Author: barnabyzall

Public Policy Advocacy Highlights for January 2022

Public Policy Advocacy Highlights for January 2022

[PRELIMINARY NOTE: For more than a decade, the First Tuesday Lunch Group, made up of legal practitioners who are Democrats, Republicans, independents and non-partisans from across the United States, has met monthly to discuss current legal issues in tax-exempt organization, constitutional, and campaign finance law and developments in public advocacy. Participants represent diverse organizations, interests and views spanning the political spectrum – non-partisan, left, right, and center, sometimes in adversarial positions in the legal arena. Yet participants are united in our commitment to the rule of law. These non-partisan discussions help candidates, news media, government officials, and other Americans navigate difficult and complex federal laws.

There is no set FTLG agenda, but each month, a draft of possible topics for discussion, based on highlights of the prior month, is circulated; the actual FTLG discussions generally include only a few of these topics and often several other topics. This post includes only Barnaby Zall’s suggestions for possible topics and highlights, not those of the FTLG itself or its participants. This draft is intended for active FTLG participants, and thus includes abbreviations and references to government agencies or individuals, legal doctrines and terms, and other shorthand phrases or terms.]

IRS Form 1024 must now be submitted electronically: Using Paygov. Reminder: not for c3s or c4s. Form 1024-A, for c4s, must also be submitted electronically.

DCRA Confusion: (a recurring topic) Bill Farah’s question about separate corporate filings of certificate and articles.

New FEC Nominee: Dara Lindenbaum, from Sandler Reiff, will be nominated as Commissioner at the FEC, replacing Steven Walther. Walther has announced he will resign as soon as Lindenbaum is confirmed. Lindenbaum was a law clerk at the FEC for Commissioner Cynthia Bauerly while attending GWU Law School, and was an associate counsel at the Voting Rights Project of the Lawyers’ Committee for Civil Right Under Law. In addition to her election law practice, she also advises non-profit organizations on charitable solicitations, corporate governance issues, securing tax-exempt status with the IRS, and the scope of permissible political activities.

Who Says the FEC Can’t Make A Decision? In MUR 7593, the FEC voted 5-1 to dismiss and close a complaint that Fox News made a prohibited indirect campaign contribution when two of its TV personalities made an appearance onstage during a 2018 campaign rally for Josh Hawley, then a Senate candidate.

Broussard Requests Rulemaking Making Definition of “Earned Income” More Fair: FEC Commissioner Shana Broussard voted against designating VA Disability Benefits as “earned income” for calculating permissible candidate compensation, but also seeks a rulemaking to make the definition more “fair.”

Luke Wachob on How Long It Took FEC to Recognize SuperPACs on its Forms Page: “So the registration process for these newfound [in 2010] political entities, which raise and spend billions of dollars each election cycle, was ultimately developed – in the words of Commissioner Ellen Weintraub at Thursday’s meeting [Jan 13, 2022] – “out of something that Commissioner [Don] McGahn and I scrawled on a napkin in a conference room. … Anyone looking to start a super PAC was left to fill out the regular political action committee registration form, then attach a cover letter stating their intention to operate as an independent expenditure-only committee. It’s almost comical. If you want to start a super PAC, get your stapler ready.” Now there’s an actual form.

DoJ ANPRM on FARA: Reminder: the clock is ticking on sending comments to DoJ on its ANPRM on reforms and changes needed to FARA. Comment period closes on Feb. 11. Only three relatively brief comments have been filed as of Jan. 29.

Breyer Retires: It’s official.

Ted Cruz for Senate Argued on Jan. 19: “Ted Cruz: Litigious hot coffee spiller or civil rights champion?” Media comment on the oral arguments in Cruz for Senate v. FEC focused on “only $10,000” and “obscure arguments,” but significant issues were raised. Chief Justice Roberts, for example, asked “How are you supposed to weigh such imponderables such as the marginal burden on the exercise of First Amendment rights against the marginal assistance in preventing corruption?” Transcript, at 24.

Igor Fruman Sentenced to Year and a Day for Soliciting Foreign Campaign Contributions: Fruman pled guilty.

Washington Supreme Court Sustains $18 Million Fine for Failing to Register and Report Contributions to Oppose Initiative: Washington voters adopted a sweeping regime of registration and reporting that covered both candidates and ballot measures. The Grocery Manufacturers Association (now called the Consumer Brands Association) set up a separate account for contributions against a GMO-labeling initiative, as a means of avoiding disclosing donors. The Washington Supreme Court decided that $18 million – roughly the amount spent against the initiative – was the appropriate fine for failing to register and report the contributions properly. Case is headed for the “other” Supreme Court.

“Fair Notice” Law Found Unconstitutional in Montana: Judge Malloy of the U.S. District Ct for Montana, on summary judgment, found that a law requiring contemporary notice of any ad mentioning, but not endorsing, a candidate was unconstitutional. The Ninth Circuit had held earlier that disclosure laws do not limit speech, but provide more speech. Nat’l Association for Gun Rights v. Mangan, 933 F.3d 1102, 1112 (9th Cir. 2019). But here, citing inter alia, AFPF/TMLC v. Bonta, Judge Malloy found that this was a content-based restriction that was not viewpoint neutral. And, that was a kiss of death.

Judge Rules Connecticut Law Requiring Pre-approved Fundraising Scripts Unconstitutional: Pacific Legal Foundation reports that, not only did Connecticut’s law require pre-registration for fundraisers, but pre-approval of their contacts and their scripts. After AFPF/TMLC v. Bonta, a federal judge enjoined the requirement.

Open Secrets Publishes List of Pending Campaign Finance Legislation: What’s next for campaign finance reform?

A Popular Structure Question to Hold Endowments – Trust or Corporation? Tom Antonucci’s question about pros and cons for using a trust or a corporation to hold a 501(c)(3)’s endowment elicited differing views.

Is Donors’ Threat to Withhold Future Contributions Corruption or Coordination? A lively discussion on the Election Law Blog’s mailing list is sparked by Prof. Eugene Volokh’s question of whether a donors’ letter to Sen. Sinema would be considered quid pro quo corruption, and Prof. Mark Scarberry’s followup asking if it would be coordination if sent by an independent PAC. Spoiler: Consensus that the letter was artfully drawn enough to likely not be either. Meanwhile, on the other hand, The Hill notes that GOP megadonor Ken Langone maxed out to Sen. Manchin after his rejection of Build Back Better.

NPR Raises “Red Flags” About Groups Fundraising to Support Jan. 6 Defendants: Quoting “experts,” NPR explores the Patriot Freedom Project.

New York Sched B Filing NPRM: From Robert Tigner of the Nonprofit Alliance (and a longtime FTLG member): “Courtesy NonProfit Times, last week we learned the NY AG has initiated a rulemaking governing the submission of Schedule B to the Charity Bureau.  The AG, evidently, made no public announcement other than the publication of the proposal in the Dec 1 NYS Register (the relevant text is attached here, if it made it through the web and software traps).  It proposes a redacted Schedule B but, as you can see, there is a catch or two. One obvious question: would the rule, eliciting donated amounts and the donor’s state (only) square with Bonta?  And another: what is the rule supposed to accomplish?  If any of you have a theory, please share.”

Text of proposed rule: Subdivisions (c) and (d) of section 91.5 are amended to read as follows:

(c)(1) CHAR500 (annual filing for charitable organizations) or a successor form, which shall include identifying and contact information, annual report exemption claim information (see subdivision [e] of this section), [and ]information regarding the submission of schedules required under article 7-A and, unless a Schedule B to IRS form 990 of a public charity, with the names and addresses of contributors redacted, is attached pursuant to subdivision (3)(i)(b), a statement of the gross amount of contributions received during the reporting period from individuals and entities residing or domiciled in the state of New York. …

(3) CHAR500 attachments.

(i) All organizations that do not claim annual report exemptions for all laws under which they are registered, as described in subdivision (e) of this section, must include a copy of the following IRS forms with their submission of the CHAR500, regardless of whether such IRS forms are submitted or required to be submitted to the IRS:

(a) a copy of the complete IRS form 990, 990-EZ or 990-PF with all required schedules including a Schedule B, unless exempt from such filing pursuant to subsection (b), and

(b) public charities required to submit Schedule B to the IRS must file either (i) a redacted Schedule B with the Charities Bureau, without the names and street addresses of the donors but including the amounts of donations and the states from which those donations were received during the reporting period, or (ii) a statement of the gross amount of contributions received during the reporting period from individuals and entities residing or domiciled in New York (see section C(1)),

BanPACs Act Draft Leaks: Axios reports a leaked copy of legislation to be proposed by Sens. Ossoff and Kelly called “The Ban Corporate PACs Act,” which, not surprisingly, would ban corporate PACs. Both Senators are up for re-election, and both refused contributions from corporate PACs – but not other PACs.

Calif. Bill Would Suspend Tax-Exemption of Organizations that “[p]romotes, engages in, commits to, supports, or aids insurrection against the United States or any state in the Union, at any time, past or present.”: Nonprofit Times expects the bill, SB 834, to be introduced in February. CalNonprofits Public Policy Director Lucy Salcido says: “They (Senator Wiener and staff) are aware of what the senator describes as ‘threading that needle’ to ensure protected activities aren’t affected by the bill, and they are looking forward to working with us to address our concerns.”

Florida Considers “Personal Privacy Protection” Law for Donors: The proposed law would, according to the Tampa Bay Times, “prohibit government entities from requiring corporations, associations, and nonprofit organizations to provide information about their direct or indirect support to any entity. The public entities would also be barred from publicly releasing the information if they have it.”

538 Says Inexperienced Candidates Winning More: One argument offered by supporters of Citizens United is that it helps challengers and inexperienced candidates, which may not be all puppies and rainbows. The statistics-spouting column 538 reports that “the amount of money spent in politics following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission is likely working in concert with the increased interconnectedness brought about by the internet to collectively boost amateur candidates’ profiles. ‘We don’t think it’s a coincidence that all of this kind of came to a head at the same time,’ said Porter.” 538 says having more inexperienced candidates “may lead to more diversity within Congress, with more women and people of color holding office, as they historically have had more difficulty breaking into the elected offices that have traditionally served as stepping stones to Congress,” but cautions that “if many successful political amateurs are uninterested in governing, Treul and Porter fear Congress will become even more dysfunctional.”

Reading Between the Lines of Public Citizens’ Consultant $1B Double-Dipping Report: Axios reports that Public Citizen “finds extensive overlap in the vendors employed by “regulated” political entities — such as campaigns and party committees — and “unregulated” groups, which include super PACs and 501(c)(4) nonprofits.” The Public Citizen “dual agents” report begins: “Political consulting firms that worked for a candidate or political party and also for an unregulated super PAC or other purportedly independent entity in the same elections (“common vendors”) received $1.4 billion for work in those contests during the past two election cycles.” (Emphasis added.) Probably need to explain how ad-buying works to understand “the scale of the vendor overlap.” As Axios reports: the $1 Billion figure “Much of that was for ad-buying services, meaning the firms didn’t just pocket the funds.”

Public Policy Advocacy Highlights for December 2021

Public Policy Advocacy Highlights for December 2021

[PRELIMINARY NOTE: For more than a decade, the First Tuesday Lunch Group, made up of legal practitioners who are Democrats, Republicans, independents and non-partisans from across the United States, has met monthly to discuss current legal issues in tax-exempt organization, constitutional, and campaign finance law and developments in public advocacy. Participants represent diverse organizations, interests and views spanning the political spectrum – non-partisan, left, right, and center, sometimes in adversarial positions in the legal arena. Yet participants are united in our commitment to the rule of law. These non-partisan discussions help candidates, news media, government officials, and other Americans navigate difficult and complex federal laws.

There is no set FTLG agenda, but each month, a draft of possible topics for discussion, based on highlights of the prior month, is circulated; the actual FTLG discussions generally include only a few of these topics and often several other topics. This post includes only Barnaby Zall’s suggestions for possible topics and highlights, not those of the FTLG itself or its participants. This draft is intended for active FTLG participants, and thus includes abbreviations and references to government agencies or individuals, legal doctrines and terms, and other shorthand phrases or terms.]

DCRA Confusion: Jim Kahl’s question about conflicting information from DCRA about registering foreign corporations from states whose laws differ from D.C.’s. Can foreign corporations register to do business in D.C. with fewer than three directors?

DoJ ANPRM on FARA: Reminder: the clock is ticking on sending comments to DoJ on its ANPRM on reforms and changes needed to FARA.

IRS EO Reminders: Tax-exempt organizations affected by Hurricane Ida have until February 15, 2022 to file various tax and information returns and make tax payments. TEOS is now the only page for Service exempt org info. 1024’s going electronic in 2022. Nice summary from Proskauer on new requirements for LLCs that want c3 status. Announcement 2021-18 revokes 2001 guidance that allowed penalty waivers when payments to management companies were reported on Form 990 rather than reporting the compensation paid to the person(s) who provided services to the tax-exempt organization on behalf of that management company; now everyone must follow the 990 instructions for each type of 990, so that persons who should be listed in the compensation section may be individually listed and not hidden in a blanket payment to a management company.

New FEC Leadership: Long-time FTLG participant Allen Dickerson has been elected Chair for 2022, and Steven Walther was elected Vice-Chair.

Short Codes: No FEC action on whether “short code” texts are public communications (discussed at a recent FTLG lunch). AOR 2021-11.

D.C.D.C. Reverses Earlier Decision and Denies Standing to Challenge FEC Inaction: On Dec. 30, Judge Cooper reconsidered and reversed an earlier decision in CLC v. FEC/Right to Rise Super PAC, No. 20-CV-00730 (CRC), Dec. 30, 2021. The earlier decision in February dismissed Right to Rise’s challenge to the Complainants’ standing, though it did agree with RTR that the Complaint failed to state a claim under the APA. In Thursday’s decision, Judge Cooper “the court will grant RTR’s motion for reconsideration, and, finding that it lacks subject matter jurisdiction, dismiss the case and deny plaintiffs’ motion for a default judgment against the FEC.” Slip op., 1. The dismissal was based on the Plaintiffs’ speculation about whether there was more pre-candidacy announcement “testing the waters” expenditures than were disclosed on the PAC’s initial FEC filing. This is similar to an issue raised in Cruz for Senate v. FEC, No. 21-12: a court cannot “accept[] mere conjecture as adequate to carry a First Amendment burden.” McCutcheon, 572 U.S. at 210.

Removing Redactions Exposes Why FEC Could Not Act: Rick Hasen writes: “After Republican commissioners delayed consideration of the matter, FEC Commissioner Petersen recused himself once he accepted a post-FEC job at Holtzman Vogel, depriving the FEC of a quorum.” Unredacted Giffords v. FEC opinion.

Media Coverage Complaining About Consulting Legal Counsel: As long as we’re talking about Holtzman Vogel Josefiak Torchinsky, the Daily Beast notes the activity of various HVJT heavy-hitters in the Kanye West 2020 campaign for President. Many of us in the FTLG, including Barnaby Zall, have counseled not only Presidential candidates from both parties, but also losers and long-shots, without being called out for it. A more balanced piece on long-time FTLG member Cleta Mitchell in TPM points to her long legal counseling career as a good thing (although it doesn’t mention her background as a Democratic legislator): “But Mitchell also has institutional cred among conservatives that goes back decades, the kind of swing that can land you a post-insurrection seat on a government elections advisory board without much public fuss, even during the Biden administration.”

Supremes Consider Corruption: Briefing is almost complete for Ted Cruz for Senate v. FEC, No. 21-12, to be argued on January 19. The case nominally involves whether a limit on using post-election contributions to repay candidate loans to their campaign committees one of the few remaining provisions of BCRA, but also raises several other questions, including the evidence required to find an “appearance of corruption,” one of the few areas in which First Amendment rights can be limited because they are unpopular. A cert petition was filed in Roberson v. U.S., No. 21-605, asking a similar question with more emphasis on the exempt organization side: “Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action.”

Supreme Court Commission (cont.): Not much media coverage of the concurring reports from the few independent members of the recent Biden Commission on changing the Supreme Court. Prof. Will Baude reprints a couple (limited to 800 words each).

Senators Complain About Conservative Organizations Filing Amicus Briefs: Sens. Whitehouse, Blumenthal and Hirono file “AMICUS Act,” a bill requiring disclosure of donors to organizations filing amicus briefs in the Supreme Court. Meanwhile, Brian Klaas, a professor from University College, London, urges “defund[ing] donors” to “authoritarians.”

Dems and Transparency: Meanwhile, are Dems moving on from “transparency” as a top priority? Rachel Cohen at American Prospect says so. (If you’re paywalled, see these excerpts from Rick Pildes’ blog post at ELB.) “more quietly, leaders in the progressive fundraising world will admit that transparency is just not a serious priority anymore … This isn’t new, and the Democratic Party in particular has been making itself more easily swayed by the whims of the wealthy ever since the early 1980s, when Rep. Tony Coelho took over the Democratic Congressional Campaign Committee and established new direct lines of communication between corporate donors and members of Congress. … As progressive groups grow more dependent on rich donors who’d like to keep their contributions private, liberals find themselves contorting into awkward positions to justify the status quo, insisting groups that are clearly affiliated with the Democratic Party are not, in fact, partisan.” From the other side, is donor privacy ok for Mackenzie Bezos but not for others? An article in City Journal discusses the value of donor privacy.

Cops Surveil Portland Protestors: (should Portland Protestors be a recurring topic?) Is police/FBI surveillance of active protests where violence is taking place a violation of the first Amendment? The New York Times and activists appear to say yes. Asked about FBI agents watching from within a protest in Portland, Oregon, “Mike German, a former FBI special agent who specialized in domestic terrorism and covert operations and is now a fellow at the Brennan Center for Justice, said that such surveillance operations inherently run the risk of violating First Amendment rights.”

Change 1st and 2nd Amendments? In the wake of Justice Kavanaugh’s comments about the “neutrality” of the Court in the abortion cases, others have suggested changes to various parts of the Bill of Rights. A Boston Globe op-ed by Mary Ann Franks, a professor at Univ. of Miami Law School, suggests “explicitly situating individual rights within the framework of ‘domestic tranquility’ and the ‘general welfare’ set out in the Constitution’s preamble” to prevent the First and Second Amendments from “being read in isolation from the Constitution as a whole and from its commitments to equality and the collective good. The First and Second Amendments tend to be interpreted in aggressively individualistic ways that ignore the reality of conflict among competing rights. This in turn allows the most powerful members of society to reap the benefits of these constitutional rights at the expense of vulnerable groups.”

CounterMajoritarianism vs. the Constitution: Dueling professors in the Cal.L.Rev. Franita Tolson explains the dilemma: “Writing about the countermajoritarian difficulty is a rite of passage for constitutional law scholars.” Pam Karlan says “we’re all going to die,” Will Baude says “a feature, not a bug,” and Nick Stephanopoulos says “we can Guarantee [Clause] this problem.” 

Gangs and PACs? Real, Chicago-type organized gangs (in Chicago), running PACs and candidates for office? New book says yep, and Rick Pildes is intrigued.

PPLI and National Taxpayers Union Foundation file Friend of the Court brief asking U.S. Supreme Court to protect privacy for donors to charities

PPLI and National Taxpayers Union Foundation file Friend of the Court brief asking U.S. Supreme Court to protect privacy for donors to charities

On February 26, 2021, the Public Policy Legal Institute and the National Taxpayers Union Foundation filed a friend of the court (amici curiae) brief in the consolidated cases of Americans for Prosperity Foundation v. Becerra, No. 19-251, and Thomas More Legal Center v. Becerra, No. 19-255. Both these cases involve demands by the California Attorney General for an obscure federal tax form listing major donors to charities. The two charities contend that the Attorney General’s demands violate the First Amendment rights of association; the Attorney General contends that he needs to collect the form from all charities that want to operate or fundraise in California in order to find and prosecute those who want to misuse the charities.

The PPLI/NTUF amici brief takes a different approach from most of the briefs filed in this case, which directly discuss the First Amendment issues and precedents. The new brief points out that this case is not just about the First Amendment, but also about the Sixteenth Amendment, which grants government very broad powers to collect income taxes, but must also respect taxpayer privacy. In other words, it’s not just the rights of donors, but also the need for government to protect the American tradition of voluntary tax compliance, which is the highest in the world. One of the reasons President Richard Nixon resigned was his misuse of the Internal Revenue Service; in the wake of Nixon’s “enemies list,” Congress passed strong privacy protections for taxpayers, including donors to charities. Ignoring those privacy protections undercuts taxpayer confidence.

The Attorney General’s plan to use charities’ donor lists to tilt at “dark money” windmills risks slaying the voluntary tax compliance goose that lays the golden eggs

The brief also addresses an over-reach in which the federal government argued that it could withhold First Amendment rights if a “public subsidy” was involved. In these cases, the Attorney General argued that it could require the charities to give up their donors’ names and addresses as a condition of being exempt from taxes. But that position is an overstatement of a long-standing line of “public subsidy” cases, with the most recent case handed down just last year. Only Congress, not the Attorney General, can pass a law requiring such a condition, and then only within specific limits. The “public subsidy” argument does not mean that charities must surrender all constitutional rights in order to get a tax subsidy, and the Attorney General’s demand for donor identification falls far short of the tests used to see if such conditions are constitutional.

The Attorney General should not be able to leverage an arguably legitimate use of Schedule B into a condition on an endless array of constitutional rights

The Summary of Argument from the PPLI/NTUF amici brief says:

These cases involve the First Amendment, but this is not just a First Amendment case. These cases are also, at heart, about taxpayer confidence, and its effect on government and society.

Respondent Attorney General of California, according to a letter dated December 9, 2019 and also signed by 19 other attorneys general, seeks to use charities’ donor information against “corporations, wealthy individuals, and special interests [who] seek to influence politics without leaving fingerprints.” The use of donor lists and other taxpayer information for non-tax purposes is the reason Congress enacted extensive tax privacy provisions after President Nixon’s misuse of the IRS. Ignoring the lessons taught by the federal experience could cause the revival of “enemies lists,” undercut the taxpayer confidence that underlies the world’s highest voluntary tax compliance rate, and reverse long-standing donor privacy rights.

Schedule B to IRS Form 990, the obscure tax form sought here, was never intended to be used to uncover wrongdoing; it was created in 2000 to protect donor information against leaks. It immediately failed, as it leaked again and “opposition researchers” discovered it as a rich source of donor information.

Nor is Schedule B useful for the purposes sought by the Attorney General, compared to the rich data available from Form 990. For twenty years, the IRS has tested Schedule B’s general questions against the more detailed and targeted information obtained on the publicly-available Form 990. The result is that the IRS no longer uses Schedule B. Nor do 47 states. Schedule B simply can’t be used, where Form 990 offers precisely what the IRS and the Attorney General seek. The IRS has been trying to get rid of Schedule B since 2016.

The same is true of any similar use of donor lists in the absence of the type of particularized evidence of wrongdoing the Form 990 was designed to uncover. To find wrongdoing, there are efficient and effective ways of identifying problem areas; Schedule B and other donor lists generally are neither efficient nor effective, especially compared to their propensity to leak. Advance mass collection of donor lists undermines taxpayer confidence that is essential to support government, especially if it is merely politicians tilting ineffectually at campaign finance windmills.

The contention in the amicus brief for the United States that “the disclosure of a group’s donors, when imposed as a condition of administering a voluntary governmental benefit program or similar administrative scheme, is not a compelled disclosure subject to exacting scrutiny or the narrow-tailoring requirement” is an overstatement and a misreading of this Court’s decisions. This Court has held that the condition may not be on the recipient as a whole, but only on a statutorily-defined program. The condition may not prohibit the recipient from conducting its activities using “private” money, and it may not be so burdensome that the organization cannot function. Language that suggests otherwise, such as in Regan v. Taxation With Representation, 461 U.S. 540 (1983), should be clarified. Among other things, this characterization ignores the special role of donor lists, the varied interests underpinning the tax system, and taxpayer confidence.

Finally, the lower court misunderstood how federal tax privacy protections operate and their effect. While the court below believed that the “risk of inadvertent disclosure of any Schedule B information in the future is small,” the Attorney General’s failure to provide even basic protections such as tracking and logging those who accessed the donor information means that the Attorney General wouldn’t even know when the protected information leaked.

This Court long ago established that the First Amendment bars the Attorney General here. The Court should reverse the decision below.

To see a copy of the amici brief, click here:

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.