Q: A recent art exhibit in the lobby of a city hall for the Chinese New Year was removed because it was considered inflammatory. The work in question juxtaposed a portrait of Mao Zedong and George Washington a la Andy Warhol. The other artists whose work appeared in the exhibit took down their work in protest of the removal of the Mao/Washington piece. Was this a violation of the artists’ first amendment rights?
A: Although we cannot advice you on whether removal of one of the art pieces constitutes a violation of the artist’s First Amendment rights, we can give you a general framework for analyzing regulation of speech activity on government property.
The United States Supreme Court in Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37 (1983), announced a three-part framework for determining how First Amendment interests are to be analyzed with respect to government property. Regulation of speech activity on governmental property that has been traditionally open to the public for expressive activity, such as public streets and parks, is examined under strict scrutiny. Id., at 45. Regulation of speech on property that the government has expressly dedicated to speech activity is also examined under strict scrutiny. Id. But regulation of speech activity where the government has not dedicated its property to First Amendment activity is examined only for reasonableness. Id., at 46.
The lobby of a city hall might fall under the third category, property that has not been dedicated to First Amendment activity. Although the lobby is open to the public during business hours, “that fact alone does not establish that such areas must be treated as traditional public for a under First Amendment.” United States v. Kikinda, 487 U.S. 720 (1990).
Moreover, although the government has permitted some speech activity by allowing the art exhibit to be placed in the lobby of the building and may have permitted other speech activities in the past, such limited and selective access does not transform the forum from a nonpublic to a public forum. Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788 (1985) (“Selective access does not transform government property into a public forum”).
Assuming a city hall lobby constitutes a nonpublic forum that has not been dedicated to First Amendment activity, regulation of speech there must meet the least stringent test, that of reasonableness. That is, it must be reasonable and “not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S. at 46. Indeed, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806. “The Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.” Id. at 808. There might be a question as to whether removing the piece because it is considered “inflammatory” constitutes viewpoint discrimination in this situation.