In my last musing, I shared my perspective on the importance of acknowledging the struggles of our minority community members through the creation of a mural that speaks to our lasting commitment toward ending systemic racism and working with residents to create a better tomorrow for all of us. However, as with all things, this issue is not as cut and dry as many would like it to be. Opening a public forum via an art project will, automatically, then open that space up to any subsequent group to also request space for their message to be shared as well. Therefore, this issue must be approached carefully and purposefully to ensure that there are not any unintended negative consequences.
When it comes to public spaces, there are two important guidelines that maintain and protect free speech. The first is what is called a public forum. This is where there exists a space, created by government or not, where anyone can speak their mind and express their freedom of speech in whatever form the space was designed for. For example, if it were a mural, organizations and community groups could petition to have their message, not the message of the government, shared with the community in that space for an appropriate amount of time. Under public forum rules, the first amendment is strictly followed and the controlling government body must allow organizations to share their message openly without infringing on their first amendment rights — meaning that any rules that are created to manage that mural area would have to be content-neutral in nature.
This also means that the government body itself could not control the content of the space. Specifically, in the Supreme Court Case Rosenberg v. Rector (515 U.S. 819, 1995) Justice Kennedy opines “The state thus may not exercise viewpoint discrimination even when the limited public forum is one of its own creation.”
In short, if we create a public forum where community groups can share their message with the community, then we must allow all messages in that same public forum space, including hate speech. This is not something I think we should do, since I do not think Lansdale needs messages of hate printed on our walking paths.
However, there is another way to acknowledge the Black Lives Matter message while limiting the potential for hate speech. That is through government speech as outlined in the Supreme Court case Rust v. Sullivan (500 U.S. 173, 1991). In Sullivan, former Chief Justice Rehnquist set a standard that governments can speak directly to residents without opening a public forum so long as that government owned space has not been used historically to express freedom of speech. This type of space is maintained and managed by the government entity and represents the community and its values as perceived by the governmental body. Justice Kennedy in Rector clarifies this point by stating “[in Sullivan] the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program […] When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.”
Sullivan clearly indicates that if the message is one in which the government is speaking, and not that of a private entity or community group, the message and the space may not be subject to the rules of a public forum or the first amendment standards those spaces must meet.
For this very reason, in my first musing on this subject, I suggested that a private property location might be a better avenue for the mural. That way, Lansdale is not opening a public forum where anyone can put any hate-filled message they want. Additionally, if the organizers of the mural were looking for a way to have a lasting impact on the community, whereby government can speak in support and create a protected space for a message of equality and acknowledgement, that would similarly be a better path forward.
However, that would require working directly with Borough Council – and myself – to craft that message to ensure it meets the desires of the community at large.
As stated at the beginning, this is a nuanced issue with intricacies and complexities riddled throughout it. It is my hope that we, as a community and as a government, can find a way to communicate support for our minority populations and acknowledge the struggles that black lives have experienced throughout our history as a nation. However, we need to walk a fine line so that we do not open ourselves up to creating public forums where hate speech can be thrust upon us and actually detract from the original message trying to be communicated.
(Mayoral Musings is a weekly op-ed column submitted to North Penn Now, courtesy of Lansdale Borough Mayor Garry Herbert.)
See also:
Mayoral Musings: Black Lives Matter And The Liberty Bell Trail
Mayoral Musings: Managing The Financial Emergency
Mayoral Musings: Welcome To Green Phase
Mayoral Musings: Reimagining The Lansdale Borough Police Department
Mayoral Musings: All Lives Can’t Matter Until Black Lives Matter
