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.

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