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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 951

## 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 +

i
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?

ee

ii
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)

iv

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

Vv

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

vi

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

l

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).

2

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

3

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

4

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.

5

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

6

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

7

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

8

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

9

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,

10

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.

1]

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,

12

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

13

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

14

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

15

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,

16

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.

17

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

la

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NO. 98-35795
CT/AG#: CV-97-00137-FLV
JANETTE HOPPER; SHARON RUPP
Plaintiffs - Appellants
V.
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.

2a

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

3a

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,
V.
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

4a

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

Sa

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

6a

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

Ta

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.

8a

[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

= )

9a

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]

"8

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
I

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

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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

es

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.
II

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

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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

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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

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

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.
V
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.

VI
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).

ee

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2210%3A1. Public record. Not legal advice.