Bill Newman: Paint on, Northampton, and let’s keep debating



Last modified: Saturday, July 05, 2014

NORTHAMPTON — The streets belong to the people. But what about the crosswalks?

This issue has riveted Northampton since the Department of Public Works — at the request of a private citizen, who paid for it — painted the crosswalk on Main Street between Thornes Marketplace and TD Bank in stripes vaguely akin to the rainbow flag to celebrate Pride Day.

A lot of people liked it, but some didn’t. The Northampton Arts Council people, for example, were miffed that no one asked their opinion or permission.

But all in all, life around the crosswalk for some time was copacetic. Cars drove over it, pedestrians walked on it and residents debated the propriety of it — all as we are supposed to do.

And then in June, Katherine Osborne of Washington Place requested red, white and blue stripes in the crosswalk between Pulaski Park and Masonic Street, particularly appropriate for the approach to Memorial Hall. In response, a reader of this newspaper commented that red, white and blue might be too patriotic a statement for some in Northampton. A rebuttal to that response characterized the comment as “snarky.”

Witness the First Amendment at work. So far, so good. Except that DPW Chair Terry Culhane confessed that the rainbow crosswalk approval was ad hoc, and that there really is no process for approving crosswalk expression.

To the city’s credit, Northampton seems open to having its crosswalks available for political statements and, perhaps, art. And legally the city can do this — subject to a few safety rules. The applicable federal, state and city laws, in sum, only require that a downtown crosswalk be at least six feet wide and be demarcated by two solid white reflectorized lines at least six inches wide on either side.

Crosswalks with colors and patterns flout no law. Rainbow stripes are fine. As are red, white and blue ones. By making crosswalks available for art and statements, the city is creating what, in constitutional parlance, is called a limited or designated public forum. In a traditional public forum, such as a street, sidewalk, or park, the government, generally speaking, can only impose reasonable time, place and manner restrictions, but can’t restrict the content of your speech.

A designated public forum is different. Because it’s a place not traditionally used for expressive activities, the government may limit the content of speech. For example, public-comment time at a City Council meeting (a designated public forum) could have a rule that limits speakers to addressing matters that affect the city. Reading from “The Joy of Sex” could be prohibited. Bad example — everyone would want to hear that, but you get the idea.

While the government can impose content-based restrictions in a limited public forum, it may not — this is important — discriminate on the basis of viewpoint. In our public comment example, the government could not prohibit speech critical of officials but allow compliments.

Back to the streets. To preclude viewpoint discrimination, the rules must be both reasonable and the viewpoint neutral. That standard is easy enough to recite but not so easy to apply. Indeed, a plethora of issues must be resolved.

Are drawings allowed or only stripes with colors? For how long does the design remain? Who pays and how much? (Are crosswalks really only available to the rich or groups with sufficient funds to pay the expenses?) Which crosswalks will be available? Is commercial speech permitted? How would the city prevent one group from monopolizing available crosswalks? Will the artist have any control?

If the Arts Council is going to have some say in this, what criteria will it use, and how will it guarantee viewpoint neutrality? And are public officials prepared to take some flak? Remember, as far as flags and colors are concerned, because the city cannot discriminate on the basis of viewpoint, a crosswalk with the colors of the Afghan flag, the Israeli flag, or the PLO all would be permitted.

These considerations could cause the city’s fathers and mothers to throw up their hands and say, forget the whole thing. Perhaps simply put some colored tape down between the white stripes on the day of the event or parade, e.g., St. Patrick’s Day, Veterans Day, Pride March Day — and literally, call it a day.

But I don’t think we as a community should take the easy way out. It’s better, I think, to allow the crosswalks to be used for expression. Yes, we will have debate and disagreements. And it’s fine to have debate and disagreements. Democracy is disputatious. In democratic disagreement there is a certain beauty.

The DPW should have an interesting meeting Aug. 4 when it again takes up this issue. Paint on.

Bill Newman is a Northampton lawyer and host of a WHMP weekday program. His column appears the first Saturday of the month. He can be reached at opinion@gazettenet.com.


 


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