How The First Amendment Can Fight BLM Messages

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How The First Amendment Can Fight BLM Messages, Rosewood City Removes Street Art After Receiving Demand

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Fighing BLM Messages With The First Amendment

WASHINGTON, D.C. (July 22, 2020) -  Many cities have permitted supporters of Black Lives Matter [BLM] and related causes to post messages supporting their views, but those who think there should be some balance may have a new weapon.

Although Rosewood City in California had permitted a group to paint the words "BLACK LIVES MATTER" on a city street, they ordered the words removed just after receiving a request from an attorney to be able to paint the words "MAGA 2020" on the same stretch of street, or nearby.

Although the City provided another explanation for suddenly agreeing to remove the BLM message, and pledged that "no further art installation will be authorized on the City's streets," it's more likely that the City realized that it cannot constitutionally permit one group to post a message, and deny that same privilege to another group with another message, says public interest law professor John Banzhaf, whose similar complaint forced radio and TV stations to balance cigarette commercials with antismoking messages, and led to the ban on cigarette commercials.

The City claimed that it ordered the removal of the BLM words because "staff is concerned about public safety issues that may arise from painting murals on its public streets, which could result in driver confusion and traffic accidents," but the timing makes it more likely that the removal was prompted by a fear of a law suit for violating the First Amendment, says Banzhaf.

Public Forums And The Right To Free Speech

Professor Banzhaf explained that streets, sidewalks, and parks have traditionally been classified as "public forums" (or "open forums") where, under the First Amendment, speech (including signs) cannot be restricted based upon their content or meaning.

So, while the government can impose content-neutral - commonly known as "time, place, and manner" - restrictions on free speech activities in public forums, it cannot constitutionally permit "Black Lives Matter" and prohibit "MAGA 2020," anymore than it could permit the words "Pro Life" and refuse "Pro Choice," or OK "Yes Israel" but nix "OK Palestine" or "No Israel," says Banzhaf. who has testified as a First Amendment expert before a congressional committee.

Thus those who oppose the message or viewpoint convened by "BLM" or simply think there should be some balance to the messages displayed on city property, can fight back by demanding the right, under the First Amendment, to pose a contrasting message, suggests Banzhaf.

In many cases the result may be, as in Redwood City, that the BLM message will be removed or, in some cases, messages expressing a different viewpoint will be posted by other groups or individuals, suggests Banzhaf.