[EDITORS' NOTE: THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

Paul J. Lawrence, Preston, Gates & Ellis, LLP, Seattle, Washington, for the plaintiffs-appellants.

John G. Schultz (argued) and George Fearing, Leavy, Schultz, Davis & Fearing, Kennewick, Washington, for defendant-appellee City of Pasco.

Appeal from the United States District Court for the Eastern District of Washington, Fred Van Sickle, District Judge, Presiding. D.C. No. CV-97-137-FVS.

Before: JAMES R. BROWNING, M. MARGARET MCKEOWN, and RONALD M. GOULD, Circuit Judges.

Opinion by Judge MCKEOWN; Partial Concurrence and Partial Dissent by Judge GOULD

McKEOWN, Circuit Judge:

This case is a study in the politics and law of public art. Janette Hopper and Sharon Rupp are artists whose works were excluded from public display at the Pasco City Hall Gallery in Pasco, Washington, because city officials deemed their art too "controversial." As the district court put it: "The gist of the case is that plaintiffs were invited to display their work at city hall, and then summarily disinvited when their submissions provoked controversy." The parties agree that the art is not obscene or pornographic. Instead, the case boils down to a matter of taste and perception. Hopper and Rupp filed suit against the City of Pasco ("Pasco") under 42 U.S.C. § 1983 for violation of their First Amendment rights. The district court granted Pasco's motion for summary judgment, and denied Hopper and Rupp's motion for partial summary judgment, holding that the city hall is a non-public forum and that Pasco's decision to exclude their works was reasonable.

We hold that Pasco violated the artists' First Amendment rights by creating a designated public forum and then excluding their artwork without a compelling governmental interest. Therefore, we reverse the district court's grant of summary judgment for Pasco, reverse the district court's denial of Hopper and Rupp's motion for partial summary judgment, and remand for further proceedings.

I. BACKGROUND AND PROCEDURAL HISTORY

In 1994, Pasco remodeled an abandoned school building to create a new city hall. Faced with an expanse of barren walls, Gary Crutchfield, the City Manager, and his administrative assistant, Kurt Luhrs, decided to invite local artists to display their works in the public hallways. Rather than expend limited resources to have the city administer an arts program, Crutchfield and Luhrs commissioned the Arts Council, a private organization, to manage the program for $500 a quarter, for at least one year. According to their agreement, each quarter the Arts Council would make arrangements to exhibit artwork, provide hanging supplies, design and mount the exhibit, publish and mail a flyer to announce the exhibit, and issue press notices. If the program proved successful, Crutchfield planned to seek permanent funding from the City Council.

At the outset, Luhrs and Crutchfield sought to avoid controversy. Indeed, an uncontroversial program was a prerequisite, in their view, to eventually obtaining permanent funding from the City Council. Luhrs made this clear in the following letter to Barbara Gurth, Director of the Arts Council:

Following our conversation this morning, I felt it was important to provide you with some assurances regarding the city's commitment to developing an art gallery in the new city hall. The City Manager and I are very excited about this program and feel that it will certainly benefit Pasco residents as well as regional artists.

In order to develop a broad base of support, we felt it would be advantageous to present a "demonstration project" for the council and citizens to appreciate. This would be the most effective way to garner the support needed for an annual or long term commitment, prior to bringing the issue into the public forum at a council meeting. The logic being that if you can see what we are talking about, you can appreciate the value of it to the community as a whole.

During our conversation I got the impression that your board felt that our approach may not be a commitment to the long term management of such a project. This is far from the case. Both Gary and I feel that this approach will ensure support when we bring this item to council in a public meeting. Personally, my greatest fear is bringing such a program to council and having various citizens with a conservative "bent" raise issues that have caused trouble for the National Endowment for the Arts, i.e. offensive or politically motivated art. Through our discussions, I feel assured that the Arts Council will not use the City Hall Gallery as a venue for controversy. Nevertheless, without a demonstration, I feel that the ungrounded fears of a few citizens would ruin this great opportunity for introducing the arts to our citizens.

In conclusion, please assure your board that the City of Pasco is very interested in a long term relationship. We are willing to pay for the reasonable costs to plan and develop this show on its own, should the cost exceed the average $500 per quarter.

(Emphasis added).

Likewise, in an initial notice to announce the arts program and to invite submissions, Gurth repeated Luhrs' admonition:

Requirements for acceptance: Artworks will not be jured [sic] in the usual sense, but all works will be screened for content and professional presentation.

Subject matter: Wide open, but with the restraints that would be accepted with a public arts project paid for with public money. To offer a quote from a city official's letter regarding this project ". . . my greatest fear is . . . having various citizens . . . raise issues that have caused trouble for the National Endowment for the Arts, i.e., offensive or politically motivated art. Through our discussions I feel assured that the Arts Council will not use the City Hall Gallery as a venue for controversy."

Indeed, the Arts Council will not. We have worked for five years to bring the cities on board for the arts, we will not jeopardize our progress. Additionally, I do not think that regional art in this area presents a problem in this regard, but the Council will reserve the right to reject a subject matter that the committee feels may present a problem for a conservative public sector. . . .

(Emphasis added).

Despite these admonitions, the arts program was run without any pre-screening process, and the city provided no further definition or guidance as to what kind of work would be considered inappropriate. There was no selection process to monitor quality, content, or controversy. As a result, the Arts Council rejected no artwork during the entire length of the program, which included three separate exhibits that ran from October 1995 through March 1996. According to Gurth's deposition testimony:

Gurth: We didn't select the artists. We did not pass any qualitative judgment on anybody, or the work, either. We just simply said:

These are the people who have agreed to hang this month and we can take this many. So it wasn't a selection process. It wasn't a jurying process at all.

Q: How did you decide who would be, for lack of a better word, chosen, as opposed to selected like a jury process?

Gurth: They chose themselves. This is a small area and there aren't that many practicing artists that work. So the question with this project from its inception was always how long will we sustain it. . . . So it was never a question of selecting anybody. It was just simply these people coming forward and saying we would like to hang this month and we took them. . . .

Q: Did Mr. Luhrs give you a definition or an understanding at this particular point of what he considered to be objectionable art?

Gurth: No, we never discussed that.

Nor did the city review works prior to their placement in the gallery. Instead, the artist simply provided a list of works to be included and signed a contract with the Arts Council agreeing to leave the works up for the full three months of the exhibit and to give the Arts Council a twenty percent commission on any pieces purchased.

Although it is undisputed that no one pre-screened or otherwise rejected art prior to the exclusion of the works by Hopper and Rupp, there is conflicting evidence as to the reason for failure to pre-screen. Gurth testified that it "was always understood" that the city had the ultimate say as to what kind of art would be displayed. But Crutchfield assumed the Arts Council would screen for content, and Luhrs testified that he expected and trusted Gurth to make sure that no "offensive or politically-motivated art" would be shown because "she knew the artists in the region and she knew who to invite and . . . who not to invite."

The first two exhibits (by artists other than Hopper and Rupp) were well received, but not without controversy. One piece, a large sculpture referred to alternately as "After the Famine" and "Starving Man," received a number of complaints but was not removed. The sculpture depicted an emaciated, "dark complected" man and was placed in front of the Housing and Support Services Office. One of the employees who worked in that office complained that a starving man "didn't send a good message," and wanted it removed. Others thought it was ugly, and in a newspaper article Luhrs stated that "Some people saw racial issues, some saw gender issues, some just didn't think it was art." Although Luhrs brought the complaints to Crutchfield's attention, the piece remained for the full length of the exhibit. The first two exhibits also included works containing nudity, although there were apparently no complaints and certainly no efforts to exclude the works from the exhibition.

Unlike most of the artists who provided works for the Pasco City Hall Gallery, neither Hopper nor Rupp received the initial notice sent by Gurth. Rather, both were independently solicited by the Arts Council to display their art in the third exhibit, which ran from February to April 1996. Each signed the standard contract with the Arts Council.

Rupp agreed to show three small bronze sculptures. The first, entitled "Working it Out," depicts a woman struggling with a large box on her head. The second sculpture, entitled "Orchid" or "Retaliation," is a floral piece. Her third sculpture, which was the source of the controversy, is entitled "To the Democrats, Republicans and Bipartisans," "Damn, I'm Stuck," or "A Woman Drinking from A Brook." It depicts a large, nude, headless woman, either lying or standing against a flat surface. Her naked back side faces the viewer. All three works were displayed in a glass case on the main floor of City Hall for a single week in February 1996.

Hopper also signed a contract for the third exhibit, agreeing to show a series of ten linoleum prints entitled "Adam and Eve." The prints depicted a naked couple (in silhouette and outline form) in a variety of landscapes and scenes from post-World War II Germany. Although none of the prints depict explicit sexual activity, in two the couple is kissing, and in several they are embracing. At the time she was contacted about displaying her work, Hopper informed a representative of the Arts Council that her work contained nudity. The representative assured her that nudity would not be a problem, however, given that previous exhibitions at the gallery contained nudity. Two of the rejected pieces were also on display at the Portland Art Museum.

Both artists' works caused controversy. Luhrs received complaints about "To the Democrats, Republicans and Bipartisans" soon after the display went up. Some viewed the sculpture as depicting the woman in a "sexual position" or as depicting a "sexual act;" others simply thought it "offensive and disgusting," or "derogatory to women." After discussing the matter with Crutchfield, Luhrs ordered the Arts Council to remove all three sculptures from the display case. In a letter sent shortly after the incident, Luhrs told Rupp:

The city's art gallery project is a voluntary effort on the part of the City of Pasco to provide a venue for artists to display their work. Our city administration firmly believes that this program is a great service to our community and to the arts community in general. Nevertheless, we are somewhat limited in the subject matter which we can display. We firmly believe that this program should remain out of the political realm. Displaying art which could be misconstrued by activists as "sexual" or "prurient," will make the decision whether to maintain the program a political one, thereby endangering the entire program. For this reason we must be sensitive to art work presented for the entire program. This process should have occurred prior to you committing your art to the display. (emphasis in original).

Hopper's prints were never even displayed. After Hopper delivered her prints, but prior to their hanging, Luhrs examined them and determined that some were potentially controversial or political because the couple was depicted nude in public, and public nudity is illegal in Pasco. Over the next few days he showed the prints to several City Hall employees in order to get their opinions. The employees found some of the prints "offensive" and "sexually suggestive." In view of these assessments, Luhrs and Crutchfield decided not to display any of the prints, and Hopper received the same letter Luhrs had sent to Rupp.

Luhrs acknowledged that the prior exhibits included works containing nudity. When asked to explain the apparent inconsistency in displaying those works in the Gallery but barring Rupp and Hopper's works, Luhrs shrugged it off, saying that he did not review all of the previous works. Shortly after the works were excluded from the Gallery, Crutchfield terminated the arts program altogether, and Hopper and Rupp filed this action. On cross-motions for summary judgment, the district court held that Pasco City Hall is a nonpublic forum, and that Hopper and Rupp produced no evidence that the city intentionally created a forum for public expression by creating the Gallery. The court placed special emphasis on the city's expressed desire to avoid controversial works as proof that it did not intend to open its halls indiscriminately to public expression. Thus, although the court agreed that "[w]hen it came to execution . . . the expectation of `invitation only' turned into a come-one-come-all affair," it reasoned that Pasco's failure to screen the art did not belie its stated intent to restrict access. The court declined to decide whether the arts program was the product of a municipal policy for the purpose of establishing Pasco's liability under Monell v. Department of Social Services, 436 U.S. 658 (1978).

II. STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. See Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999), cert. denied, 528 U.S. 952 (1999). Our review is governed by the same standard applied by the trial court under Federal Rule of Civil Procedure 56(c). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id.

III. ANALYSIS

A. First Amendment Violation

1. Categories of Fora

The Supreme Court instructs us that, in assessing a First Amendment claim for speech on government property,"we must identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic." Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797 (1985). If the forum is public, "speakers can be excluded . . . only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Id. at 800. If, on the other hand, the forum is non-public, the government is free to restrict access "as long as the restrictions are `reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.'" Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 (1983)).

Thus, the two main categories of fora are public (where strict scrutiny applies) and non-public (where a more lenient "reasonableness" standard governs). This does not, however, exhaust the universe of categories. Rather, "Forum analysis divides government property into three categories: public fora, designated public fora, and nonpublic fora." DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 964 (9th Cir. 1999), cert. denied, 120 S.Ct. 1674 (2000) (quoting Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th Cir. 1998)). A designated public forum exists where "the government intentionally opens up a nontraditional forum for public discourse." Id. "Restrictions on expressive activity in designated public fora are subject to the same limitations that govern a traditional public forum," i.e., strict scrutiny. Id. at 964-965 (citing International Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992)).

The designated public forum has been the source of much confusion. As this court has put it, with considerable understatement, "The contours of the terms `designated public forum' and `limited public forum' have not always been clear." DiLoreto, 196 F.3d at 965 n. 4. Some courts and commentators refer to a "designated public forum "as a "limited public forum" and use the terms interchangeably. But they are not the same, at least not in this circuit. Rather, a limited public forum is a sub-category of a designated public forum that "refer[s] to a type of nonpublic forum that the government has intentionally opened to certain groups or to certain Topics." Id. at 965. "In a limited public forum, restrictions that are viewpoint neutral and reasonable in light of the purpose served by the forum are permissible." Id. (citing Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 829 (1995); Lamb's Chapel v. Center Moriches Union Free Sch., 508 U.S. 384, 392-93 (1993)).

In other words, the fact that the government has opened a nonpublic forum to expressive activity does not determine whether we must apply strict scrutiny or the lower reasonableness standard. Rather, we must examine the terms on which the forum operates to determine whether it is a designated public forum or a limited public forum. If a forum is a "designated public forum," we apply strict scrutiny. But if it is merely a "limited public forum," then we apply the reasonableness test. See DiLoreto, 196 F.3d at 965 ("[F]irst we must determine whether the fence was a designated public forum subject to heightened scrutiny or a limited public forum subject to a reasonableness standard.").

2. Designated Public Forum Versus Limited Public Forum

Here, then, our initial task is to determine whether the Pasco City Hall Gallery constituted a designated public forum or a limited public forum. If we classify the Gallery as a designated public forum, we must decide whether the city's decision to exclude plaintiffs' works was justified by a compelling interest. If, on the other hand, we determine that the Gallery is a limited public forum, we need only decide whether the exclusion was reasonable and viewpoint-neutral.

As the Supreme Court observed in Cornelius, government intent is the essential question in determining whether a designated public forum has been established:

The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse. Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government's intent.

473 U.S. at 802, 105 S.Ct. 3439 (emphasis added) (citing Perry, 460 U.S. at 46, 103 S.Ct. 948).

The "policy" and "practice" inquiries are intimately linked in the sense that an abstract policy statement purporting to restrict access to a forum is not enough. What matters is what the government actually does — specifically, whether it consistently enforces the restrictions on use of the forum that it adopted. Thus in Cornelius, where the Court held that a federal fundraising drive was not a designated public forum, the Court emphasized both the existence of a policy and its consistent application:

The Government's consistent policy has been to limit participation in the [fundraising drive] to "appropriate" voluntary agencies and to require agencies seeking admission to obtain permission from federal and local Campaign officials. Although the record does not show how many organizations have been denied permission throughout the 24-year history of the [fundraising drive], there is no evidence suggesting that the granting of the requisite permission is merely ministerial. The Civil Service Commission . . . developed extensive admission criteria to limit access to the Campaign to those organizations considered appropriate. Such selective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum.

473 U.S. at 804-05 (citations omitted); see also Perry, 460 U.S. at 47 (no designated public forum in a public school's internal mail system where the regular practice was to require permission from the individual school principal before access to the system was granted, and where permission had not been granted "as a matter of course to all who [sought] to distribute material"); Lehman v. City of Shaker Heights, 418 U.S. 298, 302-304 (1974) (no designated public forum in advertising space on city buses where a city management contract required control over subject matter of displays, and such control was consistently exercised for more than twenty-five years); Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976 (9th Cir. 1998) ("[A] review of the city's standards and practices indicates that the city has not opened a public forum [for ads on its bus panels]. The city has consistently restricted political and religious advertising"; upholding the exclusion of a religious anti-abortion ad), cert. denied, 526 U.S. 1131 (1999).

Thus, consistency in application is the hallmark of any policy designed to preserve the non-public status of a forum. A policy purporting to keep a forum closed (or open to expression only on certain subjects) is no policy at all for purposes of public forum analysis if, in practice, it is not enforced or if exceptions are haphazardly permitted. See Grace Bible Fellowship, Inc. v. Maine Sch. Admin. Dist. No. 5, 941 F.2d 45, 47 (1st Cir. 1991) (in public forum analysis, "actual practice speaks louder than words").

Christ's Bride Ministries, Inc. v. SEPTA, 148 F.3d 242 (3d Cir. 1998), cert. denied, 525 U.S. 1068 (1999), is especially instructive in this regard. There, the Third Circuit considered a regional transit authority's decision to remove a poster ad stating that "Women Who Choose Abortion Suffer More & Deadlier Breast Cancer." Id., 148 F.3d at 244. The ad was removed when the transit authority received a letter in which the Assistant Secretary of Health in the United States Department of Health and Human Services stated that the ad was misleading and did not accurately reflect the weight of scientific evidence. See id. at 245. The contract for the ad provided that the transit authority reserved the right to remove any ads it deemed "objectionable." Id. at 250-51. The court nevertheless rejected the transit authority's argument that,"because it retained the sole discretion to reject or to remove any advertisement that it deems objectionable, it did not create a public forum of any sort" in transit system advertising space. Id. at 251.

The court reached this conclusion after a careful review of the transit authority's past practice with respect to advertising, noting that it had accepted "a broad range of advertisements for display," ranging from religious and political messages to explicit ads regarding safe sex, abstinence, and AIDS. Id. The transit authority had even allowed two ads favoring abortion rights. Id. at 251-52. On only three prior occasions had the transit authority requested advertisers to modify their ads. Id. at 252. At least in part because of the transit authority's "practice of permitting virtually unlimited access to the forum," the court held that the ad space qualified as a designated public forum. Id. Indeed, the court held that the transit authority's long practice of allowing ads on controversial subjects "as a `matter of course,'" id. at 254, trumped the general rule that no public forum is created when the government requires speakers to obtain permission before engaging in expressive activity in the forum. Id. at 252-55.

The Christ's Bride court followed a Seventh Circuit decision reaching a similar conclusion with respect to advertising space managed by Chicago's transit authority. In Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985), the transit authority refused to lease ad space to Planned Parenthood for abortion-related displays. Other than a "general contractual directive . . . to refuse vulgar, immoral, or disreputable advertising," the court found that the transit authority maintained no policy or system of control over the ads it accepted and that it "ha[d] allowed its advertising space to be used for a wide variety of commercial, public-service, public-issue, and political ads." 767 F.2d at 1232-33. Under these circumstances, the court held that the advertising space was a designated public forum. Other courts have held likewise. See, e.g., United Food & Commercial Workers Union Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 353 (6th Cir. 1998) (following Christ's Bride and noting that "[w]e . . . must closely examine whether in practice [the transit authority] has consistently enforced its written policy in order to satisfy ourselves that [its] stated policy represents its actual policy"); Air Line Pilots Ass'n Int'l v. Dept. of Aviation, 45 F.3d 1144, 1153 (7th Cir. 1995) ("The government may not `create' a policy to implement its newly discovered desire to suppress a particular message. Neither may the government invoke an otherwise unenforced policy to justify that suppression. Therefore, the government's stated policy, without more, is not dispositive with respect to the government's intent in a given forum.") (emphasis added) (citations omitted).

Courts have also been reluctant to accept policies based on subjective or overly general criteria. "`[S]tandards for inclusion and exclusion' in a limited public forum `must be unambiguous and definite' if the `concept of a designated public forum is to retain any vitality whatever.'" Christ's Bride, 148 F.3d at 251 (quoting Gregoire v. Centennial Sch. Distr., 907 F.2d 1366, 1375 (3d Cir. 1990). Absent objective standards, government officials may use their discretion to interpret the policy as a pretext for censorship. See Board of Educ. v. Mergens, 496 U.S. 226, 244-45 (1990) (generalized definition of permissible content poses risk of arbitrary application); Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 845-46 (6th Cir. 2000) ("broad discretion [given] to city officials [raises] possibility of discriminatory application of the policy based on viewpoint"); Cinevision Corp. v. City of Burbank, 745 F.2d at 560 (9th Cir. 1984) (vague standard has "potential for abuse"); Gregoire, 907 F.2d at 1374-75 ("virtually unlimited discretion" granted to city officials raises danger of arbitrary application); see also City of Lakewood v. Plain Dealer Publ. Co., 486 U.S. 750, 758-59 (1988) (absence of express standards in licensing context raises dual threat of biased administration of policy and self-censorship by licensees). Therefore, "the more subjective the standard used, the more likely that the category will not meet the requirements of the first amendment." Cinevision, 745 F.2d at 575; see also Christ's Bride, 148 F.3d at 251 (suppression of speech under defective standard requires closer scrutiny).

In addition to these factors, courts examine the selectivity with which the forum was open to particular forms of expression. In general, the more restrictive the criteria for admission and the more administrative control over access, the less likely a forum will be deemed public. See Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679 (1998) (distinguishing the government's decision to "make[] its property generally available to a certain class of speakers[from a situation] when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, `obtain permission' to use it") (internal quotations and citation omitted); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 570 (9th Cir. 1984) ("[B]y granting [a private promoter] access to the[municipal amphitheater] for the presentation of music by a variety of performers, the City transformed publicly owned property into a public forum for expressive activity, even if the expressive activity is promoted by a single entity.").

Finally, courts consider whether the expressive activity is consistent with the principal function of the forum. Cornelius, 473 U.S. at 804. This inquiry focuses on the specific space to which the would-be speaker seeks access, but should also take into account the context of the property as a whole. DiLoreto, 196 F.3d at 968.

It is undisputed that Pasco opened its display space to expressive activity by retaining the Arts Council to manage a gallery with exhibitions by local artists. This evinces an intent to create a designated public forum. Pasco argues, however, that its stated policy — memorialized in the agreement with the Arts Council demonstrates that it did not intend to establish a public forum, but only to display noncontroversial art. Put otherwise, the city contends that it opened only a limited (rather than a designated) public forum. This argument is unpersuasive.

The city's so-called policy of non-controversy became no policy at all because it was not consistently enforced and because it lacked any definite standards. Prior to the exclusion of the works at issue here, the city neither pre-screened submitted works, nor exercised its asserted right to exclude works. Indeed, controversial artwork was exhibited despite complaints from citizens and employees. Given the undisputed facts in the record concerning the selection and screening process for art to be displayed at City Hall (or, rather, the lack thereof), we conclude that the city retained no substantive control over the content of the arts program. Both Luhrs and Crutchfield testified that they left content screening to the Arts Council, and Luhrs' letter to Gurth confirms that he expected her to ensure the propriety of the exhibits. The record is clear that the Arts Council itself undertook no screening and, that it affirmatively solicited the purportedly controversial works at issue here. Combined with the fact that the city established no specific criteria for exclusion of art from the program, we are bound to conclude that the city opened its halls to expressive activity and thereby created a designated public forum in the art gallery. Because the city's decision to exclude the works by Hooper and Rupp was unjustified by any compelling state interest (a subject discussed more fully at section III(a)(3) infra), we conclude that the district court erred in granting summary judgment to Pasco.

Turning to the artists' cross-motion for partial summary judgment, we are obliged to view the evidence in the light most favorable to the city. We must therefore assume that, as a matter of policy, Pasco expressly retained a "final say," or discretion to exclude "controversial" works, and that, at least at the outset, Crutchfield and Luhrs intended the exhibit to be limited to uncontroversial works (whatever that may mean). Pasco argues that this proves that it did not intend to create a public forum, or alternatively, that any forum created was expressly limited to uncontroversial art. Under the authorities discussed above, however, Pasco cannot hide behind its "policy" if that policy is inconsistent with the city's actual practice. Under the facts presented, we find inconsistency as a matter of law.

Certain facts are undisputed. First, the city concedes that it exerted little or no substantive control over the selection and content of the art work displayed at City Hall. The arts program was open to art work of any form, and there was no prescreening of exhibits prior to Hopper's submission. Therefore, the basic structure of Pasco's arts program suggests an intent to permit unrestricted expression. Second, despite its stated policy of avoiding "controversial art," Pasco never established criteria by which to assess whether or not a work would fall within the policy. Instead, application of the policy was left entirely to the discretion of city administrators.

The potential for abuse of such unbounded discretion is heightened by the inherently subjective nature of the standard itself. A ban on "controversial art" may all too easily lend itself to viewpoint discrimination, a practice forbidden even in limited public fora. See Cohen v. California, 403 U.S. 15, 25 (1971) (describing the inability of government officials to make principled distinctions on matters of taste and warning that censorship on this basis offers "a convenient guise for banning the expression of unpopular views"); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988) (permitting civil liability for "outrageous" social commentary invites viewpoint discrimination); see also Federal Communications Corp. v. Pacifica Foundation, 438 U.S. 726, 745-46 (1978) ("[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it . . . . government must remain neutral in the marketplace of ideas."). Not only was Pasco's policy intrinsically flawed, its enforcement of the policy was, in practice, contingent upon the subjective reaction of viewers of the artwork, as perceived by the city management. Such "censorship by public opinion" only adds to the risk of constitutional impropriety. Cf. Texas v. Johnson, 491 U.S. 397, 408-409 (1989) (invalidating ban on flag-burning where offense hinges on audience reaction).

This is not to say that community standards of decency have no place in the regulation of government property; our cases merely insist that such standards be reduced to objective criteria set out in advance. In the absence of such guideposts, we must scrutinize Pasco's actual practice all the more closely for apparent inconsistency or abuse in enforcing the policy.

A review of the art work displayed during Pasco's shortlived series of exhibits demonstrates that the concerns articulated in the preceding paragraphs are by no means hypothetical. It is undisputed that works involving nudity were displayed in earlier exhibitions without apparent negative comment. Pasco's post-hoc distinction between the "abstracted" depictions of nudity in these works and the perceived "sexual" nature of Hopper and Rupp's submissions does not erase the suspicion that a double-standard might have been applied. Cf. Lakewood, 486 U.S. at 758 (discussing the potential for administrators to concoct post-hoc rationalizations for inconsistent treatment in the absence of substantive standards).

Such suspicion is brought into sharp relief by the city's handling of the "Starving Man" sculpture. It is undisputed that this work actually did generate negative feedback and, thus, would appear to fall, at least prima facie, within the terms of the prohibition on "controversial" art work. Both the city and dissent cite testimony that the controversy surrounding the "Starving Man" sculpture never rose to the level created by the work of Hopper and Rupp and thus cannot be taken as evidence of any genuine inconsistency in Pasco's enforcement of its policy. Given the posture of summary judgment, we must accept such testimony unchallenged. Even so, Pasco has failed to articulate any basis to validate its asserted distinction in the degree of "controversialness" separating the respective art work other than the entirely subjective and ad hoc reactions of the limited subset of viewers whose opinions came to the attention of city administrators. To remand for trial of this issue under such a standard would only yield a verdict as arbitrary as the standard itself. Moreover, to sanction the suppression of speech on this basis would be to abdicate meaningful judicial review. See id. (without express standards, "the use of shifting or illegitimate criteria are far too easy.").

Having effectively opened its doors to all comers, subject only a standardless standard, Pasco has failed to exercise the clear and consistent control over the exhibits in city hall that our cases require to maintain a limited public forum. Its stated policy is belied by "objective indicia" of a contrary intent. Paulsen v. County of Nassau, 925 F.2d 65, 70 (2d Cir. 1991).

Other factors considered by courts in designated public forum analysis also favor the artists here. Unlike cases involving commercial speech, the purpose of the exhibitions here was purely aesthetic and expressive — the city hoped to promote and display the work of local artists as a means of beautifying the new city hall. Moreover, the nature of the property is consistent with the expressive activity at issue here. The city created the exhibition program and invited the participation of local artists because it hoped to increase the aesthetic appeal of the new city hall by adding art. Although there is some evidence that unrestricted artist expression could be deemed inappropriate for certain users of city hall, the dissent concedes that "there is no evidence that the displays, even if controversial, would have directly affected the running of the city government." Nor is this a case involving advertising or commercial speech, where the government is engaged in commerce and where allowing certain expressive activity might harm advertising sales or tarnish business reputation. See Lehman, 418 U.S. at 303-04; Children of the Rosary, 154 F.3d at 977-78.

For these reasons, with respect to the artists' motion for cross summary judgment, we hold that the city created a public forum, specifically a designated public forum, in the art displays.

3. Strict Scrutiny

Having determined that the city created a designated public forum, we now consider whether the city's reasons for excluding the artists' work can survive strict scrutiny. See Perry, 460 U.S. at 45-46 (In a public forum, "the rights of the State to limit expressive activity are sharply circumscribed. . . . For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.") (citation omitted); DiLoreto, 196 F.3d at 964-65. The city insists that the works by Hopper and Rupp "were simply the right thing in the wrong place." (quoting Justice Sutherland in Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926), for the proposition that "[a] nuisance may be merely the right thing in the wrong place, like a pig in the parlor instead of the barnyard"). What made the City Hall Gallery the wrong place, the city contends, is the presence of employees, children, and citizens seeking to conduct their business with the city — and, of course, the city's content-based conclusion that plaintiffs' works were political, sexual, and controversial. The city steadfastly maintains that its exclusion of plaintiffs' works was not "censorship" since Hopper and Rupp "have been free to show their art throughout the City, other than [at] city hall." The art, in Pasco's view, was merely ejected from the parlor, not thrown off the farm. But relegating the art to the barnyard does not pass First Amendment scrutiny.

We do not endorse Pasco's cramped view of what constitutes censorship, and we find none of the city's reasons for excluding the art work compelling. Although children may pass through the hallways of the building,