Bill Newman: Whose free speech is on display in Black Lives Matter banner on City Hall?



Last modified: Monday, February 08, 2016

Shortly after the Black Lives Matter banner was raised at Northampton City Hall on the Rev. Martin Luther King Jr. Day, the president of a city police union, denying any connection, requested that Mayor David Narkewicz fly a banner recognizing National Peace Officers Memorial Day in May.

Other banner and flag-flying requests no doubt will follow.

We’ve been down this — or a similar — road before. In 2014, in response to a crosswalk painted rainbow colors in celebration of Pride Day, a Northampton resident requested permission to paint another crosswalk red, white and blue.

Veterans groups pushed back against that idea, protesting that they didn’t want pedestrians trampling on the colors of Old Glory, a reaction that caused the proponent to reconsider her proposal.

During that brouhaha, this column applauded the idea of painting crosswalks and suggested that the city adopt constitutionally sufficient, viewpoint-neutral criteria for painting them. Colorful crosswalks, I thought, could engender public debate and add to the city’s artistic, cultural and political vibrancy.

My idea went nowhere.

For starters, the Department of Public Works was having none of it, deciding emphatically that a regulation for painting crosswalks wouldn’t make it onto its agenda for the foreseeable, or even the unforeseeable, future. Since then, that controversy has faded along with the colorful stripes that connect T.D. BankNorth to Ted’s Boot Shop. From a constitutional perspective, the DPW probably can get away with dodging the issue. A municipality that facilitates a one-time expressive event does not inadvertently create a designated public forum.

Let’s clarify. A designated public forum is a place not traditionally used for expressive activities that a government has designated as available for free speech subject to reasonable time, place and manner restrictions. The public comment session at City Council meetings provides a good example. Crosswalks could have been another. Oh well.

A traditional public forum, in contrast, is a place where from time immemorial everyone has the right to speak from a soapbox, carry signs and engage in debate. Sidewalks and public parks are good examples of traditional public forums. There, free speech rights live in all their full and protected glory. The First Amendment says so.

But, contrary to what a reasonable reader might intuit, the Black Lives Matter banner is not safeguarded by the First Amendment at all. The City Hall balcony from which the BLM banner flies probably is not a designated public forum because the city has not made that location generally available to individuals or groups seeking to express themselves.

Assuming the balcony is not a designated public forum, then what kind of speech is that banner?

Most observers would conclude reasonably that a statement emanating from the facade of City Hall should be attributed to the municipality. Indeed, under recent Supreme Court decisions, the BLM banner likely would be considered exactly that, government speech — albeit private speech that has been adopted by the government.

Government speech, the nation’s highest court has ruled, is not guaranteed by the First Amendment. Those decisions make some sense. After all, the First Amendment was designed as protection from the government, not protection for the government. And the government still enjoys the right to speak simply because it is the government. Northampton thus has the right to express itself from its office building, to convey the message that Black Lives Matter.

Before the DPW accepted private money to paint the rainbow crosswalk, it failed to fully consider the First Amendment implications of that decision, which is a shame. The ensuing ruckus effectively killed the idea of painted crosswalks.

A similar issue accompanies the BLM banner. Although most municipal government speech — the city’s website, for example — will spark no controversy, some expression flying from City Hall no doubt could or will.

Clear rules should be written, proposed, debated, adopted and distributed — rules that set forth the criteria Northampton will apply to requests for a City Hall banner. A clear delineation of power also strikes me as important.

Does a mayor alone decide whether to allow a particular message or does the City Council have some say? How long can a banner be on the balcony? And how many messages can exist or co-exist at one time? So many questions, so few answers — so far.

It is profoundly right, I think, for a Black Lives Matter banner to fly above City Hall beginning on the Rev. Martin Luther King Jr. Day and throughout Black History Month. I hope and believe that most residents of Northampton feel proud to see it there.

That said, would we feel the same way if this, or a future, mayor should decide to fly a banner from City Hall displaying a message with which we profoundly disagree?

What would we think then of the mayor’s unfettered government speech?

Bill Newman is a Northampton lawyer, host of a WHMP weekday program and author of “When the War Came Home.” His column appears the first Saturday of the month. He can be reached at opinion@gazettenet.com.


 


Daily Hampshire Gazette Office

115 Conz Street
Northampton, MA 01061
413-584-5000

 

© 2018 Daily Hampshire Gazette