Petition for Writ of Certiorari — City of Pasco v. Hopper

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

(\) Supreme Court, U.S.

FILED

01 179 JUN - 72001

No.

OFFICE OF THE CLERK

IN THE

SUPREME COURT

OF THE UNITED STATES

CITY OF PASCO,

Petitioners,

vy.

JANETTE HOPPER and SHARON RUPP,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

John G. Schultz George Fearing

Counsel of Record

Leavy, Schultz, Leavy, Schultz,

Davis & Fearing, P.S. Davis & Fearing, P.S.

2415 West Falls Avenue 2415 West Falls Avenue

Kennewick, WA 99336 Kennewick, WA 99336

(509) 736-1330 (509) 736-1330

re,

AO +

QUESTION PRESENTED

A city manager, on a temporary basis, permits a

local arts organization to display artwork along the city

hall corridor, and in a display case. The manager

removes nude, but not obscene, artwork, which is

displayed during the program. The manager does not

personally object to the artwork. The manager removes

the artwork because of the presence of children in the

corridor, because of employees complaining about the

artwork, because of citizen complaints about the art,

and because the administration is spending valuable

time addressing the controversy.

Does the removal of the artwork, from city hall,

during a temporary arts program, offend the U.S.

Constitution first amendment?

STATEMENT PURSUANT TO RULE 29.6

The caption of the case contains the name of all

parties to the proceeding. The Arts Council of the

Mid-Columbia Region is no longer a party to the

litigation.

lil

TABLE OF CONTENTS

Page

Question Presented .................4 05. i

Statement Pursuant To Rule 29.6 ......... il

Table Of Contents .......0.......000000. ii, iv

pp a ae Se V, Vi

Opinions Below .......... cians sewer |

Statement Of Jurisdiction ................ |

Constitutional Provision Involved......... 2

Statement Of The Case .................. 2

Reasons For Granting The Writ..... ..... 8

I. The Decision Below Conflicts With

Decisions Of The Seventh And First

Circuits, On The Issue Of Whether A

Public Building, Open To Artists,

Becomes A Public Forum........... vy)

Page

II. The Ninth Circuit Has Decided An

Important Question Of Federal Law

That Has Not Been, But Should Be,

Settled By This Court ............. 10

III. The Ninth Circuit Decided An

Important Federal Question In

A Way That Conflicts With Many

Supreme Court Decisions.......... 13

CMI nan ncccctescnesvadweeeraseens 17

Appendix

Ninth Circuit Court Opinion .... ... la

Order Denying Petition For

Rehearing En Banc ............ lb

Eastern District Of Washington

NEE a Scns snaiyeekeeeci soe Ic

TABLE OF AUTHORITIES

Page

Cases:

Board of Education, Island Trees etc. v. Pico,

547 U.S. 853, 871 (1982) (plurality)....... 15

Close v. Lederle,

424 F.2d 988 (1* Cir. 1970)....:.......... 10

Cornelius v. NAACP Legal Defense Fund,

473 UG, TOR; Bee Cee os bios oe ess: 14

FCC v. Pacifica Foundation,

438 U.S. 726, 749-50 (1978). ............. 15

Krishna Society v. Lee,

POO UIs Bi bg CLP CASO E) bs veccsivecciive 14

Lehman v. City of Shaker Heights,

418 U.S. 298, 307 (1974) (plurality)

(Dougias J., comcwrrinig) ...... 20.02.2262. 17

Perry v. Sinderman,

Ge Is as FOIA 6 vc cai beccsnies 15

Page

Perry Education Association v. Perry

Local Educators’ Association, 460

Oe | oo | er or ere 10,

Piarowski v. Illinois Community College,

759 F.2d 625 (7™ Cir. 1985).............. 9

Reno v. American Civil Liberties Union,

LT? SCE TSB, Z41-42 CISGT) occ cctcics 15

United States v. Kokinda,

497 U.S. 720, 736 (1990) (plurality) ..... se ae

PETITION FOR A WRIT OF CERTIORARI

Petitioner, City of Pasco, respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The district court’s opinion, (per Van Sickle,

D.J.) granting petitioner’s summary judgment motion

is unpublished. A copy of the district court’s opinion

is attached as Appendix, pages Ic to 44c. The court

of appeals’ opinion (per McKeown, C.J., joined by

Browning, J. and partially joined and dissented to by

Gould, J.) reversing is published at 241 F.3d 1067. A

copy of the opinion is attached hereto as appendix,

pages la through 100a. The court of appeals’ order

denying rehearing en banc is not published, but

attached hereto in the appendix as page 1b.

STATEMENT OF JURISDICTION

The court of appeals entered its opinion and

order on February 15, 2001, and denied rehearing en

banc on April 4, 2001. Petitioner invokes this Court’s

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

INVOLVED ;

The conduct of the city manager is challenged

on the basis of the United States Constitution First

Amendment. The relevant portion of the amendment

reads:

“Congress shall make no law

abridging the freedom of speech ... .”

STATEMENT OF THE CASE

Petitioner is a Washington city, which

permitted a temporary arts program to be displayed in

the city hall corridors. The city terminated the arts

program, when controversial nude artwork was

displayed. The district court held that the City of

Pasco City Hall was not a public forum. The district

court granted the City of Pasco summary judgment,

ruling that reasonable grounds existed to remove the

nude artwork, and to terminate the arts program. The

Ninth Circuit reversed, holding that city hall was a

public forum, and the city lacked grounds for removal

of the artwork.

The court of appeals’ holding merits this

Court’s review, because the holding raises significant

first amendment issues, which municipal corporations

must frequently address. The Supreme Court has not

directly addressed a case involving controversial

artwork, in a public place of business. Nevertheless,

the decision below conflicts with numerous decisions

of this Court holding that public places of business are

not public forums. The decision below conflicts with

decisions of this Court, and of other circuits, holding

that public buildings must be free from controversial

distractions, the government may protect children

from nudity, and citizens have a right to be free from

the imposition of artwork upon them.

In 1994, Pasco remodeled a former school

building and converted it into a new city hall. In an

effort to decorate the bare walls of the new space,

Gary Crutchfield, the city | manager, and his

administrative assistant, Kurt Luhrs, decided to allow

an experimental program whereby local artists would

be invited to display their work in the newly-

remodeled building.

Because Crutchfield did not want city

employees to devote time and energy administering

this program, Luhrs sought assistance from the Arts

Council of Mid-Columbia Region, a private entity that

promoted the arts. Luhrs’ primary contact at the arts

council was its director, Barbara Gurth. Luhrs and

Gurth agreed that the arts council would locate the

art and administer the program in exchange for a $500

quarterly fee.

During initial discussions, Luhrs made clear to

Gurth that Pasco was concerned about generating

controversy. Luhrs instructed Gurth that, in selecting

art for the program, works of a “questionable nature”

should not be displayed. Consistent with Pasco’s

concerns, Gurth sent a letter to artists who had

expressed interest in the project and warned of the

need to avoid controversial subject matter. In

announcing the program to the arts community, Gurth

suggested that controversy would destroy the project

and that artists submitting work could expect to be

censored if their work was controversial. According

to Kurt Luhrs, Pasco had no expertise in art, and the

arts council would ensure that artists presenting

political or offensive art would not be invited to

participate.

The first exhibit ran from August through

October 1995, and the second ran from November

1995 through January 1996. The art displayed during

these two exhibits generated very little controversy.

Some works depicted nudity, but Gurth describes the

nudity as “abstracted”, and the works caused no

genuine controversy.

Respondents Hopper and Rupp were invited to

participate in the third exhibit, scheduled to run from

February through April 1996. Luhrs testified that

before the third exhibit, Gurth called to tell him she

had not reviewed Hopper’s work because she was out

of town and that Luhrs might want to “check it out”.

The call prompted Luhrs to review Hopper’s pieces

when they arrived, although he had not reviewed any

previous submissions. Hopper submitted prints

showing a naked couple in varied scenes. Crutchfield

and Luhrs refused to hang the prints.

Rupp submitted a sculpture titled alternatively

“To the Democrats, Republicans, and Bi-partisans”,

or “Damn I’m Stuck”, which depicted a woman’s

bare buttocks “mooning” the viewer. Although

Crutchfield and Luhrs initially permitted Rupp’s piece

to be displayed, complaints ultimately prompted

Crutchfield to direct its removal.

Some viewed the sculpture as depicting the

woman in a “sexual position” or as depicting a

“sexual act”; others simply thought it “offensive and

disgusting”, or “derogatory to women”. Citizens

complained of the sculpture and the controversy soon

reached the local newspaper. With the many

complaints, Crutchfield became concerned about the

display being in the view of children, as the children

used the corridor for access to a gymnasium.

The Hopper prints were shown to several city

hall employees in order to get their opinions. Several

female employees found some of the prints

“offensive” and “sexually suggestive”. Neither Luhrs

nor Crutchfield disagreed with any viewpoint

expressed in the artwork of Hopper or Rupp. Neither

gentleman personally objected to the nudity in the art.

The district court noted that courts are reluctant

to find public buildings to be public forums, under

first amendment jurisprudence, when operated in a

proprietary manner. When someone enters city hall

to pay a water bill, or secure a building permit, or the

ail

like, he or she is not interested in discourse. The

district court found that the city did not intentionally

open any art gallery to the public as a place for

expressive activity. Artists’ participation was by

invitation only, and invitation was based on content.

Because city hall was a non-public forum, speech

regulation needed only to satisfy the requirement of

reasonableness. The district court noted that

decisions have held that art, which is merely offensive

and then only to certain groups, may be removed from

a non-public forum for that reason alone. One

decision has even heid that art may be removed from

a non-public forum simply because it is ugly. The

presence of children standing alone is reason enough

to relocate or remove the artwork at issue, based upon

Supreme Court precedent, reasoned the district court.

Citizens and other visitors, who come to city hall,

have the right not to be subjected to “assault upon

individual privacy”. Freedom of speech must

recognize, at least within limits, freedom not to listen.

The Ninth Circuit reasoned that a municipality

intentionally opens an office building as a public

forum, when the government inconsistently enforces

restrictions on use of the forum. The Ninth Circuit,

essentially making findings of fact, determined the

city had not, before the exclusion of Hopper’s and

Rupp’s works, excluded any controversial artwork

The district court noted that any purported earlier

controversial artwork, either was not controversial, or

did not rise to the level of controversy, to which the

Hopper and Rupp work rose. Since the city opened

a public forum, the Ninth Circuit-noted that removal

of the artwork must be justified by a compelling state

interest. None of the city’s reasons for excluding the

artwork were compelling. Circuit judge Gould

concurred in part, and dissented in part, writing that

factual issues of Pasco’s intent remained. Judge

Gould dissented because the majority’s ruling is

unfair to and unworkable for cities within the Ninth

Circuit and likely will discourage cities from

experimenting with public art displays. Ultimately,

the Ninth Circuit ruling will be more harmful for

artists than permitting Pasco to have its day in court.

This petition for a writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

The petition should be granted for three

reasons. First, the Ninth Circuit’s judgment directly

conflicts with decisions of the Seventh Circuit and the

First Circuit. Second, the Ninth Circuit decided an

important question, concerning artwork in municipal

buildings, which has not been directly settled by the

Supreme Court. Third, the Ninth Circuit decided an |

important federal question in a way which conflicts

with numerous Supreme Court decisions and

principles.

I. The Decision Below Conflicts With

Decisions Of The Seventh And First Circuits, On

The Issue Of Whether A Public Building, Open To

Artists, Becomes A Public Forum.

Under a factual setting more favorable to the

artist, the Seventh Circuit, per J. Posner, ruled that the

opening of an art gallery, in a state school, to faculty,

students, and outside artists, did not turn the gallery

into a public forum, for purposes of first amendment

law. Piarowski v. Illinois Community College, 759

F.2d 625 (7" Cir. 1985). The college had no criteria

for picking works to be exhibited in the gallery. The

artwork was closer to the line of obscenity, although

the work had artistic merit. Stained glass windows,

contributed by Piarowski, provoked complaints from

students, cleaning women, and black clergymen.

When Piarowski refused to remove the windows, the

administration removed them.

The Seventh Circuit analyzed the case under

the public forum test announced by this Court in

Perry Education Association v. Perry Local

Educators’ Association, 460 U.S. 37 (1983).

Invitations to outsiders and the lack of set criteria

were insufficient. Occasional use by outsiders was

not enough to make a college art gallery a public

forum.

In Close v. Lederle, 424 F.2d 988 (1* Cir.

1970), an art instructor at a state university, after

being invited to exhibit his paintings in a busy

corridor, was made to remove them. The paintings

were sexually explicit. Children used the corridor.

The First Circuit found no violation of the first

amendment.

II. The Ninth Circuit Has Decided An

Important Question Of Federal Law That Has Not

Been, But Should Be, Settled By This Court.

Pasco cannot, by the record, show that may

other municipalities wish to show art in their public

buildings. Evidence of activities of other entities

would be irrelevant, to the case at the trial level. FRE

401 and 402. Pasco and its attorneys, can inform this

Court that they have been contacted by many local

governments, after the publication of the circuit

court’s opinion. Municipalities express concern about

the court’s ruling. As noted by the dissent below, the

Ninth Circuit’s ruling will likely discourage cities

from experimenting with public art displays, which

ultimately will be more harmful for artists than a loss

in this case.

The majority below recognizes that the result

is, in certain ways, “an unfortunate one”. The

majority suggests the unfortunate result can be ~

prevented by administering a public art display in “a

consistent and clearly articulated manner”.

Pasco does not believe a consistent and clearly-

articulated program is possible. Art does not lend

itself to the articulation of clear and/or consistent

standards. Each individual is different, and sees and

feels art in different ways. Art stirs the emotions,

rather than pricks the intellect. Art is not an objective

picture, which can be measured by standards, but the

creation of a feeling in stone or on canvas. Pablo

Picasso once stated that art cannot be explained

mathematically or scientifically.

Municipal planners and managers, especially in

small cities like Pasco, do not have the time,

resources, desire, inclination, or capability to

formulate and implement a consistent and clearly-

articulated arts program. Any distinctions drawn, in

an arts program, would be subjective and would

subject the municipal manager to ridicule by the arts

intelligentsia. Any delineated standards, in an arts

program, would create argument, and additional

litigation, over where lines are drawn.

Arts are important in the life of the community.

The showing of artwork ina public building should be

encouraged. The Ninth Circuit ruling discourages art

programs.

Artwork is not as important as sheltering the

thousands, or as pressing as feeding the millions.

Artwork may not be as important as saving the

country from nuclear destruction. Nevertheless, the

arts are implicit in the nature of humanity. The Ninth

Circuit decision conflicts with many principles

announced by the Supreme Court. Nevertheless, this

Court has not directly addressed whether opening a

city hall, or any other public building, for an arts

program, creates a public forum, for which decisions

concerning the display are subject to strict scrutiny.

Ill. The Ninth Circuit Decided An

Important Federal Question In A Way That

Conflicts With Many Supreme Court Decisions.

The crux of this case involves the application of

“public forum analysis” to an arts showing in a city

hall. This Court crystallized the “public forum

analysis” in Perry Education Association v. Perry

Local Educators’ Association, 460 U.S. 37 (1983).

The Perry Education Association Court determined

that decisions, excluding expressive activity from

public property open for use by the public as a place

for expressive activity, constitutes a public forum, and

is subject to strict scrutiny. On public property, not

categorized as a public forum, decisions excluding

expressive activity need only be reasonable.

The Ninth Circuit decision is contrary to this

Court’s principles, under which a public building,

operated in a proprietary manner, is usually not

considered a public forum. Krishna Society v. Lee,

505 U.S. 672, 678 (1992); United States v. Kokinda,

497 U.S. 720, 736 (1990) (plurality).

The Ninth Circuit’s decision conflicts with this

Court’s analysis, under which government intent is

critical, and a publicly-owned building does not

become a public forum by accident. The government

does not create a public forum by inaction or by

permitting limited discourse, but only by intentionally

opening a non-traditional forum for public discourse.

United States v. Kokinda, 497 U.S. 720 (1990);

Cornelius v. NAACP Legal Defense Fund, 473 U.S.

788, 802 (1985). The Ninth Circuit ruling below

stands for the proposition that a public forum is

created by haphazard exclusion of expressive activity.

Haphazard conduct is not intentional conduct.

Negligence or gross negligence does not constitute

intent.

The Ninth Circuit’s ruling conflicts with

Supreme Court precedent concerning how to

determine the intention of a municipality. This Court

has identified three primary factors to consider in

determining whether the government intended to

create a designated public forum: (1) what the

government said; (2) what the government did; and

(3) the compatibility of the space with the expression.

Perry Education Association v. Perry Local

Educators’ Association, 460 U.S. 37, 47 (1983). The

majority below did not consider each of these factors

in light of the correct summary judgment standard.

The intent of a governmental unit is generally a

factual question, where summary judgment is

improper. Perry v. Sinderman, 408 U.S. 593, 598

(1972).

The Ninth Circuit decision ignores this Court’s

teaching that a child’s accessability to a forum is

relevant. The Ninth Circuit gave no importance to the

fact that children would pass, in the corridors, the

nude artwork of Hopper and Rupp. The presence of

children standing alone is reason enough to relocate

or remove artwork. Reno v. American Civil Liberties

Union, 117 S.Ct. 2329, 2341-42 (1997); Board of

Education, Island Trees etc. v. Pico, 547 U.S. 853,

871 (1982) (plurality); FCC v. Pacifica Foundation,

438 U.S. 726, 749-50 (1978).

City manager Gary Crutchfield removed the

artwork, since public employees and citizens

conducting business in city hall, a captive audience,

strenuously objected to the works. Justice William O.

Douglas wrote:

In asking us to force the system to

accept his message as a vindication of

his constitutional rights, the petitioner

overlooks the constitutional rights of the

commuters. While petitioner clearly has

a right to express his views to those who

wish to listen, he has no right to force

his message upon an audience incapable

of declining to receive it. In my view,

the right of the commuters to be free

from forced intrusions on their privacy

precludes the city from transforming its

vehicles of public transportation into

forums for the dissemination of ideas

upon this captive audience.

Lehman v. City of Shaker Heights, 418 U.S. 298, 307

(1974) (plurality) (Douglas J., concurring) (citation

omitted).

CONCLUSION |

For the foregoing reasons, Pasco’s petition for

a writ of certiorari should be granted.

Respectfully submitted,

JOHN G. SCHULTZ GEORGE FEARING

Counsel of Record

Leavy, Schultz, Leavy, Schultz,

Davis & Fearing, P.S. Davis & Fearing, P.S.

2415 West Falls Avenue 2415 West Falls Avenue

Kennewick, WA 99336 Kennewick, WA 99336

(509) 736-1330 (509) 736-1330

Attorneys for Petitioners

May 31, 2001

APPENDIX

Pa SAA EA AEE ATEN ne AI ong

IBY Ce MA MS TIN APT LE TERIOR TINGE TI BORNE RRR LE RRL

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 98-35795

CT/AG#: CV-97-00137-FLV

JANETTE HOPPER; SHARON RUPP

Plaintiffs - Appellants

CITY OF PASCO

Defendant - Appellee

APPEAL FROM the United States District Court

for the Eastern District of Washington (Spokane).

THIS CAUSE came on to be heard on the

Transcript of the Record from the United States

District Court for the Eastern District of Washington

(Spokane) and was duly submitted.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court, that the

judgment of the said District Court in this cause be,

and hereby is REVERSED AND REMANDED.

Filed and entered - 2/15/01.

Se een ey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS |

FOR THE NINTH CIRCUIT

No. 98-35795

D.C. No. CV-97-137-FVS

Do tee eae pee a ee cold se

JANETTE HOPPER, and SHARON Rupp,

Plaintiffs-Appellants,

CITY OF PASCO, and ARTS COUNCIL

OF THE MID-COLUMBIA REGION,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Fred Van Sickle, District Judge, Presiding

Argued and Submitted

March 9, 2000~Seattle, Washington

Filed February 15, 2001

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

SUMMARY

Individual Rights/Freedom of Speech

The court of appeals reversed judgments of the

district court: Thé Court held that a City violates an

artist's First Amendment rights when it creates a

designated public forum and then excludes the artist's

artwork without a compelling governmental interest.

In 1994, Gary Crutchfield, the City Manager of the

City of Pasco, Washington invited local artists to

display their art in the hallways of Pasco's City Hall.

Crutchfield and his administrative assistant, Kurt

Luhrs commissioned the Arts Council, a private

organization to manage the program.

Crutchfield and Luhrs sought to avoid controversy

in the program. In a letter to the Council, Luhrs

reiterated that he did not want the City Hall Gallery

used to display "offensive or politically motivated art"

as the controversy might jeopardize the program. The

Council's initial notice to announce the arts program

and invite submissions reflected Luhr's concerns,

stating that submitted art would be screened for

content, that the subject matter must be acceptable to

a public arts program, and reiterating Luhr's concerns

for avoiding public controversy.

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. The Council rejected no

artwork during the entire length of the program, which

included three separate exhibits. 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 Council

agreeing to leave the works up for the length of the

exhibit and to give the Council a commission on any

pieces sold.

The first two exhibits were not without controversy.

One particular sculpture, referred to as "Starving

Man," received a number of complaints but was not

removed. The first two exhibits also included works

containing nudity; there were no complaints and no

efforts to exclude the works from the exhibition.

Appellants Janette Hopper and Sharon Rupp were

independently solicited by the Council to display their

art in the third exhibit at the City Hall Gallery. Neither

received the initial notice announcing the program.

They each signed the agreement with the Council.

Rupp agreed to show three pieces, including one

sculpture depicting a nude, headless woman, lying

against a flat surface, her naked backside facing the

viewer. All three works were displayed for a week.

Luhrs received complaints about the sculpture soon

after it was displayed and ordered the Council to

remove all three pieces.

Hopper had agreed to show a series of prints

depicting a naked couple in a variety of landscapes.

Luhrs examined the prints before they were displayed

and determined that some of them were potentially

controversial or political. He decided not to display

them. Luhrs had not reviewed all of the works

previously displayed in the gallery. Shortly after the

works were excluded, Crutchfield terminated the arts

program.

Hopper and Rupp filed an action in federal court,

alleging that the City of Pasco had violated their First

Amendment rights. The district court granted

summary judgment for the City and denied Hopper

and Rupp's motion for partial summary judgment,

holding that Pasco City Hall was a non-public forum,

and that Pasco's decision to exclude their art works

was reasonable.

Hopper and Rupp appealed.

[1] The extent to which the Government may limit

access for speech on government property depends on

whether the forum is public or nonpublic. 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. If the forum is non-public, the

government may 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.

[2] A designated public forum exists where the

government intentionally opens up a nontraditional

forum for public discourse. Restrictions on expressive

activity in designated public fora are subject to strict

scrutiny.

[3] If a forum is a limited public forum, the

reasonableness test is applied.

[4] Government intent is the essential question in

determining whether a designated public forum has

been established. The United States Supreme Court

has looked to the policy and practice of the

government to ascertain whether it intended to

designate a place not traditionally open to assembly

and debate as a public forum. The Court has also

examined the nature of the property and its

compatibility with expressive activity to discern the

government's intent.

[5] Abstract policy statements purporting to restrict

access to a forum are not enough. What matters is

whether the government consistently enforces the

restrictions on use of the forum that it adopted. :

[6] A policy purporting to keep a forum closed is

no policy at all for purposes of public forum analysis

= )

if, in practice, it is not enforced or if exceptions are

haphazardly permitted.

[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. Prior to the exclusion of Hopper's

and Rupp's works, the City neither pre-screened

submitted works, nor exercised its asserted right to

exclude works. Controversial artwork was exhibited

despite complaints. The City retained no substantive

control over the content of the arts program. The

Council also undertook no screening and affirmatively

solicited the purportedly controversial works of

Hopper and Rupp. The City opened its halls to

expressive activity and thereby created a designated

public forum in the art gallery. Because the City's

decision to exclude the works by Hooper and Rupp

was unjustified by any compelling state interest, the

district court erred in granting summary judgment to

Pasco.

[8] None of the City's reasons for excluding the

artwork were compelling. The mere fact that the

works caused controversy was patently insufficient to

10a

justify their suppression. The city conceded that the

works were not obscene, and the works had serious

artistic value.

[9] Pasco's "controversialness" standard for

disapproval of works in the exhibition failed the

narrow tailoring requirement because it did not

adequately limit the discretion of the City in

approving or disapproving the proposals. Hopper and

Rupp's First Amendment rights were violated by the

exclusion of their works from the Pasco City Hall

Gallery. The district court erred in denying their

motion for partial summary judgment.

[10] The City could only be held liable ifthe acts in

question were undertaken pursuant to official policy

or custom.

[11] A municipality may not be held liable on a

respondeat superior theory for the unconstitutional

acts of its employees.

[12] Because the art program was not the product

of any formal policy or longstanding practice, Hopper

and Rupp had to show either that Crutchfield was a

final policymaker with respect to the arts program or

that the City ratified his decision to exclude the

lla

works. Remand was required as to this issue.

Judge Gould concurred in part and dissented in

part, writing he dissented because factual issues of

Pasco's intent remained, the Supreme Court precedent

dictated a different rule regarding the creation of a

designated public forum in light of the summary

judgment standard, and the court of appeals should

wait for development of a full factual record before

creating a new rule

COUNSEL

Paul J. Lawrence, Preston, Gates & Ellis, Seattle,

Washington, for the plaintiffs-appellants. George

Fearing, Leavy, Schultz, Davis & Fearing,

Kennewick, Washington, for defendant-appellee City

of Pasco.

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 Gallery in Pasco, Washington,

because city officials deemed their art too

"controversial." As the district court put it: "The gist

a sienna

12a

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.

§ 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 judgment, holding that the city hall is

a non-public forum and that Pasco's decision to

exclude their works was reasonable. !

'The artists also pled a cause of action for breach of contract

against the Arts Council of the Mid-Columbia Region ("Arts

Council"), the local artists’ association hired t~ coordinate the

display of works at Pasco City Hall. After granting Pasco's motion

for summary judgment on the federal claim, the district court

declined to exercise supplemental jurisdiction over the breach of

contract claim.

13a

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 artwork,

provide hanging supplies, design and mount the

exhibit, publish and mail a flyer to announce the

14a

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. The City Manager and I are

very excited about this program and feel that

it will certainly benefit Pasco residents as

well as regional artists.

*The initial funds came from Crutchfield's discretionary

account for the maintenance of city hall.

l5a

In order to develop a broad base of support,

we felt it would be advantageous to present a

"demonstration project" for the council and

citizens to appreciate. This would be the most

effective way to garner the support needed

for an annual or long term commitment, prior ~

to bringing the issue into the public forum at

a council meeting. The logic being that if you

can see what we are talking about, you can

appreciate the value of it to the community as

a whole.

During our conversation | got the impression

that your board felt that our approach may not

be a commitment to the long term

management of such a project. This is far

from the case. Both Gary and I feel that this

approach will ensure support when we bring

this item to council in a public meeting.

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

l6a

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.

Nevertheless, without a demonstration, I feel

that the ungrounded fears of a few citizens

would ruin this great opportunity for

introducing the arts to our citizens.

In conclusion, please assure your board that

the City of Pasco is very interested in a long

term relationship. We are willing to pay for

the reasonable costs to plan and develop this

show on its own, should the cost exceed the

average $500 per quarter.

(Emphasis added).

Likewise, in an initial notice to announce the arts

program and to invite submissions, Gurth repeated

Luhrs' admonition:

17a

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, 1.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."

Indeed, the Arts Council will not. We have

worked for five years to bring the cities on

board for the arts, we will not jeopardize our

progress. Additionally, I do not think that

regional art in this area presents a problem in

18a

this regard, but the 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.

According to Gurth's deposition testimony:

Gurth: We didn't select the artists. We did not

pass any qualitative judgment on

anybody, or the work, either. We just

simply said: These are the people who

have agreed to hang this month and we

can take this many. So it wasn't a

selection process. It wasn't a jurying

process at all.

19a

Q: How did you decide who would be, for

lack of a better word, chosen, as

opposed to selected like a jury process?

Gurth: They chose themselves. This is a small

area and there aren't that many

practicing artists that work. So the

question with this project from its

inception was always how long will we

sustain it... . So it was never a

question of selecting anybody. It was —

just simply these people coming forward

and saying we would like to hang this

month and we took them. .

Q: Did Mr. Luhrs give you a definition or

an understanding at this particular point

of what he considered to be

objectionable art?

Gurth: No, we never discussed that.

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 agreeing to leave the works up for the

20a

full three months of the exhibit and to give the Arts

Council a twenty percent commission on any pieces

purchased.

Although it is undisputed that no one pre-screened

or otherwise rejected art prior to the exclusion of the

works by Hopper 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. But Crutchfield assumed the Arts

Council would screen for content, and Luhrs testified

that he expected and trusted Gurth to make sure that

no “offensive or politically-motivated art" would be

shown because "she knew the artists in the region and

she knew who to invite and who not to invite."

The first two exhibits (by artists other than Hopper

and Rupp) were well received, but not without

controversy. One piece, a large sculpture referred to

alternately as "After the Famine" and "Starving Man,"

received a number of complaints but was not

removed. The sculpture depicted an emaciated, "dark

complected" man and was placed in front of the

Housing and Support Services Office. One of the

2la

employees who worked in that office complained that

a starving man “didn't send a good message," and

wanted it removed. Others thought it was ugly, and in

a newspaper article Luhrs stated that "Some people

saw racial issues, some saw gender issues, some just

didn't think it was art." Although Luhrs brought the

complaints to Crutchfield’s attention, the piece

remained for the full length of the exhibit. The first

two exhibits also included works containing nudity,

although there were apparently no complaints and

certainly no efforts to exclude the works from the

exhibition.

Unlike most of the artists who provided works for

the Pasco City Hall Gallery, neither Hopper nor Rupp

received the initial notice sent by Gurth. Rather, both

were independently solicited by the Arts Council to

display their art in the third exhibit, which ran from

February to April 1996. Each signed the standard

contract with the Arts Council.

Rupp agreed to show three small bronze sculptures.

The first, entitled "Working it Out," depicts a woman

struggling with a large box on her head. The second

sculpture, entitled "Orchid" or "Retaliation," is a floral

22a

piece. Her third sculpture, which was the source of

the controversy, is entitled "To the Democrats,

Republicans and Bipartisans," "Damn, I'm Stuck," or

"A Woman Drinking from A Brook." It depicts a

large, nude, headless woman, either lying or standing

against a flat surface.’ Her naked back side faces the

viewer. All three works were displayed in a glass case

on the main floor of City Hall for a single week in

February 1996.

Hopper also signed a contract for the third exhibit,

agreeing to show a series of ten linoleum prints

entitled "Adam and Eve." The prints depicted a naked

couple (in silhouette and outline form) in a variety of

landscapes and scenes from post-World War II

Germany. Although none of the prints depict explicit

sexual activity, in two the couple is kissing, and in

several they are embracing. At the time she was

contacted about displaying her work, Hopper

>It is unclear from the record whether the statue was displayed

horizontally, in which case the woman would appear to be lying

down, or vertically, in which case she would seem to be standing.

23a

informed a representative of the Arts Council that her

work contained nudity. The representative assured her

that nudity would not be a problem, however, given

that previous exhibitions at the gallery contained

nudity. Two of the rejected pieces were also on

display at the Portland Art Museum.

Both artists’ works caused controversy. Luhrs

received complaints about "To the Democrats,

Republicans and Bipartisans" soon after the display

went up. Some viewed the sculpture as depicting the

woman in a sexual position" or as depicting a "sexual

act:" others simply thought it "offensive and

disgusting," or "derogatory to women." After

discussing the matter with Crutchfield, Luhrs ordered

the Arts Council to remove all three sculptures from

the display case. In a letter sent shortly after the

incident, Luhrs told Rupp:

The city's art gallery project is a voluntary

effort on the part of the City of Pasco to

provide a venue for artists to display their

work. Our city administration firmly believes

that this program is a great service to our

24a

community and to the arts community in

general. Nevertheless, we are somewhat

limited in the subject matter which we can

display. We firmly believe that this program

should remain out of the political realm.

Displaying art which could be misconstrued

by activists as "sexual" or "prurient," will

make the decision whether to maintain the

program a political one, thereby endangering

the entire program. For this reason we must

be sensitive to art work presented for the

entire program. This process should have

occurred prior to your committing your art to

the display.

(emphasis in original).

Hopper's prints were never even displayed. After

Hopper delivered her prints, but prior to their hanging,

Luhrs examined them and determined that some were

potentially controversial or political because the

couple was depicted nude in public, and public nudity

is illegal in Pasco. Over the next few days he showed

25a

the prints to several City Hall employees in order to

get their opinions. The employees found some of the

prints "offensive" and "sexually suggestive." In view

of these assessments, Luhrs and Crutchfield decided

not to display any of the prints, and Hopper received

the same letter Luhrs had sent to Rupp.‘

Luhrs acknowledged that the prior exhibits included

works containing nudity. When asked to explain the

apparent inconsistency in displaying those works in

the Gallery but barring Rupp and Hopper's works,

Luhrs shrugged it off, saying that he did not review all

of the previous works.

Shortly after the works were excluded from the

Gallery, Crutchfield terminated the arts program

altogether, and Hopper and Rupp filed this action. On

cross-motions for summary judgment, the district

41nameeting with Hopper and Rupp in which they asked the city to

reconsider its decision, Luhrs offered to display Hopper's prints on

the second floor of the building in a hallway "where there's very little

traffic ... not... a lot of public traffic." Hopper rejected the offer.

SN EN SS EEE Ge MATIN

26a

court held that Pasco City Hall is a nonpublic forum,

and that Hopper and Rupp produced no evidence 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 indiscriminately to public

expression. Thus, although the court agreed that

"[when 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).

II. STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo.

See Robi V. Reed, 173 F.3d 736, 739 (9th Cir. 1999),

cert. denied, 528 U.S. 952 (1999). Our review is

governed by the same standard applied by the trial

court under Federal Rule of Civil Procedure 56(c).

27a

Viewing the evidence in the light most favorable_to

the nonmoving party, we must determine whether

there are any genuine issues of material fact and

whether the district court correctly applied the

relevant substantive law. See id.

Il. ANALYSIS

A. First Amendment Violation

l. 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." Jd. at 800.

If, on the other hand, the forum is non-public, the

government is free to restrict access "as long as the

atten eee een

28a

restrictions are 'reasonable and [are] not an effort to

suppress expression merely because public officials

oppose the speaker's view.' Jd. (quoting Perry Educ.

Ass 'n V. Perry Local Educators' Ass 'n, 460 U.S. 37,

46 (1983)).

[2] Thus, the two main categories of fora are public

(where strict scrutiny applies) and non-public (where

a more lenient "reasonableness" standard governs).

This does not, however, exhaust the universe of

categories. Rather, "Forum analysis divides

government property into three categories: public

fora, designated public fora, and nonpublic fora."°

‘The "public fora" to which the Ninth Circuit refers here are

"traditional public fora," which the Supreme Court has described as

"those places which ‘by long tradition or by government fiat have |

been devoted to assembly and debate." Cornelius, 473 U.S. at 802

(quoting Perry, 460 U.S. at 45). This category includes public

streets and parks. See id. This case does not involve such a

traditional public forum.

29a

DiLoreto V. Downey Unified Sch. Dist. Bd. of Educ.,

196 F.3d 958, 964 (9th Cir. 1999), cert. denied, 120

S.Ct. 1674 (2000) (quoting Children of the Rosary V.

City of Phoenix, 154 F.3d 972, 976 (9th Cir. 1998)).

A designated public forum exists where "the

government intentionally opens up a nontraditional

forum for public discourse." /d. "Restrictions on

expressive activity in designated public fora are

subject to the same limitations that govern a

traditional public forum," i.e., strict scrutiny. /d. at

964-965 (citing International Soc 'y for Krishna

Consciousness 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

30a

are not the same, at least not in this circuit.° Rather,

a limited public 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." Jd. at

965.’ “In a limited public forum, restrictions that are

*See, e.g., Sheri M. Danz, Note, A Nonpublic Forum or A Brutal

Bureaucracy? Advocates’ Claims of Access to Welfare Center

Waiting Rooms, 75 N.Y.U. L. Rev. 1004, 1031 n.151 (2000)

("While the [Supreme] Court seems to use the terms ‘designated

public forum' and ‘limited public forum' interchangeably, lower

courts and commentators distinguish these concepts.").

’See also New York Magazine V. Metro. Transp. Auth., 136 F.3d

123, 128 n.2 (2d Cir. 1998) ("The Second Circuit has referred to

the ‘limited public forum' as a sub-category of the designated public

forum, where the government ‘opens a non-public forum but limits

the expressive activity to certain kinds of speakers or to the

discussion of certain subjects.’ Exclusions of speech under this

category are treated the same as exclusions under non-public fora:

3la

viewpoint neutral and reasonable in light of the

purpose served by the forum are permissible." Jd.

(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. Ifa 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.

'[They] need only be reasonable and view point neutral to pass

constitutional muster.' " (citations omitted)).

32a

("[F]irst we must determine whether the fence was a

designated public forum subject to a reasonableness

standard.").®

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 designated public forum, we must

decide whether the city's decision 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.

‘This categorization admittedly leads to the strange semantic

result that a limited public forum is not actually a public forum.

Therefore, in our analysis here, when we refer to a "public forum"

(where strict scrutiny applies), we are referring to a designated

public forum (where strict scrutiny applies), but ot to a limited

public forum (where the reasonableness test applies).

33a

[4] As the Supreme Court observed in Cornelius,

government intent is the essential question in

determining whether a designated public forum has

been established:

The government does not create a public

forum by inaction or by permitting limited

discourse, but only by intentionally opening

a nontraditional public forum for public

discourse. Accordingly, the Court has looked

to the policy and practice of the government

to ascertain whether it intended to designate

a place not traditionally open to assembly

and debate as a public forum. The Court has

also examined the nature of the property and

its compatibility with expressive activity to

discern the government's intent.

473 U.S. at 802 (emphasis added) (citing Perry, 460

U.S. at 46).

[5] The "policy" and "practice" inquiries are

intimately linked in the sense that an abstract policy

34a

statement purporting to restrict access to a forum is

not enough. What matters is what the government

actually does - specifically, whether it consistently

enforces the restrictions on use of the forum that it

adopted. Thus in Cornelius, where the Court held

that a federal fundraising drive was not a designated

public forum, the Court emphasized both the

existence of a policy and its consistent application:

The Government's consistent policy has been

to limit participation in the [fundraising

drive] to "appropriate" voluntary agencies

and to require agencies seeking admission to

obtain permission from federal and local

Campaign officials. Although the record

does not show how many organizations have

been denied permission throughout the 24-

year history of the [fundraising drive], there

is no evidence suggesting that the granting

of the requisite permission is merely

ministerial. The Civil Service Commission

35a

developed extensive admission criteria to

limit access to the Campaign to those

_ organizations considered appropriate. Such

selective access, unsupported by evidence of

a purposeful designation for public use, does

not create a public forum.

473 U.S. at 804-05 (citations omitted); see also

Perry, 460 U.S. at 47 (no designated public forum in

a public school's internal mail system where the

regular practice was to require permission from the

individual school principal before access to the

system was granted, and where permission had not

been granted "as a matter of course to all who

[sought] to distribute material"); Lehman V. City of

Shaker Heights, 418 U.S. 298, 302-304 (1974) (no

designated public forum in advertising space on city

buses where a city management contract required

control over subject matter of displays, and such

control was consistently exercised for more than

twenty-five years); Children of the Rosary V. City of

Phoenix, 154 F.3d 972, 976 (9th Cir. 1998) ("[A]

36a

review of the city's standards and practices indicates

that the city has not opened a public forum [for ads

on its bus panels]. The city has consistently restricted

political and religious advertising"; upholding the

exclusion of a religious anti-abortion ad), cert.

denied, 526 U.S. 1131 (1999).°

*Conversely, an explicit policy opening a forum suited to

expressive activity is often taken at face value. See Widmar V.

Vincent, 454 U.S. 263, 267 (1981) (clear intent to create public

forum where state university had an explicit policy of making

meeting facilities available to registered student groups); Madison

Joint School Dist. No.8 V. Wisconsin Empl. Relations Comm'n, 429

U.S. 167, 174 n.6 (1976) (state statute providing for open school

board meetings creates forum for citizen participation);

Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546, 555

(1975) (city-leased theater designed and dedicated to expressive

activity is a public forum).

37a

[6] Thus, consistency 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 (Ist Cir. 1991) (in public

forum analysis, "actual practice speaks louder than

words").

Christ's Bride Ministries, Inc. V. SEPTA, 148

F.3d 242 (3d Cir. 1998), cert. denied, 525 U.S. 1068

(1999), is especially instructive in this regard. There,

the Third Circuit considered a regional transit

authority's decision to remove a poster ad stating that

“Women Who Choose Abortion Suffer More &

Deadlier Breast Cancer." /d.,148 F.3d at 244. The ad

was removed when the transit authority received a

letter in which the Assistant Secretary of Health in

the United States Department of Health and Human

38a

Services stated that the ad was misleading and did

not accurately reflect the weight of scientific

evidence. See id. at 245. The contract for the ad

provided that the transit authority reserved the nght

to remove any ads it deemed "objectionable." /d. at

250-51. The court nevertheless rejected the transit

authority's argument that, "because it retained the

sole discretion to reject or to remove any

advertisement that it deems objectionable, it did not

create a public forum of any sort" in transit system

advertising space. /d. at 251.

The court reached this conclusion after a careful

review of the transit authority's past practice with

respect to advertising, noting that it had accepted "a

broad range of advertisements for display," ranging

from religious and political messages to explicit ads

regarding safe sex, abstinence, and AIDS. Jd. The

transit authority had even allowed two ads favoring

abortion rights. /d.at 251-52. On only three prior

occasions had the transit authority requested

advertisers to modify their ads. /d. at 252. At least in

39a

part because of the transit authority's "practice of

permitting virtually unlimited access to the forum,"

the court held that the ad space qualified as a

designated public forum. /d. Indeed, the court held

that the transit authority's long practice of allowing

ads on controversial subjects "as a'matter of course,"

id. at 254, trumped the general rule that no public

forum is created when the government requires

speakers to obtain permission before engaging in

expressive activity in the forum. /d. at 252-55.

The Christ's Bride court followed a Seventh

Circuit decision reaching a similar conclusion with

respect to advertising space managed by Chicago's

transit authority. In Planned Parenthood Ass 'n V.

Chicago Transit Auth., 767 F.2d 1225 (7th Cir.

1985), the transit authority refused to lease ad space

to Planned Parenthood for abortion-related displays.

Other than a "general contractual directive . . to

refuse vulgar, immoral, or disreputable advertising,"

the court found that the transit authority maintained

no policy or system of control over the ads it

40a

accepted and that it "ha[d] allowed its advertising

space to be used for a wide variety of commercial,

public-service, public-issue, and political ads." 767

F.2d at 1232-33. Under these circumstances, the

court held that the advertising space was a designated

public forum. Other courts have held likewise. See,

e.g., United Food & Commercial Workers Union

Local JO99 V. Southwest Ohio Reg'! Transit Auth.,

163 F.3d 341, 353 (6th Cir. 1998) (following Christ's

Bride and noting that "[Wle... must closely examine

whether in practice [the transit authority] has

consistently enforced its written policy in order to

satisfy ourselves that [its] stated policy represents its

actual policy"); Air Line Pilots Ass'n Int'l V. Dept. of

Aviation, 45 F.3d 1144, 1153 (7th Cir. 1995) ("The

government may not 'create' a policy to implement its

newly-discovered desire to suppress a particular

message. Neither may the government invoke an

otherwise unenforced policy to justify that

suppression. Therefore, the government's stated

policy, without more, is not dispositive with respect

4la

to the government's intent in a given forum.")

(emphasis added) (citations omitted).

Courts have also been reluctant to accept policies

based on subjective or overly general criteria.

'{S ]tandards for inclusion and exclusion’ ina limited

public forum 'must be unambiguous 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. See Board of Educ. v. Mergens, 496 U.S.

226, 244-45 (1990) (generalized definition of

permissible content poses risk of arbitrary

application); Putnam Pit, Inc. v. City of Cookeville,

221 F. 3d 834, 845-46 (6th Cir. 2000) ("broad

discretion [given] to city officials [raises] possibility

of discriminatory application of the policy based on

viewpoint"); Cinevision Corp. v. City of Burbank,

745 F.2d at 560 (9th Cir. 1984) (vague standard has

42a

"potential for abuse"); Gregoire, 907 F.2d at 1374-75

("virtually unlimited discretion" granted to city

officials raises danger of arbitrary application); see

also City of Lakewood v. Plain Dealer Publ. Co., 486

U.S. 750, 758-59 (1988) (absence of express

standards in licensing context raises dual threat of

biased administration of policy and self-censorship

by licensees). Therefore, "the more subjective the

standard used, the more likely that the category will

not meet the requirements of the first amendment."

Cinevision, 745 F.2d at 575; see also Christ's Bride,

148 F.3d at 251 (suppression of speech under

defective standard requires closer scrutiny).

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. See Arkansas Educ.

Television Comm'n v. Forbes, 523 U.S. 666, 679

(1998) (distinguishing the government's decision to

43a

"make[] its property generally available to a certain

class of speakers [from a situation] when it does no

more than reserve eligibility for access to the forum

to a particular class of speakers, whose members

must then, as individuals, ‘obtain permission’ to use

it") (internal quotations and citation omitted);

Cinevision Corp. V. City of Burbank, 745 F.2d 560,

570 (9th Cir. 1984) ("[B]y granting [a private

promoter] access to the [municipal amphitheater] for

the presentation of music by a variety of performers,

the City transformed publicly owned property into a

public forum for expressive activity, even if the

expressive activity is promoted by a single entity.").

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.

44a

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. Prior to the exclusion of the works

at issue here, the city neither pre-screened submitted

works, nor exercised its asserted right to exclude

works. Indeed, controversial artwork was exhibited

despite complaints from citizens and employees.

Given the undisputed facts in the record concerning

45a

the selection and screening process for art to be

displayed at City Hall (or, rather, the lack thereof),

we conclude that the city retained no substantive

control over the content of the arts program. Both

Luhrs and Crutchfield testified that they left content

screening to the Arts Council, and Luhrs' letter to

Gurth confirms that he expected her to ensure the

propriety of the exhibits. The record is clear that the

Arts Council itself undertook no screening and, that

it affirmatively solicited the purportedly controversial

works at issue here. Combined with the fact that the

city established no specific criteria for exclusion of

art from the program, we are bound to conclude that

the city opened its halls to expressive activity and

thereby created a designated public forum in the art

gallery. Because the city's decision to exclude the

works by Hooper and Rupp was unjustified by any

compelling state interest (a subject discussed more

fully at section III(a)(3) infra), we conclude that the

district court erred in granting summary judgment to

Pasco.

46a

Turning to the artists' cross-motion for partial

summary judgment, we are obliged to view the

evidence in the light most favorable to the city. We

must therefore assume that, as a matter of policy,

Pasco expressly retained a "final say," or discretion

to exclude "controversial" works, and that, at least at

the outset, Crutchfield and Luhrs intended the exhibit

to be limited to uncontroversial works (whatever that

may mean). Pasco argues that this proves that it did

not intend to create a public forum, or alternatively,

that any forum created was expressly limited to

uncontroversial art.'° Under the authorities discussed

above, however, Pasco cannot hide behind its

"policy" if that policy is inconsistent with the city's

actual practice. Under the facts presented, we find

inconsistency as a matter of law.

'°Similarly, the dissent claims that we downplay the significance

of the "intent" requirement in Cornelius. But the dissent's focus on

outstanding factual issues and the need to focus on “intent” ignores

47a

Certain facts are undisputed. First, the city

concedes that it exerted little or no substantive

control over the selection and content of the art work

displayed at City Hall. The arts program was open to

art work of any form, and there was no prescreening

of exhibits prior to Hopper's submission. Therefore,

the basic structure of Pasco's arts program suggests an

intent to permit unrestricted expression. Second,

despite its stated policy of avoiding "controversial

art," Pasco never established criteria by which to

the actual language of Rule 56(c), which precludes summary

judgment where there is a dispute over "material fact[s]" (emphasis

added). Having created the designated public forum, no tnal is

needed to determine what might have been when we have before us

undisputed facts as to what actually occurred.

Contrary to any suggestion that we are weighing evidence, the

undisputed evidence is that once Pasco created this forum, the city

was inconsistent with respect to pre-screening, even as to who

would conduct such pre-screening. Such an inconsistent policy is

no policy at all for the purposes of forum analysis.

48a

assess whether or not a work would fall within the

policy. Instead, application of the policy was left

entirely to the discretion of city administrators.

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.'? See Cohen V. Calijfornia, 403 U.S. 15,

25 (1971) (describing the inability of government

''Pasco's policy against "offensive or politically motivated" art

appears at least as subjective as the policies criticized in the cases

cited above. Cf Mergens, 496 U.S. at 244 (after hours school access

barred to "noncurriculum related" student groups); Putnam, 221

F.3d at 845 (eligibility for links to the city's website restricted to

websites "promot[ingj the city's tourism, industry and economic

welfare"); Cinevision, 745 F.2d at 573 (ban on “hard rock"

concerts); Gregoire, 907 F.2d at 1374 (school access limited to

civic’ or education-related groups).

'2By definition, that which is “controversial” is "a cause of

49a

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 Magazine, Inc. v.

Falwell, 485 U.S. 46, 55 (1988) (permitting civil

liability for "outrageous" social commentary invites

viewpoint 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

disagreement," or subject to opposing views. Webster's Third New

Int'l Dictionary, p.1366. Whether or not a given work causes such

disagreement may hinge on the particular viewpoint an art piece is

deemed to espouse as much as the manner in which that view is

expressed. Widely accepted views will be much less likely to spark

controversy than expressions of the opposing (minority) view. Works

that represent conventional wisdom may not be perceived as

conveying a viewpoint at all. For example, where the "Starving

Man" sculpture was criticized as sending a bad message, one

suspects a statue of a “well-fed man” would not be.

50a

suppressing it... . government must remain neutral

in the marketplace of ideas."). Not only was Pasco's

policy intrinsically flawed, its enforcement of the

policy was, in practice, contingent upon the

subjective reaction of viewers of the artwork, as

perceived by the city management.'? 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

"The city does not appear to have affirmatively solicited any

feedback on the art work it displayed prior to Hopper’s submission.

Therefore, its assessment of viewers’ reactions would have been

based solely on opinions volunteered, a sample pool likely

weighted toward those voicing complaints.

Sla

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.

A review of the art work displayed during Pasco's

short-lived series of exhibits demonstrates that the

concerns articulated in the preceding paragraphs are

by no means hypothetical. It is undisputed that works

involving nudity were displayed in earlier exhibitions

without apparent negative comment. Pasco's post-hoc

distinction between the "abstracted" depictions of

nudity in these works and the perceived "sexual"

nature of Hopper and Rupp's submissions does not

erase the suspicion that a double-standard mi ght have

been applied. Cf Lakewood, 486 U.S. at 758

(discussing the potential for administrators to concoct

post-hoc rationalizations for inconsistent treatment in

the absence of substantive standards).

Such suspicion is brought into sharp relief by the

city's handling of the "Starving Man" sculpture. It is

52a

undisputed that this work actually did generate

negative feedback and, thus, would appear to fall, at

least prima facie, within the terms of the prohibition

on "controversial" art work.'* Both the city and

dissent cite testimony that the controversy

surrounding the "Starving Man" sculpture never rose

to the level created by the vork of Hopper and Rupp

and thus cannot be taken zs evidence of any genuine

inconsistency in Pasco's enforcement of its policy.

Given the posture of summary judgment, we must

accept such testimony unchallenged. Even so, Pasco

has failed to articulate any basis to validate its

asserted distinction in the degree of

"controversialness" separating the respective art

work other than the entirely subjective and ad hoc

'*1n addition, the political overtones suggested by the sculpture's

title and subject matter provide a second basis for its possible

exclusion.

53a

reactions of the limited subset of viewers whose

opinions came to the attention of city administrators.

To remand for tnal of this issue under such a

standard would only yield a verdict as arbitrary as the

standard itself. Moreover, to sanction the suppression

of speech | on this basis would be to abdicate

meaningful judicial review. See id. (without express

standards, "the use of shifting or illegitimate criteria

are far too easy.").

Having effectively opened its doors to all comers,

subject only a standardless standard, Pasco has failed

to exercise the clear and consistent control over the

exhibits in city hall that our cases require to maintain

a limited public forum. Its stated policy is belied by

"objective indicia" of a contrary intent. Paulsen V.

County of Nassau, 925 F.2d 65, 70 (2d Cir. 1991).

'SThe dissent's characterization of the Gallery as a "short-lived

experiment" understates the significance of the actions taken by

Pasco and the Arts Council in arranging the showings. The

54a

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 promote and

display the work of local artists as a means of

beautifying 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 participation of local artists because

it hoped to increase the aesthetic appeal of the new

city hall by adding art. Although there is some

evidence that unrestricted artist expression could be

agreements with the artists featured extensive documentation,

formal written contracts, prior discussion, and arrangement for

display space in City Hall. The Gallery ran three separate exhibits.

The dissent's efforts to shoehorn these exhibits into an

"experimental" status does not counsel for a different First

Amendment standard.

55a

deemed inappropriate for certain users of city hall,

the dissent concedes that "there is no evidence that

the displays, even if controversial, would have

directly affected the running of the city government."

Nor is this a case involving advertising or

commercial speech, where the government is

engaged in commerce and where allowing certain

expressive activity might harm advertising sales or

tarnish business reputation. See Lehman, 418 U.S. at

303-04; Children of the Rosary, 154 F.3d at 977-78.

For these reasons, with respect to the artists’

motion for cross summary judgment, we hold that the

city created a public forum, specifically a designated

public forum, in the art displays.

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

56a

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.") (citation omitted);

DiLoreto, 196 F.3d at 964-65. The city insists that

the works by Hopper and Rupp "were simply the

right thing in the wrong place." (quoting Justice

Sutherland in Euclid V. Ambler Realty Co., 272 US.

365, 388 (1926), for the proposition that "[a]

nuisance may be merely the nght thing in the wrong

place, like a pig in the parlor instead of the

barnyard"). What made the City Hall Gallery the

wrong place, the city contends, is the presence of

employees, children, and citizens seeking to conduct

their business with the city and, of course, the city's

content-based conclusion that plaintiffs' works were

political, sexual, and controversial. 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,

57a

was merely ejected from the parlor, not thrown off

the farm. But relegating the art to the barnyard does

not pass First Amendment 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 ofan

idea simply because society finds the idea itself

offensive or disagreeable.") (citations omitted);

Consolidated Edison Co. V. Public Serv. Comm'n,

447 U.S. 530, 537-38 (1980); Cinevision, 745 F.2d at

58a

S71."

[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 content alone."

745 F.2d at 571 (footnote omitted) (quoting Police

Dept. of Chicago V. Mosley, 408 U.S. 92, 96

(1972)).

'© 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 captive audience. See Cohen V. California, 403 U.S. 15,

21(1971); cf Lehman, 418 U.S. 307-08 (Douglas, J., concurring)

(distinguishing between expression one can avoid if one so chooses

and unavoidable expression).

59a

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." /d. (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 Amendment rights were

violated by the exclusion of their works from the

Pasco City Hall Gallery.'’ The district court erred in

denying their cross-motion for partial summary

judgment.

This result is, in certain ways, an unfortunate one.

We recognize that city administrators set out to

display art, not to censor it-although in the end,

censorship prevailed. We also acknowledge that they

walked a fine line as they tried to please the City

'7Under this analysis, we need not reach the question of viewpoint

discrimination.

60a

Council, city workers, the local arts community, and

the public at large, all of whom likely had different

views as to what constituted art "appropriate" for City

Hall. But while Pasco may have blundered into the

controversy that ended its arts program, it could have

avoided this problem by establishing and enforcing a

clearly articulated policy that would pass First

Amendment muster. Contrary to the dissent's

assertion that our decision here "will discourage cities

from experimenting with public art displays,” our

analysis in no way precludes such city programs

administered in a consistent and clearly articulated

maniuer. But the fact that the city was well intentioned

and acted in good faith does not excuse its violation

of the artists’ First Amendment nghts.

B. Municipal Liability

[10] Our analysis does not end with the conclusion

that there was a First Amendment violation. The city

can only be held liable if the acts in question were

undertaken pursuant to official policy or custom. See 7

Monell V. Dep 't of Social Services, 436 U.S. 658, :

6la

690-91(1978). The city has maintained that there are

genuine issues as to whether Crutchfield was a final

policymaker within the meaning of Monell. The

district court discussed the issue briefly, but decided

not to reach the merits because it perceived no

underlying First Amendment violation. We, too,

decline to reach this issue given the outstanding

factual dispute about Crutchfield’ s role.

[11] In Monell, the Supreme Court held that 42

U.S.C. § 1983 applies to municipalities and other

local government units, see 436 U.S. at 690, but

noted that a municipality may not be held liable on a

respondeat superior theory for the unconstitutional

acts of its employees. Rather, municipal liability

springs from an impermissible policy or practice:

[A] local government may not be sued under

§ 1983 for an injury inflicted solely by its

employees or agents. Instead, it is when

execution of a government's policy or

custom, whether made by its lawmakers or

by those whose edicts or acts may be fairly

62a

said to represent official policy, inflicts the

injury that the government as an entity is

responsible under § 1983.

Id. at 694; see also Gillette V. Delmore, 979 F.2d

1342, 1346 (9th Cir. 1992) (the Monell Court "made

clear that the municipality itself must cause the

constitutional deprivation and that a city may not be

held vicariously liable for the unconstitutional acts of

its employees under the theory of respondeat

superior") (citing Monell and City of Canton V.

Harris, 489 U.S. 378, 385 (1989)). The requirement

that action be taken pursuant to an official policy or

custom arises from the Court's recognition that

"Congress did not intend municipalities to be held

liable unless action pursuant to official policy of

some nature caused a constitutional tort." Monell,

436 U.S. at 691; see also City of SL

Louis V. Praprotnik, 485 US. 112, 122

(1988) ("vicarious liability would be incompatible

with the causation requirement set out on the face of

63a

§ 1983”).'* As we have noted, there are three ways

to meet Monell’s policy or custom requirement:

First, the plaintiff may prove that a city

employee committed the alleged

constitutional violation pursuant to a formal

government policy or a "longstanding

practice or custom which constitutes the

‘standard operating procedure’ of the local

government entity." Jett V. Dallas Indep.

Sch. Dist, 491 U.S. 701, 737 (1989)

(internal quotation omitted).... Second, the

plaintiff may establish that the individual

who committed the constitutional tort was an

'§ This is not to say that municipal liability is precluded where the

case involves a single decision by a policymaker an action taken

only once as opposed to a repeated course of conduct. As the

Supreme Court held in Pembaur V. City of Cincinatti, 475 U.S.

469, 481 (1986), an individual decision by a city's “authorized

decisionmaker.... surely represents an act of official government

policy."

64a

official with "final policy-making

authority" and that the challenged action

itself thus constituted an act of official

government policy. See Pembaur, 475

U.S. at 480-81; McKinley V. City of

Eloy, 705 F.2d 1110, 1116 (9th

Cir.1983).... Third, the plaintiff may

prove that an official with final policy-

making authontty ratified a subordinate's

unconstitutional decision or action and

the basis for it. See Praprotnik, 485

U.S. at 127; Hammond V. County of

Madera, 859 F.2d 797, 801-02 (9th Cir.

1988).

Gillette, 979 F.2d at 1346-47.

[12] Here, because the art program was not the

product of any formal policy or longstanding

practice, Hopper and Rupp must either show that the

city manager was a final policy-maker with respect to

65a

the arts program or that the city council ratified his

decision to exclude the works. Because there are

material facts in dispute as to this issue, we remand

to the district court for resolution of Monell liability.

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.

REVERSED AND REMANDED.

GOULD, Circuit Judge, concurring in part and

dissenting in part:

This case presents the question whether the City of

Pasco, Washington ("Pasco") violated the First

66a

Amendment when it invited local artists to display

their work in its new city hall and then refused to

permit certain pieces of art to be placed or remain on

display after the art provoked controversy. I concur

in the reversal of the award of summary judgment to

Pasco, but dissent from the award of partial summary

judgment to the artists based on the majority's

conclusion that Pasco created a designated public

forum. I respectfully dissent because factual issues of

Pasco’ s intent remain, United States Supreme Court

precedent dictates a different rule regarding the

creation of a designated public forum in light of the

summary judgment standard, and the Ninth Circuit

should wait for development of a full factual record

before creating a new rule. I also dissent because the

majority's ruling is unfair to and unworkable for

cities within the Ninth Circuit and likely will

discourage cities from experimenting with public art

displays, which ultimately will be more harmful for

artists than permitting Pasco to have its day in court.

67a

In 1994, Pasco remodeled a former school building

and converted it into a new city hall. In an effort to

decorate the bare walls of the new space, Gary

Crutchfield, the City Manager, and his administrative

assistant, Kurt Luhrs, decided to institute an

experimental program whereby local artists would be

invited to display their work in the newly remodeled

building. Because Crutchfield did not want city

employees to devote time and energy administering

this program, Luhrs sought assistance from the Arts

Council of Mid-Columbia Region ("the Arts

Council"), a private entity that promoted the arts.

Luhrs' primary contact at the Arts Council was its

director, Barbara Gurth. Luhrs and Gurth agreed that

the Arts Council would locate the art and administer

the program in exchange for a $500 quarterly fee.

During initial discussions, Luhrs made clear to

Gurth that Pasco was concerned about generating

controversy: He instructed her that, in selecting art

for the program, work of a "questionable nature"

68a

should not be displayed. In a letter to Gurth, he

described Pasco's concerns about this experimental

program:

During our conversation I got the impression

that your board felt that our approach may not

be a commitment to the long term management

of such a project. This is far from the case. Both

Gary and I feel that this approach will ensure

support when I bring this item to council in a

public meeting. 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 of 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. Nevertheless, without a

demonstration, I feel that the unfounded fears of

a few citizens would ruin this great opportunity

69a

for introducing the arts to our citizens.

Consistent with Pasco's concerns and shortly after

announcing the project, Gurth sent a letter to artists

who had expressed interest in the project and warned

of the need to avoid controversial subject matter:

Subject matter: Wide open, but with the

restraints that would be expected with a

public arts project paid -fer—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."

Indeed, the Arts Council will not. I have

worked for five years to bring the cities on

board for the arts, and I will not jeopardize

70a

our progress. Additionally, I do not think

that regional art in this area presents a

problem in this regard, but the Council will

reserve the right to reject subject matter that

the committee feels may present a problem

for a conservative public sector. As an art

historian whose major is in post-WW II

American Art, this is an enormous

compromise for me, but as an arts

administrator motivated by the belief that the

arts are necessary to the construction of a

well balanced society, I realize compromise

is necessary. Rejection of a particular piece

should not, therefore, be construed by an

exhibiting artist as censorship, but as a

means of compromise to encourage public

partnerships for arts action.

Thus, in announcing the program to the arts i

community, Gurth suggested that controversy would

destroy the project and that artists submitting work

Tla

could expect to be censored if their work was

controversial.

There is, however, ambiguous and contradictory

evidence about who would take responsibility for

screening submitted artwork. Gurth's announcement

letter suggested Arts Council responsibility ("the

Council will reserve the right to reject subject matter

that the committee feels may present a problem for a

conservative public sector"). City Manager

Crutchfield also understood that the Arts Council

would screen works for suitability, testifying that the

"Arts Council would do everything." Similarly,

Crutchfield's assistant Luhrs testified that Pasco had

no expertise in art and that the Arts Council should

ensure that artists presenting political or offensive art

would not be invited to participate. On the other

hand, after the onset of this litigation, Gurth testified

that she believed Pasco not the Arts Council would

be responsible for screening. She said that the Arts

Council viewed itselfas a "middleman" and although

it planned to convene a screening committee if the

72a

program became permanent, it did not intend to do

so, and did not do so, in the initial stage. More

specifically, she testified:

Mr. Luhrs did express a concern on the

telephone that work of a questionable nature

not be submitted and I assured him that I

didn't think that was a problem. This was not

a progressive area, where the visual arts are

concerned, and it's made up mainly of

landscape and flower painters, and there had :

never been a question about work being |

questionable in its content. So I assured him

I didn't think it would be a problem, but that

they [Pasco] would have to make that

judgment.

On cross-examination, however, Gurth conceded

that she may have agreed with Luhrs that "[w]e

would both probably have a hand" in content control.

The course of events of the short-lived experiment

is not entirely clear. The exhibits were scheduled to

73a

run three months at a time. The first exhibit ran from

August through October 1995 and the second ran

from November 1995 through January 1996. There is

no evidence that either Pasco or the Arts Council

screened the artwork before its display in these two

exhibits. Although some individuals criticized a few

pieces, there is no evidence that Pasco or the Arts

Council prevented the display of any work or that

they removed any work from display in response to

public complaints.

The art displayed during these two exhibits

‘generated very little controversy. Some works

depicted nudity, but Gurth testified these were

"abstracted" and nothing in the record indicates that

they caused a genuine controversy. The record

indicates, however, some controversy surrounding a

sculpture known as "The Starving Man." Gurth

testified, "from the very first exhibit, some people

wanted one of the works removed. It was a clothed

figure . . . . The figure was [a] life-size ceramic

figure, and he called it 'The Starving Man.'" When

74a

asked about this criticism, Gurth testified: "It didn't

send a good message, a starving man." But she also

testified that there was never any serious discussion

about removing it. Apart from "The Starving Man,"

the first two exhibits were uneventful.

Appellants Hopper and Rupp were invited to

participate in the third exhibit, scheduled to run from

February through April 1996. Luhrs testified that

before the third exhibit, Gurth called to tell him she

had not reviewed Hopper's work because she was out

of town and that Luhrs might want to "check it out."

This call prompted Luhrs to review Hopper's pieces

when they arrived, although he had not reviewed any

previous submissions. Gurth denied this telephone

conversation took place. In any event, when Hopper

submitted prints showing a naked couple in varied

scenes, Crutchfield and Luhrs refused to hang the

| prints.

Rupp submitted a sculpture titled "To the

Democrats, Republicans, and Bipartisans," which

depicted a woman's bare buttocks "mooning" the

75a

viewer. Although Crutchfield and Luhrs initially

permitted Rupp's piece to be displayed, complaints

ultimately prompted Crutchfield to direct its removal.

Hopper and Rupp sued both Pasco and the Arts

Council asserting, inter alia, a cause of action against

Pasco under 42 U.S.C. § 1983 for the alleged

violation of the First Amendment. Hopper and Rupp

sought declaratory and injunctive relief, damages,

and attorney's fees. On cross-motions for summary

judgment, the district court ruled for Pasco and

against Hopper and Rupp. This appeal followed.

In Perry Education Assn. V. Perry Local

Educators’ Assn., 460 U.S. 37 (1983), the Supreme

Court adopted a "forum analysis" framework for

determining when restrictions of speech on

government property are permissible. Within this

framework, the Court recognized three types of

forums: traditional, designated, and non-public. Jd. at

45-46.

76a

There is no question that Pasco’ s city hall is not a

traditional public forum. Instead, as the majority

correctly recognizes, resolution of the dispute in this

case turns largely on whether Pasco converted its city

hall from a non-public forum, where it would have

relatively broad power to regulate expression, into a

designated public forum, where its constitutional

ability to regulate speech would be strictly limited.

More specifically, we are not dealing here with an

attempt by Pasco to censor or preclude the showing

of artwork by Hopper, Rupp, or any other artist in

traditional public forums. Nor are we concerned with

an attempt generally to preclude the showing of

"controversial" artwork at all or selected locations

within Pasco city limits. Instead, this case is about

Pasco's right to regulate expression in a space that

normally is not a public forum and that can become

a public forum only through Pasco's intentional

action creating one. "[T]he First Amendment does

not guarantee access to property simply because it is

owned or controlled by the government." United

——

77a

States Postal Service V. Greenburgh Civic Ass'ns.,

453 U.S. 114, 129 (1981).

The key to whether the government has created a

designated public forum is governmental intent.

Cornelius V. NAACP Legal Defense and Educational

Fund, Inc., 473 U.S. 788, 802 (1985). The Supreme

Court has identified three primary factors to consider

in determining whether the government intended to

create a designated public forum: (1) what the

government said; (2) what the government did; and

(3) the compatibility of the space with the expression.

The government does not create a public forum

by inaction or by permitting limited discourse,

but only by intentionally opening a

nontraditional forum for public discourse.

Accordingly, the Court has looked to the policy

and practice of the government to ascertain

whether it intended to designate a place not

traditionally open to assembly and debate as a

public forum. The Court has also examined the

78a

nature of the property and its compatibility with

expressive activity to discern the government's

intent.

Id. at 802 (citing Perry, 460 U.S. at 47) (internal

citations omitted). We must consider these factors to

determine whether they “indicate an intent to

designate a public forum dedicated to expressive

activities." Diloreto V. Downey Unified Sch. Dist.

Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999). This

is precisely where, in my view, the majority goes

astray as it does not consider each of the Cornelius

factors in light of the correct summary judgment

standard.

In ruling on a motion for summary judgment,

"[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge

. . . « The evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn

in his for her] favor." Anderson V. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). Summary judgment is

79a

proper only if there is "no genuine issue as to any

material fact." Jd. at 258. A "genuine issue exists,

precluding summary judgment, as long as "the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party." /d. at 248. "[A]ll

that is required is that sufficient evidence supporting

the claimed factual dispute be shown to require a jury

or judge to resolve the parties’ differing versions of

the truth at trial." /d. at 249 (quoting First Nat '] Bank

of Arizona V. Cities Serv. Co., 391 U.S. 253, 288-89

(1968)).

In light of these cautionary and salutary principles,

summary judgment for either party is inappropriate

because the three Cornelius factors support

reasonable inferences in favor of either party on the

issue of Pasco' s intent to create a designated public

forum.

Ill

If the evidence is viewed in the light most favorable

to Hopper and Rupp, the non-moving parties with

respect to Pasco's motion for summary judgment, and

80a

if all permissible inferences are drawn in their favor,

there is no question the district court erred in granting

Pasco summary judgment based on the finding that

the city hall was a non-public forum. To this extent, I

agree with the majority's analysis.

Pasco's initial communications with the Arts

Council indicated a concern to avoid controversial

subject matter. Viewing the evidence in the light most

favorable to Hopper and Rupp, however, Pasco's —

conduct does not reflect its expressed intent. Before

the incidents with Hopper and Rupp, neither Pasco

nor the Art's Council pre-screened the artwork.

Evidently all submitted art was displayed. Although

some art generated a small degree of controversy and

was arguably political (e.g., the "Starving Man"),

Pasco made no effort to remove any art. The "City

Hall Art Gallery” was located in the lobby of city hall,

which a reasonable juror might perceive to be a

natural place for the display of all types of art if all

inferences are given the artists. Moreover, there is no

evidence that the displays, even if controversial,

8la

would have directly affected the running of the city

government. Cf’ Cornelius, 473 U.S. at 792 (before

regulations "the increasing number of entities seeking

access to federal buildings and the multiplicity of

appeals disrupted the work environment and confused

employees who were unfamiliar with the groups

seeking contributions").

Viewing this evidence in the light most favorable to

Hopper and Rupp, a reasonable juror could conclude

that even if Pasco initially intended to permit display

only of selected, non-controversial art, it abandoned

that intent. Similarly, in this light, the nature of the

space and Pasco's conduct could support the

conclusion that Pasco intended to open its city hall to

the unrestricted display of art.

The district court assumed the role of trier of fact

when it concluded that Pasco' s stated policy trumped

any reasonable inferences that might be drawn from

Pasco's actual practice or from the nature of the

space. This was error and, as the majority correctly

determines, summary judgment for Pasco must be

82a

reversed. See Liberty Lobby, 477 U.S. at 250-51.

I respectfully disagree, however, with the majority's

further holding that Hopper and Rupp are entitled to

partial summary judgment. We must view the

evidence in the light most favorable to Pasco when

considering Hopper and Rupp's cross-motion for

summary judgment. Viewing the evidence in this

light, a reasonable juror could find that Pasco did not

intend to open its city hall as a public forum.

It is undisputed that Pasco's stated intent at the

outset of the experimental project was not to open its

city hall to unrestricted or indiscriminate artistic

activity. Viewed in the light most favorable to Pasco,

this undisputed evidence and reasonable inferences

therefrom alone are sufficient to preclude a partial

summary judgment for Hopper and Rupp on the

public forum and free speech issues. To grant

summary judgment to Hopper and Rupp in light of

this evidence of Pasco's intent, we must either: (1)

weigh this important evidence and determine it counts

83a

for nothing; (2) conclude that Pasco did not mean

what it said; or (3) conclude that Pasco meant what it

said but later changed its mind. However, we may not

weigh and interpret evidence because this is a

function solely reserved for the trier of fact.

Reasonable inferences that a trier of fact may draw

from the nature of the space also preclude granting

partial summary judgment to Hopper and Rupp. Both

Pasco and the Arts Council expressed concern that

continued funding might be jeopardized by a display

of art that generated controversy. Luhrs' letter to the

_Arts Council stated: "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 of the Arts, i.e.

offensive or politically motivated art." In response,

Gurth's announcement letter noted: "I have worked for

five years to bring the cities on board for the arts, and

I will not jeopardize our progress." Viewing these

statements in the light most favorable to Pasco, a trier

of fact could reasonably conclude that the space was

84a

not, in fact, compatible with an open public forum.

Similarly, Pasco's conduct was not unambiguous

and does not necessarily support the inference that

Pasco intended to create a designated public forum.

Even assuming that Pasco did not perform any

screening until it encountered Hopper's and Rupp' s

pieces, this does not compel the conclusion that Pasco

intended to create a designated public forum. A

reasonable juror, viewing the evidence in the light

most favorable to Pasco, could conclude that any lack

of screening was the result not of a conscious plan,

but of inaction caused by inadvertence or a

breakdown in communications. While Pasco thought

the Arts Council was screening the artwork to avoid

controversial material, the Arts Council believed it

was a middleman subject to Pasco's final

determination to exclude objectionable work. As

Cornelius. makes clear, "[{t]he government does not

create a public forum by inaction or by permitting

limited discourse, but only by intentionally opening

a nontraditional forum for public discourse." 473 U.S.

at 802.

Similarly, a reasonable juror could conclude that

the brief experimental period before Pasco excluded

Hopper's and Rupp's works is too short, and the

record too sparse, to show any unambiguous intent to

open the forum. Viewing the evidence in the light

most favorable to Pasco, there was no substantial

controversy before the controversy regarding

Hopper's and Rupp's pieces. As noted above, the

earlier abstracted nudes generated virtually no

comment. And although the "Starving Man" piece

generated some dispute, Gurth testified:

Question: Did you have a discussion about

removing it, a serious discussion?

Answer: No, it didn't escalate to that point. I

simply alerted the artist that it may

happen, and we were prepared to take

it out if Pasco insisted. And so the

artist said that was fine by him. He

had no qualms with it, it would only

enhance his reputation.

86a

Viewing this evidence in the light most favorable to.

Pasco, a reasonable juror could infer not that Pasco -

failed consistently to enforce a policy of excluding

‘controversial art, but that before encountering

Hopper's and Rupp's pieces, Pasco never faced

occasion or need to enforce the policy. The majority's

conclusion that Hopper and Rupp are entitled to

summary judgment depends on its weighing of these

conflicting inferences a function properly reserved

for the trier of fact.

I respectfully do not agree with the majority's

reliance on Christ's Bride, Planned Parenthood,

Grace Bible, and United Food to grant summary

judgment to Hopper and Rupp. When fully examined,

these cases highlight the ambiguity of the evidence in

this case as well as the need for a full trial to develop

an adequate record. |

In Christ's Bride Ministries, Inc. V. SEPTA,

148 F.3d 242, 244 (3rd Cir. 1998), cert. denied, 525

U.S. 1068 (1999), the Third Circuit reviewed the

87a

decision of the Regional Transit Authority ("RTA") to

remove a poster from a bus submitted by an anti-

abortion group, which stated "Women Who Choose

Abortion Suffer More & Deadlier Breast Cancer."

There, following a bench trial the district court found

that the Transit Authority had not created a public

forum and accordingly could permissibly remove the

poster. Jd. The Third Circuit, having the benefit of a

full record before it, reversed. The court noted that the

RTA had a long practice of accepting numerous ads

on a wide range of topics, including religious and

political messages, explicit ads regarding safe sex,

abstinence and AIDS, and ads in favor of abortion

rights. Of the many such controversial advertisements

submitted, the RTA _ rejected or requested

modification of only three - none of which related to

abortion. Jd. at 251-52. The Third Circuit thus

concluded that the RTA's practice of permitting

numerous controversial advertisements and several

abortion-related advertisements indicated an intent to

create a public forum for the display of material

88a

relating to abortion. Jd. at 252. Moreover, the court

found that the RTA's stated policy also supported the

inference that it intended to create a public forum

because the policy did not provide for the type of

limitations on speech reflected by the removal of the

anti-abortion poster. Jd.

Here, in stark contrast, there is no record of a long

practice allowing controversial artwork. During the

experimental period, there was only a scintilla of

evidence suggesting some inchoate controversy

surrounding one piece’ and no evidence of any serious

controversy. We cannot correctly conclude as a

matter of law that Pasco had a consistent practice of

permitting controversial! artwork. In the short time the

project proceeded, Pasco was faced with few

'The sparse record does not contain any photograph, drawing or

replica of this piece. The fact that the record is not sufficiently

developed to determine the nature of any prior "controversy" further

supports a remand for a trial on the merits.

89a

instances of even arguably controversial art. And

unlike Christ's Bride, Pasco's stated policy is not

consistent with an intent to create a designated public

forum. Christ's Bride does not support the majority's

conclusion that Hopper and Rupp are entitled to

partial summary judgment rather than a trial.

Similarly, neither Planned Parenthood Ass 'n V.

Chicago Transit Auth., 767 F.2d 1225 (7th Cir.

1985), nor Grace Bible Fellowship, Inc. V. Maine

Sch. Admin. Dist. #5, 941 F.2d 45 (1st Cir. 1991),

supports the proposition that summary judgment is

appropriate where intent to create a designated public

forum is ambiguous, as it is here. In Planned

Parenthood, following a bench trial the district court

found that the Chicago Transit Authority ("CTA")

created a limited public forum on its buses and thus

improperly excluded the plaintiff's abortion-related

advertising. 767 F.2d at 1228. The district court

found that the CTA' s alleged policy of excluding

certain material (such as the advertisement at issue)

was contrived for the lawsuit and that over a ten-year

90a

period the CTA permitted a wide range of

controversial advertising, including advertisements

relating to abortion. /d. The only issue on appeal was

whether these factual findings were clearly

erroneous. /d. At 1228-29. Similarly, in Grace Bible, |

following a bench trial the district court found that |

the defendant school district created a designated

public forum. 941 F.2d at 46-47. The First Circuit

affirmed on the ground that the school district's

written policies indicated an intent to open its

facilities indiscriminately to the community, rather

than to restrict access to school-related uses. /d. at

47-48. Further, the district's practice of allowing

many organizations to use its facilities reflected this

intent. Jd.

Both Planned Parenthood and Grace Bible

involved an extensive record of a past practice

permitting the type of speech the government later

sought to ban, which contradicted the government's

claim that it limited access to its property. Both

involved either an express policy demonstrating an

| anne kun meeM ren

9la

intent to open the space or a post hoc policy

contrived to conceal censorship. And in both cases a

trial was conducted, the record fully developed, and

factual determinations made at trial were controlling.

Here, in contrast, the record of Pasco' s past practice

is barely existent and Pasco’ s express policy

genuinely does not show an intent to create a

designated public forum. And perhaps most

importantly, neither party has had the opportunity to

develop a full record at tnal and key facts cannot

properly be determined on this appeal.

United Food & Commercial Workers Union, Local

J099 V. Southwest Ohio Reg'l Transit Auth., 163

F.3d 341(6th Cir. 1998), similarly does not support

granting summary judgment for Hopper and Rupp.

There, the Sixth Circuit relied on Cornelius and

reasoned that "[w]je . . . must closely examine

whether in practice [the transit authority) has

consistently enforced its written policy in order to

satisfy ourselves that [its) stated policy represents its

actual policy." /d. at 353. Because the union did not

92a

identify any advertisements accepted by the transit

authority that violated the written policy, the court

noted "we have no reason based on the record at this

time to believe [the transit authority) applies its

written policy on an ad hoc basis." Jd. However, the

court observed "[s]hould [the union] introduce

evidence at trial demonstrating that [the transit

authority) has not consistently followed its written

policy, but instead has maintained an ad hoc policy

where the acceptability of an advertisement depends

on the whim of the decision-maker, this would

strongly suggest that [the transit authority) has

created a public forum." /d. at n.6. As previously

discussed, here there is no evidence demonstrating

Pasco's inconsistent enforcement of its written policy

because the experimental exhibitions generated little

to no controversy with which to test its stated policy.

United Food does not support the majority's use of a

scant record to grant partial summary judgment to

Hopper and Rupp on the public forum issue; instead,

United Food supports remanding this issue for trial.

93a

Certainly inconsistent enforcement of a policy

may be evidence of governmental intent to create a

designated public forum. And a jury instruction on

the standards for determining intent might properly

encourage consideration of this factor. If enforcement

history is considered at a trial, and a trier of fact finds

the history supports a determination of intent to

create a designated public forum, this evidence may

be properly credited by an appellate court.

Notwithstanding, these principles do not justify the

majority's approach of making an ambiguous

enforcement practice----- not considered by a trier of

fact-----the sole determining factor.

The Supreme Court instructs that governmental

intent is the key to forum analysis because the

government does not convert its property into a

public forum absent an intent to do so. Cornelius,

473 U.S. at 802; see also General Media

Communications, Inc. V. Cohen, 131 F.3d 273, 279

(2d Cir. 1997) (intent is "touchstone" of forum

94a

analysis); Sentinal Communications Co. V. Watts,

936 F.2d 1189, 1202 (llth Cir. 1991) (same);

Gregoire V. Centennial Sch. Dist., 907 F.2d 1366,

1386 (3d Cir. 1990) (same); Stewart V. District of

Columbia Armory Bd., 863 F.2d 1013, 1016 (D.C.

Cir. 1988) (same). It necessarily follows that whether

a government entity intended to open a forum is an

"inherently factual inquiry that should not be

resolved without due attention to an underlying

record." Air Line Pilots Ass 'n, Int'l V. Dept. of

Aviation of the City of Chicago, 45 F.3d 1144, 1152

(7th Cir. 1995); Stewart, 863 F.2d at 1018. Where

important constitutional issues turn on the outcome

of the intent inquiry, summary judgment is likely to

be inappropriate. Searcey V. Crim, 815 F.2d 1389,

1392-93 (11th Cir. 1987) (summary judgment on

issue of government intent to create limited public

forum inappropriate); May V. Evansville-

Vanderburgh Sch. Corp., 787 F.2d 1105, 1115 (7th

Cir. 1986) (same); see also, eg. Perry V.

Sinderman, 408 U.S. 593, 598 (1972) (where

du deta ae Ob SN os

ti i a ae

95a

government's motive was element of § 1983 claim,

summary judgment was improper).

Summary judgment almost certainly is

inappropriate in a case such as this where intent is at

issue. "In many constitutional and civil rights cases,

a necessary element of the claim for relief presents

an inquiry into the state of mind of one or more of

the parties .. . . [C]laims requiring a determination

regarding intentions or motives are particularly

unsuitable for summary adjudication." Wright, Miller

& Kane, Federal Practice and Procedure, Civil 2d §

2732.2 (1998). In fact, in a related context involving

a plaintiffs claim that he had been fired for

exercising his First Amendment rights, this court

noted that "a fair resolution" of the issues of the

employer's motive and intent - essential elements of

the claim "requires a full trial on the merits," and

that those questions are "plainly . . . reserved to the

trier of fact." Peacock V. Duval, 694 F.2d 644, 646

(9th Cir. 1982) (internal citations and quotations

omitted).

96a

Such is the case here. At best the record is

incomplete and supports contrary inferences

regarding Pasco's intent, thus precluding summary

judgment for either party. A grant of partial summary

judgment to Hopper and Rupp is inconsistent with

the Supreme Court's teaching in Liberty Lobby,

which bars a court from making factual

determinations when the record supports conflicting

inferencas. "[At] the summary judgment stage the

judge's function is not himself [or herself) to weigh

the evidence and determine the truth of the matter but

to determine whether there is a genuine issue for

trial." Liberty Lobby, 477 U.S. at 429.

A failure correctly to apply the Cornelius factors

and the proper summary judgment standard to the

key question of Pasco's intent is error.” The majority

?The majority incorrectly assumes that a forum was created, and

then argues that there is no genuine issue of material fact

conceming Pasco's allegedly inconsistent screening policy.

Majority Opinion at 2132 n. 10. With respect, the majority misses

97a

in effect creates a new per se rule that the

government's failure systematically to enforce an

exclusionary policy without regard to whether there

was even an appropriate occasion to enforce such

policy conciusively establishes that it has created a

the point. There is a genuine issue of material fact on Pasco's

intent. This requires trial to determine if a limited public forum

was ever created. As United States Supreme Court and other

authority make clear, intent, and not enforcement policy, is the

touchstone of forum analysis. The majority's analysis infers that the

"structure of Pasco's arts program suggests an intent to permit

unrestricted expression." Majority Opinion at 2132. It is a stretch

for the majority to conclude that the structure of the program proves

that Pasco's intent is unmistakably different from what Pasco stated

in its letters. This requires the majority to draw several inferences

adverse to Pasco. Perhaps this can be argued, but when all

inferences properly are given Pasco on summary judgment, there

can be no doubt that Pasco's letters and statements show that there

is a genuine issue of material fact regarding its intent. It is puzzling

that the majority mistakenly assumes the role of fact finder on the

98a

designated public forum. This new rule conflicts with

the Supreme Court's admonishment in Perry and

Cornelius that intent is the key to the public forum

inquiry. It also contradicts the Supreme Court's

instruction that a court must look to three factors to

determine intent: the government's policy, the

government's conduct, and the nature of the space. If

reasonable inferences from these three factors support

a jury finding that the government did not intend to

open up a space for unrestricted expression, partial

summary judgment for Hopper and Rupp is

inappropriate. See Liberty Lobby, 477 U.S. at 428. As

demonstrated above, each of these factors support

issue of intent, which courts almost universally view as a factual

issue. The majority's reliance on snatches of language from cases

that went to trial hardly answers this objection. And under the

Supreme Court's controlling precedents, a lack of consistent

enforcement policy, properly viewed, is only one factor that the

trier of fact may consider in assessing intent.

« 99a

such a finding here. Pasco' s intent is an open question

and the issue should be submitted to a jury after a trial

that fully develops the facts.

Moreover, the majority's new rule undermines

important First Amendment interests. As the Supreme

Court recently explained:

The Cornelius distinction between general .

and selective access furthers First

Amendment interests. By recognizing the

distinction, we encourage the government to

open its property to some expressive activity

in cases where, if faced with an all-or-nothing

choice, it might not open the property at all.

That this distinction turns on governmental

intent does not render it unprotective of

speech. Rather, it reflects the reality that, with

the exception of traditional public fora, the

government retains the choice of whether to

designate its property as a forum for specified

classes of speakers.

100a

Arkansas Educ. Television Comm'n V. Forbes, 523

U.S. 666, 680 (1998). Faced with a rule that a

government's ambiguous conduct alone can support a

§ 1983 action for damages for First Amendment

violations, governments may see their choice as being

the "all-or-nothing” choice described in Forbes and

likely will then refuse to open the property at all. This

result harms artists, governments, and the public alike.

It is not necessary to create a new rule that conflicts

with Supreme Court precedent when we can instead

remand for a trial and abide that precedent. For the

foregoing reasons, I respectfully dissent.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 98-35795

D.C. No. CS-97-137-FVS

JANETTE HOPPER, and SHARON RUPP,

Plaintiffs-Appellants,

CITY OF PASCO, and ARTS COUNCIL

OF THE MID-COLUMBIA REGION,

Defendants-Appellees.

ORDER

Before: BROWNING, McKEOWN, §$and

GOULD, Circuit Judges.

A majority of the panel has voted to deny the

petition for rehearing en banc. Judge McKeown has

voted to deny the petition for rehearing en banc, and

Judge Browning so recommends. Judge Gould votes

to grant the petition for rehearing en banc.

The full court has been advised of the petition, and

no judge of the court has requested a vote on the

petition for rehearing en banc. Fed. R. App. P.35.

The petition for rehearing is DENIED.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

NO. CS-97-137-FVS

ORDER

JANETTE HOPPER; et al,

Plaintiffs,

vs.

CITY OF PASCO; et al.,

Defendants.

BEFORE THE COURT are defendant's motion

for summary judgment, motion to allow disclosure of

an expert witness, motion to strike deposition

testimony and motion to file an overlength brief, and

plaintiffs' cross-motion for partial summary

judgment, motion to strike, motion to file an

overlength brief and motion to shorten time. These

matters were argued on March 27, 1998. Plaintiffs

were represented by Paul J. Lawrence and Daniel C.

Poliak; defendant by George Fearing. This Order

will memorialize the Court's oral rulings.

Background

This action was brought by artists Janette Hopper

and Sharon Rupp against the City of Pasco [City] and

The Arts Council of Mid-Columbia Region [Arts

Council], a private entity promoting the arts. 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. Plaintiffs allege they were censored in

violation of the First and Fourteenth Amendments.

In 1994, the City remodeled a former school

building and converted it into anew city hall. Luhrs

dep. 10. The expansive bare walls in this cavernous

structure were unattractive. Crutchfield dep. 26.

Administrative Assistant Kurt Luhrs considered

inviting local artists to dress the halls up with

exhibitions of their work. Luhrs dep. 16;

en nner E

Crutchfield dep. 26. He cleared the plan with City

Manager Gary Crutchfield. Luhrs dep. 18, 34.

Crutchfield agreed this could be an interesting way to

improve the decor of the building. Crutchfield dep.

31. He did not think it necessary to approach the city

council at that juncture. Crutchfield dep. at 26;

Luhrs dep. 31-32. He intended to embark on an

experimental basis, and if the undertaking proved

permanently fund the impromptu gallery.' Luhrs

dep. 32.

‘Crutchfield considered the undertaking an administrative function,

not a legislative one. Crutchfield dep. 26-27, 98. He thought the

trial program to be in the nature of a maintenance issue, such as

renting decorative plants or contracting for cleaning services.

Crutchfield dep. 31-32. Promoting the arts is not so dangerous as

establishing a religion or espousing a partisan viewpoint, but it is

not far behind. The decision to open a gallery was one to be made

by the policy-making body after consultation with its legal advisor,

not the policy implementers.

Although supporting the program, Crutchfield was

not willing to commit the time and energy of his

employees in administering it. Crutchfield dep. 30;

Luhrs dep. 18, 33. Luhrs sought outside assistance.

He approached Barbara Gurth, the director of the

Arts Council. Gurth was delighted with the idea and

agreed to locate area artists interested in showing

their works. Luhrs dep. 21; Gurth dep. 23, 35-36.

The Arts Council would also administer the program.

Gurth dep. 57. The City would pay the Arts

Council a $500 per quarter fee. Gurth dep. 36;

Luhrs dep. 41-42. Luhrs cautioned Gurth that

content-based restraint would be required, at least

initially, and work of a "questionable nature" should

not be displayed. Gurth dep. 40. The precise nature

of such restraint was not discussed (Gurth dep. 42),

but Luhrs believed it imperative that controversy be

_ avoided. Ex. 12; Gurth dep. 24-26, 118.

As an artist and art historian, Gurth chafed at the

prospect of censorship, but as an administrator

anxious to promote the arts, she understood that

compromise was a political necessity and that

offending the public would be counterproductive.

Ex. 24. The Arts Council agreed on the importance

of avoiding controversy. Gurth dep. 118.

In announcing the program to the art community,

Gurth sent out a notice to prospective participants

advising that "all works will be screened for content

and professional presentation" and that subject matter

was "Wide-open, but with the restraints that would

be expected with a public arts project paid for with

public money." Ex. 24. The notice made it clear that

controversy would certainly doom the project and

that artists could expect to be censored. Id. Neither

Hopper nor Rupp were on the roster of artists

expressing an interest in participating. Rather, they

were solicited by Arts Council staffer Valerie

Edmonds and thus did not receive the notice.

Edmonds dep. 37-38, 42; Rupp dep. 42; Gurth

dep. 120-21. According to Rupp, she was advised

by Edmonds that controversial work would not be a

problem. Rupp dep. 47-48. According to Hopper,

she was never told that her work would be screened

or that she should avoid controversy or that there

were any content restraints. Hopper dep. 82-83.

The notice referred to above leaves the impression

that the Arts Council would screen works for

suitability. Ex. 4. Crutchfield was laboring under

this impression. Crutchfield dep. 38-39. Luhrs felt

the City should not be judging content because no

one at city hall had any expertise in art. Luhrs dep.

59. He trusted the Arts Council to ensure that artists

engaging in political or offensive art would not be

invited to participate. Luhrs dep. 54-55, 58. He had

the expectation that the Arts Council would select

good quality art. Luhrs dep. 21. However, he did not

tell Gurth of this expectation other than what he

stated in.a letter to her dated June 20, 1995. Luhrs

dep. 58. That letter is vacuous, but does suggest by

fair implication that responsibility for content control

lay with the Arts Council. Ex. 12.

Gurth testified this was not her understanding.

Perhaps some time in the future when the program

was permanent the Arts Council would convene a

screening committee, but not now. Gurth dep. 63-

64. At the inception stage, the Arts Council would

screen only for professional presentation; LS.

appropriate framing, and had no concern with

content. Gurth dep. 57-58. According to Gurth, the

Arts Council's function was to administer rather than

to screen for suitability. Gurth dep. 37. The Arts

Council was "kind of like the middleman. We're the

grocery store that distributes peas and carrots."

Gurth dep. 41. The authority to accept or reject

works was the City's. Gurth dep. 41, 118.

According to Gurth, it was "always understood" that

content control lay with the City. Id. When artists

contacted the Arts Council with inquiries about

content, they would be told "it was in the hands of

City Hall."* Gurth dep. 62.

The result of this breakdown in communication

was that although art was to be content-regulated, no

one was screening for content. Edmonds dep. 26-27.

In the end, the Arts Council was merely a facilitator.

The participating artists selected themselves and the

content of their work. Gurth dep. 37; Edmonds

dep. 26. According to Gurth, "We didn't select the

artists. We did not pass any qualitative judgment on

anybody, or the work, either. We just simply said:

These are the people who have agreed to hang this

month and we can take this many." Gurth dep. 37. _

2 On cross-examination, Gurth conceded that in her phone

conversations with Luhrs, they may have agreed that "we would both

probably have a hand" in content control. Gurth dep. 123.

The shows were scheduled to run three months at

atime. The first ran from August through October

1995 and the second from November 1995 through

January 1996. These shows were for the most part

well received and all involved were pleased with the

fruit of their efforts. Gurth dep. 67-60; Crutchfield

dep. 40, 42. Several pieces came under criticism

from city employees and members of the public and

removal of one was threatened. Gurth dep. 45-46.

The artist whose work drew fire did not take offense.

Gurth dep. 47. The piece remained on display

despite the criticism. Gurth dep. 49. This was

Crutchfield's decision. Luhrs dep. 107.

For the third show, scheduled to run from February

through April 1 1996, the Arts Council invited

Hopper and Rupp to join the other participating

artists. Both entered into a written contract with the

3 Arts Council promising to display their work

throughout the quarterly period and to pay a 20%

commission to the Arts Council should their work be

10c

sold while on display. Edmonds dep. 39-40; Hopper

dep. 11-12; Exs. 64 & 66.

\ Hopper worked with linoleum relief prints. When

she submitted her prints, Crutchfield and Luhrs

refused to hang them, citing sexual content.

Crutchfield dep. 45-47. The prints consisted of a

series of ten depictions of a naked couple engaged in

various activities. Ex. 2. None portrayed explicit

sexual conduct, but several were suggestive and one

contained full frontal male nudity. Luhrs testified he

was forewarned when Gurth called him to advise that

she had not reviewed Hopper's prints because she was

not then in town and he might want to "check it out."

Luhrs dep. 69-70, 88-89. This call prompted him to

review the prints prior to being hung. Luhrs dep. 75-

76. He had not previously reviewed any submissions

prior to their display. Luhrs dep. 76. Gurth denies ~

this phone conversation took place. Gurth dep. 59,

83-84.

lle

Hopper visited city hall during the second showing

to get a feel for what would be appropriate. Hopper

dep. 71. Observing nudity, she did not consider her

work to be any more objectionable than what the City

was then displaying. Hopper dep. 71-72, 98.

Hopper told Edmonds her work contained nudity and

Edmonds replied this would not be a problem.

Hopper dep. 86-87.

Rupp was a sculptress. Her work survived on

display for about a week, but complaints prompted

Crutchfield to direct its removal on February 15,

1996. Crutchfield dep. 58, 61. Rupp had three

pieces on display, and the one prompting the

complaints was titled "To the Democrats,

Republicans, and Bipartisans" and depicted a woman

"mooning" her audience.’ Rupp testified that Luhrs

took a close look at her sculpture as she was placing

*The piece was also titled, at various times, "Damn, I'm Stuck" and

"Woman Drinking from a Brook.” Rupp dep. 37-38; Luhrs dep.

56.

12c

it in the showcase and approved its placement. Rupp

dep. 19. Luhrs agrees this occurred, but recalls

"wincing" because he thought it was "right on the

edge." Luhrs dep. 56. When complaints surfaced,

Luhrs relayed them to Crutchfield who directed

removal of the offending piece. It is disputed whether

he directed removal of all three pieces, although only

one had been the subject of complaints. Rupp dep.

140-41.

Some of the complaints centered on sexual

explicitness.* Crutchfield dep. 58-59. Crutchfield

was concerned that the controversy was interfering

with the conduct of city business. Crutchfield dep.

‘City employee Margie Wilson, who lodged complaints, thought the

work had an illusionist quality. It could be seen as a kneeling

woman with outstretched arms. Ex. 3. It could also be seen as a

man bent over a woman with the outstretched arms being those of a

woman laying beneath him. Wilson dep. 39. According to Rupp,

someone's imagination would have to "work overtime" to envision

the piece in that light. Rupp dep. 156.

13c

58. This was the first time the City rejected or

removed an exhibit, although as indicated, there had

been prior complaints and some of the art involved

nudity... Gurth dep. 69-70; Hopper dep. 71-72;

Luhrs dep. 64. Crutchfield felt there was a line out

there somewhere, and the Hopper/Rupp materials

crossed it, notwithstanding that they might be

perfectly acceptable in an art gallery. Crutchfield

dep. 52, 54. According to Luhrs, "I was not crazy

about taking people's artwork down. It was not my

responsibility. It was the Mid Columbia Arts

Council." Luhrs dep.96.

*Proving that art is in the eye of the beholder, Gurth thought the

nudity in the prior shows abstract and understated. Gurth dep. 69-

70. Hopper thought it quite explicit. Hopper dep. 71-72.

Crutchfield was not aware of it at all. Crutchfield dep. 43, 48.

Luhrs was aware of some of it, although not the piece referred to by

Gurth. Luhrs dep. 64. Luhrs did not recall any complaints based

on nudity. Id.

14c

It is undisputed that the City did not have public

guidelines in place drawing the line between the

acceptable and the unacceptable. Luhrs dep. 124-26;

Crutchfield dep. 73-75.

Luhrs claims to have offered to display Hopper's

prints on the second floor where traffic was lighter

and she declined. Luhrs dep. 116-17. Hopper

denies any such offer was made directly to her, but

acknowledges that Luhrs made that suggestion at an

Arts Council meeting. Hopper dec. Whether it was

an offer or a suggestion, the same solution was not

presented to Rupp. Luhrs did offer to allow her to

replace the offending sculpture with a more suitable

piece. Luhrs dep. 117.

Shortly thereafter, the City abandoned the arts

program when controversy flared in the press and

charges of censorship began flying. Crutchfield dep.

112. All artwork came down by March 29, 1996,

prior to completion of the show as scheduled. Ex. 78.

This action followed. Plaintiffs sued the Arts Council

LSc

for breach of contract and the City under the First and

Fourteenth Amendments and 42 U.S.C. § 1983 and

also for breach of contract. After the parties cross-

moved for summary judgment, the Arts Council was

dismissed pursuant to stipulation.

Analysis

(1)__Cross-motions for summary judgment.

(A) Official policy: Municipal liability will be

imposed only if the acts complained of are undertaken

pursuant to official policy or custom. Monell v. Dept.

of Soc. Serv. of City of N.Y., 436 U.S. 658, 690-91,

98 5. Ct. 2018, 2035-36 (1978). It is not necessary

that the policy or custom be reduced to writing and

formally enacted into law. It is enough that action be

endorsed by a policy-maker, and acquiescence may

be sufficient to ratify the subject "policy." J.B. v.

Washington County, 127 F.3d 919, 923-24 (10th Cir.

1997), citing, Pembaur v. City of Cincinnati, 475 U.S.

469, 106 5. Ct. 1292 (1986).

l6c

The City argues that under its council/manager

form of government, the city manager is limited to

administrative functions and cannot create policy

because only the city council can do that. It is

undisputed that issues relative to the arts program

were never formally placed before the council until

litigation was imminent. The City contends it is

entitled to such a ruling as a matter of law, but as a

backup position urges that triable issues of fact

preclude summary judgment in favor of plaintiffs.

The City cites a case on close point. Todd v.

Smith, 305 S.C. 227, 407 S.E.2d 644 (1991), cert.

denied, 502 U.S. 1059, 112 5. Ct. 938 (1992). As

here, the defendant in Todd was a municipality which

allowed a public building to be used to display art.

As here, the city abdicated its role and allowed

content regulation to be overseen by a private arts —

guild. Unlike here, the guild actually did regulate

content and asked one exhibitor to remove a painting

which some might find offensive. When the artist

17c

declined, the city manager stepped in and directed

closure of the entire exhibit.

Todd held the closure did not result from official

policy because the city manager had no authority to

promulgate policy. 305 S.C. at 230-31, 407 S.E.2d at

646-47. For reasons stated in the dissent, Todd is

horrible law and inconsistent with Monell, supra, at

least when read for this broad proposition. 305 S.C.

at 232-35, 407 S.E.2d at 647-49 (Toal, J., dissenting).

If a municipality can escape liability by simply not

submitting an issue to its governing body, the manager

would become a de facto policy maker by default.

Read narrowly, however, Todd may be construed as

standing for the proposition that under the facts before

it, the single isolated act of the city manager did not

rise to the level of a "policy."

The City urges this issue raises questions of fact

because there is less than unanimity among the city

council members as to the scope of Crutchfield's

authority in initiating the arts program. That may be,

18c

but need not be reached. Given the mode of

disposition, it will be assumed for present purposes

that the governing body of the City ratified

Crutchfield’s actions.

(B) City hall as a forum: The parties agree that the

subject works are not obscene and thus entitled to

First Amendment protection. The threshold from

which all else flows is characterizing city hall as a

forum of expression.

The Supreme Court has recognized three

types of forums, whose identification is

necessary before undertaking a First

Amendment analysis. The first type of

forum is the traditional public forum,

such as streets and parks, which "have

immemorially been held in trust for the

use of the public and, time out of mind,

have been used for purposes of

assembly, communicating thoughts

19c

between citizens, and discussing public

questions."’ The second type of forum is

the designated or limited-use public

forum, which "consists of public

property which the State has opened for

use by the public as a place for

expressive activity." Finally, there is all

remaining public property or the

nonpublic forum. Regulation of

traditional public forums and designated

public forums is measured under a strict

scrutiny standard, while regulation of

nonpublic forums "need only be

reasonable, so long as the regulation is

not an effort to suppress the speaker's

activity due to disagreement with the

speaker's view."

20c

Intern. Soc. for Krishna V. City of L.A., 966 F. Supp.

956, 959-60 (C.D. Cal. 1997) (citations omitted).°

Courts are reluctant to find public buildings to be

public forums when operated in a proprietary manner.

see, e.g., International oc. . for

Consciousness v. Lee, 505 U.S. 672, 678, 112 5. Ct.

2701, 2705 (1992) (airport terminal nonpublic

forum); Jacobsen v. Bonine, 123 F.3d 1272, 1274 (9th

Cir. 1997) (interstate rest stop nonpublic forum);

Montere _Dem. Cent. Comm. v. U.S. Postal

Serv., 812 F.2d 1194, 1198 (9th Cir. 1987) (post

office and its environs nonpublic forum), cited with

approval in United States V. Kokinda, 497 U.S. 720,

736, 1105. Ct. 3115, 3125 (1990) (plurality); General

*"Nonpublic forum" is oxymoronic. A forum is "an assembly,

place, radio program, etc. for the discussion of public matters or

current questions." Webster's New World Dictionary 531 (Third

College Ed.). If a forum is not public, it is not a forum either.

Nonetheless, the case law universally employs the term.

ASTER Ne ALY TOOT Oe

2lc

Media Communications, Inc. v. Cohen, 131 F.3d 273,

278-79 (2nd Cir. 1997) (military exchange nonpublic

forum), pet. for cert. filed Mar 16, 1998; Berner v.

Delahanty, 129 F.3d 20, 26 (Ist Cir. 1997)

(courthouse nonpublic forum), cert. denied, a

_»__S8.Ct.__, 1998 WL 38001 (Mar 23, 1998);

Families Achieving Independence and Respect _V.

Nebraska Dept. ocial Services, 111 F.3d 1408,

1419-20 (8th Cir. 1997) (en banc) (lobby of welfare

office nonpublic forum); Claudio V. United States,

836 F. Supp. 1219, 1224-25 (E.D. N.C. 1993)

(federal building/post office/courthouse nonpublic

forum), aff'd mem., 28 F.3d 1208 (4th Cir. 1994).

Simply arraying the authorities is not helpful because

each of the above referenced facilities had discrete

attributes and functions which led to its classification

which are not necessarily relevant here. For example,

a courthouse is nonpublic because of the need to

maintain decorum and an aura of impartiality. Berner,

Supra, 129 F.2d at 26-27. An airport is nonpublic

22c

because its purpose is to move travelers efficiently

and the unbridled exercise of free speech would

impair that mission. Lee, supra, 505 U.S. at 681-83,

112 5. Ct. at 2707-08. Rather than compare

attributes, the safer course is to consider that a

publicly-owned building does not become a public

forum by accident.

The government does not create a public

forum by inaction or by permitting

limited discourse, but only by

intentionally opening a nontraditional

forum for public discourse.

Tucker V. State of Cal. Dept. of Educ., 97 F.3d 1204,

1209 (9th Cir. 1996) (emphasis original), quoting,

Cornelius v. NAACP Legal Detense Fund, 473 U.S.

788, 802, 105 5. Ct. 3439, 3449 (1985).

Governmental intent is critical. "The ‘[mJere

physical characteristics of the property [do not]

dictate forum analysis[.]' Rather, it is the 'location and

purpose’ of the property and the government's

23c

subjective intent in having the property built and

maintained, that is crucial to determining the nature of

the property for forum analysis." Jacobsen, supra,

123 F.3d at 1274, quoting, Kokinda, supra, 497 U.S.

at 728-30, 1105. Ct. at 3120-21.

When a citizen enters city hall to attend a council

meeting, the building is to that extent no doubt a

designated public forum. When council meetings are

in session, the building is being used to further a basic

function of governance with limited citizen

participation. But when someone enters city hall to

pay a water bill, or secure a building permit, or the

like, he or she is not interested in discourse, except to

the extent required to attend to the business at hand.

The record does not reflect that the City intentionally

opened the gallery to the "public as a place for

expressive activity." Krishna, supra, 966 F. Supp. at

®60 (emphasis added). From the City's perspective,

artist participation was by invitation only, and

invitation was based on content. This is permissible.

24c

Initially we note that government

control over non-public fora includes:

[t]he right to make distinctions in

access on the basis of subject matter

and speaker identity. These distinctions

may be impermissible in a public forum

but are inherent and inescapable in the

process of limiting a nonpublic forum to

activities compatible with the intended

purpose of the property. The

touchstone for evaluating these

distinctions is whether they are

reasonable in light of the purpose which

the forum at issue serves.

Monterey Cty., supra, 812 F.2d at 1198, quoting,

e duc. 'n V. Pe ca ; 'n,

460 U.S. 37, 49, 103 S. Ct. 948, 957 (1983); _see also,

General Media Communications, supra, 131 F.3d at

25c

279 ("limitation on speech in a nonpublic forum | may

be content based" [emphasis original]).

The difficulty in analysis is that city officials

delegated their authority to control the use to which

city hall was put to a nongovernmental body and that

body in turn: (1) failed to screen for content

notwithstanding that it announced to everyone other

than plaintiffs it would do so; (2) failed to advise

plaintiffs that restraint was a requirement of

participation; and (3) if plaintiffs are believed,

affirmatively told them to the contrary. The issue

becomes the extent to which the City's conveyance of

authority to anon-governmental entity vitiates its own

intent by default. Luhrs made it clear that

"questionable" or "controversial" work was to be

avoided. When it came to execution, however, the

expectation of "invitation only" turned into a come-

one-come-all affair; not because the City's intent had

changed, but because for whatever reason, the Arts

Council concededly did not follow through on its

26c

announced intention to screen for suitability.

Plaintiff's strongest authority is Henderson V. City

of Murfreesboro, Tenn., 960 F. Supp. 1292 (M.D.

._Tenn. 1997). On the surface, Henderson appears

close on point. In that case, the rotunda of a city hall

was used to display artwork. The city appointed a

review committee which passed on artist's

submissions in accord with defined criteria. The

painting which gave rise to the case was approved

and placed on display. A passer-by took offense at its

sexual content and filed a complaint with the city

attorney. When the city attorney was unable to locate

the city manager, he personally removed the offending

painting.

Henderson held that the city hall, or at least the

portion containing the artwork, was a designated

public forum. 960 F. Supp. at 1297-98. The Court

reasoned that the exhibition was open to all who

could satisfy the criteria, subject matter was not

_ proscribed, and the rotunda was thus a place

27c

designated for public discourse. Id. at 1299.

Moreover, because most of the areas where city

business was conducted were some distance from the

rotunda, it did not qualify as a "workplace." Id. at

1298. City employees had access to the rotunda, but

were not forced to be there.

If Henderson provides the applicable law, the City

is in trouble. Restraints on expression in the limited

forum context must be "narrowly drawn to effectuate

a compelling state interest." Perry, supra, 460 U.S. at

46, 103 5. Ct. at 955. This will virtually always

require an express public set of criteria establishing

the lines. Cinevision Corp. V. City of Burbank, 745

F.2d 560, 571 (9th Cir. 1984), cert. denied, 471 U.S.

1054, 105 5. Ct. 2115 (1985). No public guidelines

were in place here. Crutchfield's decisions were

based on his own subjective perceptions and those of

his employees. The decisions were ad hoc, and in the

case of Rupp, made after her work was initially

approved for display. There is no question but that

28c

the City discriminated based on content. Luhrs said .

so in his letter to plaintiffs dated February 15, 1996.

EX. 14.

However, Henderson is distinguishable in two

respects. First, the city hall in this case is a

workplace. The artwork was displayed on the

corridor walls immediately inside the main entrance.

Second, the defendant in Henderson evidenced a

subjective intent to open up the rotunda as a place of

public expression by operating just as one would

expect a designated forum to be operated. Consistent

with the case law, the city devised public criteria, and

in applying the criteria approved the offending

painting only to be later "overruled" by the city

attorney. "An invitation to display original works of

art with no restriction as to subject matter

demonstrates the government's intent to open the

Rotunda for the purpose of artistic expression within

the guidelines of the art committee's criteria." 960 F.

Supp. at 1299. The city in Henderson went into the

29c

art business with its eyes open. The City in this case

blundered into it with no appreciation of the

magnitude of the undertaking or the legal pitfalls

which inhere in such a project.

Plaintiffs have produced no evidence that either

Crutchfield or Luhrs "intentionally openfed] a

nontraditional forum for public discourse." Tucker,

supra, 97 F.3d at 1209. The only evidence of their

intent is found in their deposition testimony and that

reflects an intention to improve the ambience at city

hall; not to promote free expression. The only two

persons privy to the Luhrs/Gurth discussions agree

that Luhrs was adamant that questionable and

controversial work be avoided. Gurth passed that

caveat on to participating artists except, it appears, to

plaintiffs.

There are issues of fact as to who would exercise

content control, but no issues over whether such

regulation was contemplated. There are also issues of

fact as to why the Arts Council would abandon its

30c

announced intention to exercise content control. If

resolution of these issues went to the City's intent,

trial would be required. However, these issues do not

go to intent, but at most, to the City's negligence in

carrying out its intent. Negligence is not intent and a

designated public forum is not "create[d] by inaction

or by permitting limited discourse." Tucker, supra, 97

F.3d at 1209.

Because city hall was a nonpublic forum, speech

regulation "need only satisfy the requirement of

reasonableness." Lee, supra, 505 U.S. at 683, 112 5.

Ct. at 2708. A "restriction need only be_reasonable;

it need not be the most reasonable or the only

reasonable limitation." Id. (emphasis original, internal

quotation marks and citation omitted). Decisions

have held that art which is merely offensive, and then

only to certain groups, may be removed from a

nonpublic forum for that reason alone. See_Close V.

Lederle, 424 F.2d 988, 990 n.2 (lst Cir.), cert.

‘s

* --

crs

3l1lc

denied, 400 U.S. 903, 91 5. Ct. 141 (1970). One

decision has even held that art may be removed from

a nonpublic forum simply because it is ugly. Serra V.

U.S. General Services Admin., 847 F.2d 1045, 105,1

(2nd Cir. 1988). Other authorities draw a distinction

between removing art (thereby suppressing it) and

relocating it. "Relocation is not suppression, and if

reasonable is not forbidden." Piarowski v. Illinois

Community College, 759 F.2d 625, 630 (7th Cir.),

cert. denied, 474 U.S. 1007, 106 5. Ct. 528 (1985).

Some 120 city employees work at city hall.

Crutchfield dep. 52. They are a captive audience.

Citizens tending to business with the City must visit

city hall. They are a captive audience. Children use

city hall, and not just because youngsters accompany

their parents when tending to city business. The

gymnasium in this former school building has been

preserved as such, and is open to children for

recreational use. Crutchfield dep. 9-10, 51; Wilson

dep. 10. The presence of children standing alone is

32c

reason enough to relocate or remove the artwork at

issue. Board of Educ., Island Trees Etc. V. Pico, 457

U.S. 853, 871, 102 5. Ct. 2799, 2810 (1982)

(plurality); FCC V. Pacifica Foundation, 438 U.S.

726, 749-50, 98 5. Ct. 3026, 3040-41 (1978); see

US. __—s—s t17:—s«SS.—«Ct.. «2329, 2341-42 (1997)

(distinguishing and re-affirming precedent while

striking down the Communications Decency Act of

1996 as unconstitutional).

There appears to be much latitude in exercising

content-based judgment in the nonpublic forum

context, and considerable room for common sense.

See generally, Piarowski, supra. The sensibilities of

rejected artists might on occasion be offended, but no

reason appears why their sensibilities should trump

the sensibilities of hundreds of employees, citizens

and other visitors who come to city hall and use it for

the purpose for which it was intended. These folks

have rights too, one of them being the right not to be

33c

Se a Pg .

subjected to "assault upon individual privacy."_Close,

; supra, 424 F.2d at 990, quoting, Redrup V. New

York, 386 U.S. 767, 769, 87 5. Ct. 1414, 1415

(1967). "Freedom of speech must recognize, at least

within limits, freedom not to listen." Id. at 991.

In hyperconcern with his personal

rights plaintiff would not only regard his

interest in self-expression as more

important then [sic] the interests of his .

unwilling audience, but asks us to add

nearly three weeks of such exposure to

the five days he has already received.

With all respect for the district court,

this is a case that should never have

been brought.

Id.

There is a distinction between what an artist may

create and exhibit free of governmental interference

and what the government is required to exhibit on the

artist's behalf. The City concedes the subject artwork

34c

might be entirely appropriate if displayed in a setting

where people come because they wish to view.

However, the City objects to being placed in a

situation where it must offend its citizens and

employees, and in this contention, the City is in good

company. No less stalwart a defender of the First

Amendment than Justice Douglas had this to say on

the topic.

In asking us to force the system to

accept his message as a vindication of

his constitutional rights, the petitioner

overlooks the constitutional rights of the

commuters. While petitioner clearly has

a right to express his views to those who

wish to listen, he has no right to force

his message upon an audience incapable

of declining to receive it. In my view |

the right of the commuters to be free

from forced intrusions on their privacy

precludes the city from transforming its

35c

vehicles of public transportation into

forums for the dissemination of ideas

Re etn. dane miceaiaianes a

upon this captive audience.

_... "One who tunes in on an

offensive program at home can turn it

off or tune in another station, as he

wishes. One who hears disquieting or

F unpleasant programs in public places,

| such as restaurants, can get up and

leave. But the man on the streetcar has

no choice but to sit and listen, or

perhaps to sit and to try not to listen."

There is no difference when the

message is visual, not auricular. In each

the viewer or listener is captive.

Uke OR PRR NIT

BES se Mae pl

Lehman v. City of Shaker Heights, 418 U.S. 298,

307,945. Ct. 2714, 2719 (1974) (plurality) (Douglas,

36c

J., concurring) (citation omitted);’ see also, Bland v.

Fessler, 88 F.3d 729, 735 (9th Cir.) ("[Speakers have

no right to turn people who are outside of their homes

into a captive audience that is incapable of declining

to receive a message") (citation and internal quotation

marks omitted), cert.denied, U.S.__,1175.Ct.

513 (1996).

The presence of children standing alone would be

enough to justify the City's actions. Pico, supra, 457

U.S. at 871, 102 5. Ct. at 2810; Pacifica, supra, 438

U.S. at 749-50, 98 5. Ct. at 3040-41. So would the

need to protect the "captive audience that is incapable

of declining to receive a message." Bland, supra, 88

Plaintiffs dismiss this passage as just one man's opinion. Lehman

was a plurality decision. "When a fragmented Court decides a case

and no single rationale explaining the result enjoys the assent of five

Justices, the holding of the Court may be viewed as that position

taken by those Members who concurred in the judgments on the

narrowest grounds." Marks V. United States, 430 U.S. 188, 193,97

5. Ct. 990, 993 (1977) (citation and quotation marks omitted).

Justice Douglas wrote the only concurrence.

37c

F.3d at 735. So would the City's justifiable interest

in maintaining the integrity of the workplace and

avoiding the tension, aggravation, irritation and

disruption that citizen and employee complaints

would naturally generate. Taken in the aggregate, it

is not surprising the City took the action it did. It

would be surprising if it had not.

Plaintiffs contend that even if city hall was a

nonpublic forum, the City still cannot engage in

"viewpoint discrimination." This area is in a state of

flux. The most recent word from the Ninth Circuit is

Finley v. National Endowment for t for the Arts, 100 F.3d

671, 681-83 (9th Cir. 1996), aioe and suggestion

for rehearing en banc denied, 112 F.3d 1015 (9th Cir.

1997), cert. granted, US.__, 1185. Ct. 554

(1997). As suggested by the subsequent history, the

final word has yet to be written.

As recognized by Finley, a distinction must be

drawn between public fora (or designated fora), and

nonpublic fora. "[W]hen the government appropriates

38c

public funds to establish a program it is entitled to

define the limits of that program." Id. at 681, quoting,

Rust v. Sullivan, 500 U.S. 173, 200, 111 5. Ct. 1759,

1776 (1991). Exceptions lie where an area constitutes

a "traditional sphere of free expression" or "the

government has declared its intention to ‘encourage a

diversity of views from private speakers.’ Id. at 681-

82 (citations omitted). In those instances, viewpoint

neutrality remains the rule. But neither is found here.

Moreover, “viewpoint” does not really fit these

facts. There was no message conveyed. Hopper had

no preconceived idea what she wished to

communicate when she created

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.