controversy.
Indeed, an uncontroversial program was a prerequisite, in their
view, to eventually obtaining permanent funding from the City
Council. Luhrs made this clear in the following letter to Barbara
Gurth, Director of the Arts Council:
Following our conversation this morning, I felt it was important
to provide you with some assurances regarding the city's commitment
to developing an art gallery in the new city hall. …
"Personally, my greatest fear is bringing such a program to council
and having various citizens with a conservative "bent" raise
issues that have caused trouble for the National Endowment for
the Arts, i.e. offen- sive or politically motivated art. Through
our discussions, I feel assured that the Arts Council will not
use the City Hall Gallery as a venue for controversy…"
Likewise, in an initial notice to announce the arts program and
to invite submissions, Gurth repeated Luhrs' admonition:
Requirements for acceptance: Artworks will not be jured
[sic] in the usual sense, but all works will be screened for
content and professional presentation.
. . .
Subject matter: Wide open, but with the restraints that would
be accepted with a public arts project paid for with public
money. To offer a quote from a city official's letter regarding
this project ". . . my greatest fear is . . . having various
citizens . . . raise issues that have caused trouble for the
National Endowment for the Arts, i.e., offensive or politically
motivated art. Through our discussions I feel assured that
the Arts Council will not use the City Hall Gallery as a venue
for controversy."
[T]he Council will reserve the right to reject a subject matter
that the committee feels may present a problem for a conservative
public sector . . . .
(Emphasis added).
Despite these admonitions, the arts program was run without any
pre-screening process, and the city provided no further definition
or guidance as to what kind of work would be considered inappropriate.
There was no selection process to monitor quality, content, or
controversy. As a result, the Arts Council rejected no artwork
during the entire length of the program, which included three
separate exhibits that ran from October 1995 through March 1996….
Nor did the city review works prior to their placement in the
gallery. Instead, the artist simply provided a list of works to be included
and signed a contract with the Arts Council agree- ing to leave
the works up for the full three months of the exhibit and to
give the Arts Council a twenty percent commis- sion on any pieces
purchased…
Although it is undisputed that no one pre-screened or other-
wise rejected art prior to the exclusion of the works by Hop-
per and Rupp, there is conflicting evidence as to the reason
for failure to pre-screen. Gurth testified that it "was always
understood" that the city had the ultimate say as to what kind
of art would be displayed..
Shortly after the works were excluded from the Gallery, Crutchfield
terminated the arts program altogether, and Hop- per and Rupp
filed this action. On cross-motions for summary judgment, the
district court held that Pasco City Hall is a non- public forum,
and that Hopper and Rupp produced no evi-dence that the city
intentionally created a forum for public expression by creating
the Gallery. The court placed special emphasis on the city's
expressed desire to avoid controversial works as proof that it
did not intend to open its halls indis- criminately to public
expression. Thus, although the court agreed that "[w]hen it came
to execution . . . the expectation of `invitation only' turned
into a come-one-come-all affair," it reasoned that Pasco's failure
to screen the art did not belie its stated intent to restrict
access. The court declined to decide whether the arts program
was the product of a municipal policy for the purpose of establishing
Pasco's liability under Monell v. Department of Social Services,
436 U.S. 658 (1978).
III. ANALYSIS
A. First Amendment Violation
1. Categories of Fora
[1] The Supreme Court instructs us that, in assessing a First
Amendment claim for speech on government property,"we must identify
the nature of the forum, because the extent to which the Government
may limit access depends on whether the forum is public or nonpublic."
Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788,
797 (1985). If the forum is public, "speakers can be excluded . . . only
when the exclusion is necessary to serve a compelling state interest
and the exclusion is narrowly drawn to achieve that interest."
Id. at 800. If, on the other hand, the forum is non-public, the gov- ernment
is free to restrict access "as long as the restrictions are `reasonable
and [are] not an effort to suppress expression merely because
public officials oppose the speaker's view.' " Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 46 (1983)).
A designated public forum exists where "the government intentionally
opens up a nontraditional forum for public discourse." Id. "Restrictions on expressive activity in designated public
fora are subject to the same limitations that govern a traditional
public forum," i.e., strict scrutiny. Id. at 964-965 (citing
International Soc'y for Krishna Conscious- ness v. Lee, 505 U.S.
672, 678 (1992)).
The designated public forum has been the source of much confusion.
As this court has put it, with considerable understatement, "The
contours of the terms `designated public forum' and `limited
public forum' have not always been clear." DiLoreto, 196 F.3d
at 965 n.4. Some courts and commentators refer to a "designated
public forum " as a "limited public forum" and use the terms
interchangeably. But they are not the same, at least not in this
circuit.6 Rather, a limited pub- lic forum is a sub-category
of a designated public forum that "refer[s] to a type of nonpublic
forum that the government has intentionally opened to certain
groups or to certain topics." Id. at 965.7 "In a limited public
forum, restrictions that are view- point neutral and reasonable
in light of the purpose served by the forum are permissible."
Id. (citing Rosenberger v. Rector & Visitors of the Univ. of
Virginia, 515 U.S. 819, 829 (1995); Lamb's Chapel v. Center Moriches
Union Free Sch., 508 U.S. 384, 392-93 (1993)).
[3] In other words, the fact that the government has opened a
nonpublic forum to expressive activity does not determine whether
we must apply strict scrutiny or the lower reasonableness standard.
Rather, we must examine the terms on which the forum operates
to determine whether it is a designated public forum or a limited
public forum. If a forum is a "designated public forum," we apply
strict scrutiny. But if it is merely a "limited public forum,"
then we apply the reasonableness test. See DiLoreto, 196 F.3d
at 965 ("[F]irst we must determine whether the fence was a designated
public forum subject to heightened scrutiny or a limited public
forum subject to a reasonableness standard.").8
2. Designated Public Forum Versus Limited Public Forum
Here, then, our initial task is to determine whether the Pasco
City Hall Gallery constituted a designated public forum or a
limited public forum. If we classify the Gallery as a des- ignated
public forum, we must decide whether the city's deci- sion to
exclude plaintiffs' works was justified by a compelling interest.
If, on the other hand, we determine that the Gallery is a limited
public forum, we need only decide whether the exclusion was reasonable
and viewpoint-neutral.
[4] As the Supreme Court observed in Cornelius, govern- ment
intent is the essential question in determining whether a designated
public forum has been established:…
[5] The "policy" and "practice" inquiries are intimately linked in
the sense that an abstract policy statement purporting to restrict
access to a forum is not enough. What mattersis what the government
actually does -- specifically, whether it consistently enforces
the restrictions on use of the forum that it adopted….
[C]onsistency in application is the hallmark of any policy designed
to preserve the non-public status of a forum. A policy purporting to keep a forum closed (or open to expression
only on certain subjects) is no policy at all for purposes of
public forum analysis if, in practice, it is not enforced or
if exceptions are haphazardly permitted. See Grace Bible Fellowship,
Inc. v. Maine Sch. Admin. Dist. No. 5, 941 F.2d 45, 47 (1st Cir.
1991) (in public forum analysis, "actual practice speaks louder
than words")….
Courts have also been reluctant to accept policies based on subjective
or overly general criteria. " `[S]tandards for inclu- sion and exclusion' in a limited public
forum `must be unam- biguous and definite' if the `concept of
a designated public forum is to retain any vitality whatever.'
" Christ's Bride, 148 F.3d at 251 (quoting Gregoire v. Centennial
Sch. Distr., 907 F.2d 1366, 1375 (3d Cir. 1990). Absent objective
standards, government officials may use their discretion to interpret
the policy as a pretext for censorship….
In addition to these factors, courts examine the selectivity
with which the forum was open to particular forms of expression. In general, the more restrictive the criteria for admission
and the more administrative control over access, the less likely
a forum will be deemed public….
Finally, courts consider whether the expressive activity is consistent
with the principal function of the forum. Cornelius, 473 U.S. at 804. This inquiry focuses on the specific
space to which the would-be speaker seeks access, but should
also take into account the context of the property as a whole.
DiLoreto, 196 F.3d at 968.
It is undisputed that Pasco opened its display space to expressive
activity by retaining the Arts Council to manage a gallery with
exhibitions by local artists. This evinces an intent to create
a designated public forum. Pasco argues, however, that its stated policy--memorialized in
the agreement with the Arts Council--demonstrates that it did
not intend to establish a public forum, but only to display noncontroversial
art. Put otherwise, the city contends that it opened only a limited
(rather than a designated) public forum. This argument is unpersuasive.
[7] The city's so-called policy of non-controversy became no policy
at all because it was not consistently enforced and because it
lacked any definite standards. …
The potential for abuse of such unbounded discretion is heightened
by the inherently subjective nature of the standard itself. A ban on "controversial art" may all too easily lend itself
to viewpoint discrimination, a practice forbidden even in limited
public fora.12 See Cohen v. California, 403 U.S. 15, 25 (1971)
(describing the inability of government officials to make principled
distinctions on matters of taste and warning that censorship
on this basis offers "a convenient guise for banning the expression
of unpopular views"); Hustler Maga- zine, Inc. v. Falwell, 485
U.S. 46, 55 (1988) (permitting civil liability for "outrageous"
social commentary invites view- point discrimination); see also
Federal Communications Corp. v. Pacifica Foundation, 438 U.S.
726, 745-46 (1978) ("[T]he fact that society may find speech
offensive is not a sufficient reason for suppressing it . . .
. government must remain neutral in the marketplace of ideas.").
Not only was Pasco's policy intrinsically flawed, its enforcement
of the pol-icy was, in practice, contingent upon the subjective
reactionof viewers of the artwork, as perceived by the city manage-
ment.13 Such "censorship by public opinion" only adds to the
risk of constitutional impropriety. Cf. Texas v. Johnson, 491
U.S. 397, 408-409 (1989) (invalidating ban on flag-burning where
offense hinges on audience reaction).
This is not to say that community standards of decency have no
place in the regulation of government property; our cases merely
insist that such standards be reduced to objective criteria set
out in advance. In the absence of such guideposts, we must scrutinize
Pasco's actual practice all the more closely for apparent inconsistency
or abuse in enforcing the policy….
Other factors considered by courts in designated public forum
analysis also favor the artists here. Unlike cases involving
commercial speech, the purpose of the exhibitions here was purely
aesthetic and expressive -- the city hoped to pro- mote and display
the work of local artists as a means of beau- tifying the new
city hall. Moreover, the nature of the property is consistent
with the expressive activity at issue here. The city created
the exhibition program and invited the participa- tion of local
artists because it hoped to increase the aesthetic appeal of
the new city hall by adding art.
3. Strict Scrutiny
Having determined that the city created a designated public forum,
we now consider whether the city's reasons for excluding the
artists' work can survive strict scrutiny. See Perry, 460 U.S. at 45-46 (In a public forum,"the rights
of the State to limit expressive activity are sharply circumscribed
. . . . For the State to enforce a content-based exclusion it
must show that its regulation is necessary to serve a compelling
state interest and that it is narrowly drawn to achieve that
end.")…The city steadfastly maintains that its exclusion of plaintiffs'
works was not "censorship" since Hopper and Rupp "have been free
to show their art throughout the City, other than [at] city hall."
The art, in Pasco's view, was merely ejected from the parlor,
not thrown off the farm. But relegating the art to the barnyard
does not pass First Amend ment scrutiny.
[8] We do not endorse Pasco's cramped view of what constitutes censorship,
and we find none of the city's reasons for excluding the art
work compelling. Although children may pass through the hallways of the building,
the city concedes that the works are not obscene, and it is beyond
peradventure that the works have serious artistic value. And
the city offered no evidence to suggest that children would be
harmed by, or even saw, the works. The mere fact that the works caused controversy is, of course,
patently insufficient to justify their suppression. See Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is
a bedrock principle of the First Amendment, it is that the government
may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.")
16 Given the location and small size of the banned works, we
find no merit in the city's theory that children and/or city
employees were a cap- tive audience….
[9] Finally, as we said in Cinevision:
"Although the City was not required to open the [property] and
is not required to leave it open indefinitely, it cannot, absent
a compelling government interest, open the forum to some and
close it to others solely in order to suppress the content of
protected expression. Generally, "[s]elective exclusions from
a public forum may not be based on content alone, and may not
be justified by reference to co tent alone."
As in Cinevision Pasco's standard for disapproval of works in
the exhibition ("controversialness") fails the narrow tailoring
requirement because it "does not adequately limit the discretion
of the [city] in approving or disapproving the proposals."" Id. (citing Board of Educ., Island Trees Union Free Sch. Dist.
No. 26 v. Pico, 457 U.S. 853, 864-65 (1982) (plurality opinion)).
Accordingly, we hold that Hopper and Rupp's First Amend- ment
rights were violated by the exclusion of their works from the
Pasco City Hall Gallery.17 The district court erred in denying
their cross-motion for partial summary judgment.
IV. CONCLUSION
We REVERSE the grant of summary judgment to Pasco, REVERSE the
district court's denial of Hopper and Rupp's cross-motion for
partial summary judgment on the question whether Pasco violated
their First Amendment rights, and REMAND for adjudication of
the municipal liability issue. The district court is further
directed to resume jurisdiction over the breach of contract claim
against the Arts Council.
