Speech in public spaces takes many forms - it may include street performances, murals or monuments, billboards and advertisements, or graffiti. Public spaces may also be used by others exercising their free expression through protests or demonstrations, or by selling their artwork on the sidewalk. Public art differs from privately displayed artwork by its high visibility and accessibility to larger, more varied audiences. Where art hung in a gallery needs to be proactively sought out, people often involuntarily encounter public art during every day activities, such as commuting to work, visiting the post office, or having lunch in a park.

Public art, by virtue of existing in a public area, is subject to government regulation in ways that privately displayed art is not. Public spaces such as sidewalks, streets, and parks are legally identified as traditional public forums, which means that speech in those areas has heightened constitutional protection compared to other types of public places, such as inside public buildings. The trick with regulation is striking the proper balance between individual free expression rights and maintenance of public welfare and harmony. In order to be constitutionally valid, a regulation of expression in a public space must be viewpoint-neutral, leave adequate alternative avenues of communication, and be narrowly tailored to meet a substantial government interest. Government interests may include public health and safety, historical preservation, and promotion of tourism. Such government regulations of speech are called time, place, and manner restrictions. The best approach may be to facilitate communication and collaboration between community members and artists before a public space is used for artistic expression.

Below are some court cases and additional articles highlighting the types of conflicts that may arise at the intersection of public space and free expression.

» Art Removed From Courthouse Entrance

A painting of peace that was taken down at the Branch Coutny Courthouse has stirred controversy in Coldwater, MI.

» Nude Public Sculpture in Loveland, CO Under Attack

Critics are pushing to have "Triangle," a bronze sculpture by Kirsten Kokkin, moved from its location at a busy roundabout on the eastern edge of Loveland to a park where people can choose whether to look at it. Others want the 7-foot-tall depiction of a nude man and two nude women completely removed from public view.

See NCAC's letter to the editor commenting on the proposed ordinance to allow the city council to overrule the Visual Arts Commission, which oversees the city's public art program.

» Controversy around Judith Baca's Danzas Indigenas in Baldwin Park, CA

In 2005 anti-immigrant groups demanded the removal of a 12-year old public artwork entitled Danzas Indigenas, at a metro station in Baldwin Park, CA. The work was successfully preserved.

» ACLU Says Texas Police Violated Art Gallery Owner's Freedom of Expression

Pilot Point, TX 2003 - A mural depicting the large hand of God pointing to an apple and a nude figure of Eve was targeted by local police officers who threatened to charge the building's owner with violation of a law against corrupting minors by showing them hard-core pornography. The ACLU of Texas filed suit on the building owner's behalf against the city.

» Celli v. City of St. Augustine

214 F. Supp.2d 1255 (M.D. Fla. 2000) - Street artist, Celli, was prohibited from selling his political art and newspaper on the City's sidewalks because of a city ordinance. The court found the ordinance invalid because it was content-based by allowing certain types of material, but not political material, to be sold.

» Tunick v. Safir 228 F.3d 135 (2d Cir. 2000) Safir and the City of New York sought to prevent photographer Spencer Tunick from completing his photo shoot consisting of 75 - 100 nude models on a residential street. The court granted an injunction against Safir and the City because Tunick's photo shoot probably fell within the exception to the state law prohibiting public nudity.

» Bery v. City of New York 97 F.3d 689 (2d Cir. 1996) A group of street vendors challenged the City's General Vendor's Law, claiming the restrictive policies prohibited them from expressing their artistic speech through selling on the sidewalks. The Second Circuit agreed and found that the City's policy was not narrowly tailored to suit the valid state interest of maintaining sidewalk safety and preventing congestion.

» Burke v. City of Charleston 893 F.Supp. 589 (D.S.C. 1995) Muralist Burke's work on the side of a building in the historic district of Charleston was stopped by the city because it violated the regulations the city had set up to preserve the historical nature of the area. The Court found that the regulations were appropriate and Burke had available alternative forums.

» Serra v. U.S. General Services Administration 847 F.2d 1045 (2d Cir. 1988) Artist Serra's site-specific sculpture was removed from its location in a federal office plaza after years of complaints by area employees and residents. The Court found the removal not a violation of Serra's free expression rights, as the work was sold to the GSA, which then "owned" the expression. Additionally, the sculpture was not removed due to any political message.

» Tacynec v. City of Philadelphia 687 F.2d 793 (3d Cir. 1982) Tacynec challenged the City's policy for participating string bands in their Mummers' Parade. The Third Circuit said the validity of the policy would rest upon the motivation for the policy - whether it served a compelling governmental interest or whether it was meant to restrict new, non-traditional string bands from the parade.

Resources

Websites

» Street Arts and Buskers Advocates Web Site A program of the Community Arts Advocates, "a nonprofit organization dedicated to expanding public awareness, participation in and support of the arts through performances and festivals, exhibits and workshops, publications and publicity, educational forums, nonprofit arts management consultation services, and collaborative projects."

Articles

» NCAC Letter to the Tennessee Arts Commission Concerning Their "No Nudes" Policy March 21, 2002 This letter, instigated by an incident surrounding artist Ernie Sandidge, explains the faulty approach of the TAC in banning nude figures from public display.

» Activists Win Billboard Battle, Not Free Expression War by Katherine Stapp Compromise between Project Billboard and Clear Channel was necessary in order to post anti-war messages on Clear Channel's Times Square billboards during the Republican National Convention. Includes other examples of difficulty in true freedom of expression during war times.

» Exhibition of Greek Goddess Cancelled, Then Approved Roseburg, Oregon February 25, 2005 Officials of the Douglas County Museum were planning an exhibition on Hebe, a character of historical significance to the town, until several Douglas County Commissioners ordered the exhibit to be canceled believing it could "drive a wedge" into the commmunity.

» Letter to New York City Parks Department About New Public Art Program Rules January 6, 2005 This letter points out the problems of implementation of the proposed rules on New York's Public Arts Program.