Can You Paint A Slogan On City Streets?

Can You Paint A Slogan On City Streets?

Last summer, street mural painting became a very big legal controversy. Can you paint a popular, but unofficial slogan on city streets? After all, huge “Black Lives Matter” slogans appeared on city streets across the country.

On February 18, 2021, Judge Lorna Schofield of the U.S. District Court for the Southern District of New York handed down a decision in Women for America First v. DeBlasio, which denied a request to paint a mural on a Brooklyn street conveying a different message (“Engaging, Inspiring and Empowering Women to Make a Difference!”) from a recent “Black Lives Matter” mural which had been painted by private citizens, but then “adopted” by New York City’s Mayor Bill DeBlasio. Judge Schofield said that, though the original BLM painters had been private, the Mayor’s adoption of the street painting (and expanding painting to all five boroughs) was an endorsement sufficient to convert the original mural into government speech. “The New York City government preserved the Murals and played a role in the creation of the six later murals.” Slip Op. 3.

But ordinarily, no. And the reason why is complicated, because sometimes the answer is yes. It matters whether you’re asking about sloganeering in the streets or on the streets. And it matters who is doing the painting: private citizens or the city. And it matters if the city adopts the painted slogan, even after the fact, as its own “government speech.”

As the Supreme Court noted in Waters v. Churchill (1994), when the government acts as a sovereign to regulate private speech, it has far less power than when it acts as employer or as speaker, both of which involve its own speech or at least the public perception that it is the government speaking. That is the point of the First Amendment. But the closer speech is to core governmental functions, the more power the government has to regulate it. The classic example of this “speech spectrum” is government employees’ speech: the more the employees’ speech looks like the government’s own speech, the greater the government’s ability to regulate. As the Supreme Court said in 1995 in Rosenberger v. Rector of Univ. of Virginia, “when the State is the speaker, it may make content-based choices.”

So, can anyone paint on a city street? No. Think “in” vs. “on” the street. Streets are traditionally open “public fora,” where speech in the street is expected and protected, as the Supreme Court noted in 2009’s Pleasant Grove City, Utah v. Summum decision. But, the surface of the street is not a public forum. Slick, bright paint on streets can cause accidents and confuse drivers. So, Judge Schofield pointed out, “New York City does not generally permit private citizens to paint on streets open to traffic.”

The plaintiffs contended that allowing the BLM mural to remain on the street turned the street from a non-public to a public forum. But converting a non-traditional forum into a public one requires an intentional act for that purpose. Walker v. Tex. Div., Sons of
Confederate Veterans, Inc.
(2015). New York City did not intentionally convert the street surface into a public forum for slogans. Government’s silence or even some limited disclosure is not enough to convert a forum into an open, public one. And a government adopting, paying for, or endorsing someone else’s speech as the government’s own speech does not convert the forum either (in fact, this type of First Amendment “forum analysis” does not apply to government speech in the first place).

So, do people have a right to force the government to speak their message? They do, but not by painting on public streets. They do it at the ballot box. As the Supreme Court said in Walker, “it is the democratic electoral process that first and foremost provides a check on government speech”, not the First Amendment.

Bottom line: you ordinarily don’t have a right to paint your slogan on the street. That’s for safety reasons. That said, you can paint on a street’s surface, if you can get your friendly government to adopt your slogan as its own. And you do that through the First Amendment’s rights of public policy advocacy, assembly and petition, or the ballot box, not by asking a court to force government speech.

Reviving the Nixon “Enemies List,” Using IRS Form 990, Schedule B

Reviving the Nixon “Enemies List,” Using IRS Form 990, Schedule B

Following discussions with participants in the First Tuesday Lunch Group, a bipartisan discussion group of public policy practitioners, we have revised The Curious History of Schedule B legal analysis published last week into a new one, called “Revising the Nixon ‘Enemies List,’ Using IRS Form 990, Schedule B.” The new analysis is longer and more detailed, with additional discussion of how useful and effective Schedule B to Form 990 actually is. In particular, we have added specific looks at arguments already presented in court by the California Attorney General as justification for demanding that any charity that wishes to operate or raise funds in California reveal its donors.

Some excerpts:

  • Schedule B is one of the simplest tax forms: a list of names, addresses and other details which could identify those who have given large amounts to charities. Schedule B’s content makes it one of the most highly-protected federal tax forms because donor information, “if in the hands of the IRS at all, should be categorically sheltered from disclosure.” The Attorney General does not comply with federal data security requirements and usage restrictions, and so can’t get Schedule B from the IRS; he must ask for it directly from the charity.
  • The charities are challenging the Attorney General’s demands as violating the First Amendment’s freedom of speech and association. They have shown that the Attorney General’s office has a long and sordid history of leaking tax information on the Internet, endangering their donors’ safety and livelihoods.
  • The Attorney General claims to need the Schedule B to enforce California’s laws against fraud and abuse of charitable status because it would be more “efficient.” But the Attorney General did not mention to the lower courts, and the parties did not raise, a December 9, 2019, letter that he and 19 other Attorneys General sent to the IRS commenting on proposed regulations on Schedule B. The Attorneys General Letter indicated that the Attorney General actually had knowledge of, and intentions to continue, use of Schedule B for purposes far different from the limited charitable law enforcement he told the courts was his sole purpose in obtaining the Schedule B forms.
  • Most prominent among those other purposes was to use Schedule B to fight against “dark money” organizations, which, by law, are not charities: “corporations, wealthy individuals, and special interests seek to influence politics without leaving fingerprints. … The revised donor reporting requirements that the IRS now proposes are certain to make federal and state review of this spending far more difficult if not impossible.”
  • In other words, the Attorneys General of several states wanted to use Schedule B as a new kind of “enemies list,” targeting those who, entirely lawfully, want to enjoy the confidentiality promised under federal tax law.
  • Schedule B was a well-intentioned, but ultimately unsuccessful attempt to protect donors from disclosure. A significant number of State Attorneys General have indicated that they view Schedule B not only as a source of taxpayer information that federal law protects from disclosure, but as “a powerful tool” to use as they choose, no matter what federal law forbids. This difference of opinion sets up a variety of constitutional clashes over rights of individuals, organizations, and States themselves, under the First (freedom of speech and association), Fourth (freedom from unreasonable searches and seizures) and Sixteenth (tax) Amendments.
  • Not all these clashes are present in the cases pending before the Supreme Court. The lower courts and the parties have limited their briefings to the First Amendment issue of whether the State can request donor lists knowing that they will inevitably injure donors. The charities’ evidence of harassment and injury is strong, but disputed by the California Attorney General and in the Ninth Circuit Court of Appeals decisions.
  • Like a movie monster rising from the grave, Schedule B is essentially obsolete and unwanted. It injures people and undermines taxpayer confidence that is essential to support government. It is not essential or efficient in regulating charities. It raises unnecessary constitutional questions. More efficient and targeted methods are already available than the upfront collection of thousands of charities’ donors’ information.
  • The Supreme Court should use long-established First Amendment interpretations to help protect charitable donors, the organizations that depend on them, and the interests of the federal tax system in voluntary compliance. Otherwise, “enemies lists” may not only be revived, but will multiply.

To read or download the full analysis, click here:

The Curious History of Schedule B

The Curious History of Schedule B

On January 8, 2021, the Supreme Court of the United States decided to review two cases challenging the California Attorney General’s requirement that any charity seeking to operate in California file an unredacted copy of Schedule B, a simple tax form listing major donors to the organization. The cases, Americans for Prosperity Foundation v. Becerra, No. 19-251, and Thomas More Law Center v. Becerra, No. 19-255, were consolidated and oral arguments may be held this spring or fall. Recently, some articles have appeared that suggest that these cases will dramatically affect campaign finance laws, but that’s a stretch.

The Attorney General requires charities that want to operate in California to file an unredacted copy of Schedule B as part of their annual State applications. Donor information is highly protected under federal law, but the Attorney General demands the form as filed with the IRS. The same information is already filed with California’s Franchise Tax Board, which supervises tax-exempt organizations in California as an attachment to the CA 199 form, California’s annual tax form for tax-exempt organizations, and some organizations voluntarily file their Schedule B instead of a less formal list. The Attorney General does not, however, comply with federal data security requirements and usage restrictions, and so cannot get the information from the Franchise Tax Board.

The charities are challenging the Attorney General’s demands as violating the First Amendment’s freedom of speech and association. They have shown that the Attorney General’s office has a long and sordid history of leaking tax information on the Internet, endangering their donors’ safety and livelihoods. Under unbroken precedent dating back to NAACP v. Alabama, that showing should be enough to protect the donor information. But the Attorney General claims to need the Schedule B to enforce California’s laws against fraud and abuse of charitable status because it would be more “efficient,” and prevailed when the U.S. Court of Appeals for the Ninth Circuit refused to believe the charities’ evidence and the findings of the trial court.

The campaign finance angle is an interesting assertion, since a big part of these cases involves the charities distinguishing themselves from the statutes and judicial interpretations that have evolved from campaign finance litigation. For example, one of the biggest debates in these cases is over the “standard of review,” which tests what the opposing parties have to prove to win. Should that standard be “strict” or merely “exacting?” Traditionally, First Amendment cases have usually involved strict scrutiny, but even First Amendment-related campaign finance cases are now judged by the lower “exacting” standard. The reason is “corruption” or the “appearance of corruption” which PPLI has weighed in on before. The charities now before the Court are not looking to change campaign finance law, but to avoid using the same, lower standard for reviewing their case.

More likely, the articles are referring to the same debate that erupted over changing the IRS regulations that govern Schedule B, which PPLI has also weighed in on. The argument there was that State Attorneys General want to use IRS information to enforce campaign finance laws. In fact, on December 9, 2019, many State Attorneys General sent a letter to the IRS saying exactly that: “The revised donor reporting requirements that the IRS now proposes are certain to make federal and state review of this spending far more difficult if not impossible.” In its final Schedule B regulations on May 20, 2020, the IRS soundly rejected the Attorneys’ General plea (as PPLI had requested), noting that: “Use of returns or return information received from the IRS under these sections for purposes other than those listed above (for example, for the enforcement of campaign finance laws or consumer protection laws) is not consistent with states’ authorized use under sections 6103(d) and 6104(c).”

That didn’t stop the California Attorney General before, and likely won’t now. The Attorney General sought the filed Schedule B directly from the charities, not from the IRS. The IRS’s position is that the federal tax privacy provisions only protect against disclosures by the IRS, not by States demanding them directly from the charities. Some courts have upheld the IRS’s interpretation. But the Supreme Court isn’t bound by those interpretations, and may decide to follow the actual statutory language, which is broader than the IRS view.

Because the parties in these cases haven’t directly raised that interpretation, the Supreme Court likely won’t consider it. But the history of Schedule will likely provide context for the Supreme Court’s consideration. But tying these cases to some dramatic change in campaign finance law is a stretch.

PPLI has prepared a very long (and complicated) summary of the history of Schedule B. UPDATE: This is a new revision of this legal analysis, as of February 3, 2021, based, in part, on comments from and discussions with public policy law practitioners in the First Tuesday Lunch Group. The changes are significant and the document is both longer and more detailed, including analyses of the need for and effectiveness of Schedule B. You can find it here:

In First Amendment Cases, Timing and Precision Matter, Even During A Pandemic

In First Amendment Cases, Timing and Precision Matter, Even During A Pandemic

Shortly before midnight on November 25, a fractured Supreme Court of the United States in Roman Catholic Diocese of Brooklyn v. Cuomo temporarily blocked New York state pandemic rules on attendance at churches and synagogues. New York Governor Andrew Cuomo scoffed at the ruling: “It doesn’t have any practical effects.”

Contrary to Gov. Cuomo’s shrug, the Diocese of Brooklyn decision does have practical effects on government officials who draft pandemic rules and litigants who challenge them. Simply put, both rules and challenges must be as “precise and as narrow as possible.” Because the Supreme Court has just reminded courts to look for that narrow precision.

The First Amendment balances societal needs against free expression rights, even during an emergency. In a crisis, governments want to act quickly and broadly, but the courts are not going to ignore the First Amendment when governments say “trust us.” Timing and precision matter both in drafting the government’s rules and in challenging them.

Or as the Supreme Court majority put it: “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten.” And Justice Kavanaugh pointed out: “judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”

To see how this works, look at three different cases, all involving Free Exercise challenges to pandemic rules: Last May, in South Bay United Pentecostal Church v. Newsom, the Court refused to block California’s rules that prohibited church attendance of more than 100 people. Last week, in Diocese of Brooklyn, the Court blocked similar rules. Three days later, in Spell v. Edwards, Justice Alito, a member of the majority in Diocese of Brooklyn, denied a church’s request to block similar Louisiana rules, without even asking for opposing briefs. Why the difference? Timing and precision in the rules and the challenges.

The basic rule at play in Diocese of Brooklyn is when “the challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they must satisfy ‘strict scrutiny,’ and this means that they must be ‘narrowly tailored’ to serve a ‘compelling’ state interest.” These complex analyses apply differently at different times: early in a crisis, when information is scarce and the need for some action is urgent, the government gets more leeway than later in a crisis when much more is known and interim steps can provide some relief even if a final remedy is not yet available.

That is the difference between Diocese of Brooklyn and other decisions that permitted governments to impose more sweeping restrictions. By now, the religious institutions challenging the rules have had months to comply with changing scientific and medical recommendations, and, according to the trial judge here (whose judgements are not easily deflected at this preliminary stage), have done an exemplary job. The Court simply told government officials that expectations of more careful and precise drafting and enforcement are growing ever stronger. The same evolution has occurred in recent cases involving protests and riots in American cities over the last few months; earlier decisions gave more deference to law enforcement, while later decisions have been more nuanced in applying the First Amendment’s right of peaceable assembly.

That careful level of precision and evidence in First Amendment questions is the principal lesson for rules drafters and challengers alike in Diocese of Brooklyn. Even briefs from the American Medical Association and other groups with statistical projections were not enough to convince the Court that the unrefuted records of plaintiffs’ compliance and lack of infections should be disregarded. And, though New York argued that it had moved those neighborhoods into a less restrictive set of pandemic rules, the state refused to say that it wouldn’t ignore that required level of precision in the future.

So, what is the required level of precision? The first rule is “don’t speculate.” In Federal Election Commission v. McCutcheon, the Court said: “we have never accepted mere conjecture as adequate to carry a First Amendment burden.” That’s hard with a novel virus, but there must be some actual evidence that the speculative justification is soundly based, not too broad, and applicable to each person or entity subject to the proposed rule. And challengers must demonstrate, with a reasonable proffer of proof, that they are outside the justification, but were included anyway.

In other words, not “let us out because we’re religious,” but “let us out because we, specifically, don’t represent the danger you are addressing.” Which was amply demonstrated in Spell v. Edwards, when the Louisiana church unsuccessfully argued an overly-broad legal theory: “The First Amendment places the decision of whether to assemble solely within the jurisdiction of the church, not the State.” Diocese of Brooklyn does not create new exemptions for religious institutions; it simply requires careful consideration of existing and new standards. Even in a pandemic.

As National Review editorialized: “all the Court does is reiterate the law. Americans have a right to worship as they see fit, and the government may encroach on that right only in limited circumstances, which don’t include targeting churches for unjustifiably poor treatment the way Cuomo’s rules do.”

It is possible to draft such precise rules without unduly infringing on constitutional rights. For example, Washington state Governor Jay Inslee recently released a new restriction on medical and dental elective surgeries, which was eight, single-spaced pages long, with numerous provisions tying restrictions to specific local conditions. This rule will likely require onerous legal and medical judgments in fashioning compliance standards, but is also more likely to survive constitutional challenge than New York’s rule that exempted “big box” stores but not synagogues without considering compliance with health rules in those facilities. After Spell v. Edwards, Louisiana Gov. John Bel Edwards issued a statement pointing out how carefully he considered the effect of his proposed rule on churches.

This is not a new requirement or one limited to Free Exercise cases; on Thanksgiving Day, the Third Circuit Court of Appeals rejected the Trump re-election campaign’s challenge to Pennsylvania vote counting methods essentially because of a failure to provide specific evidence. Thus, Diocese of Brooklyn repeats what the Court has long required when governments seek emergency powers that contravene the First Amendment: “if you ask us to trust you in a crisis, we may give you more leeway in your rulemaking and enforcement at the beginning, but be very careful and precise as the crisis proceeds.”