When the city of Pasco converted an abandoned schoolhouse into their City Hall, the city manager decided to commission the Arts Council to manage a program that would invite local artists to display their works in the public hallways of the building. A non-controversial program was a prerequisite; offensive or politically motivated art was discouraged. The program was nonetheless run without any sort of pre-screening process.
Janette Hopper and Sharon Rupp independently contracted with the Arts Council to display their work in the City Hall Gallery, but Rupp's bronze statues were removed after a single week of being displayed, and Hopper's linoleum prints were never displayed after they were delivered to the gallery. Both artists received letters from the City manager's administrative assistant informing them that their artwork would not be shown out of concern that it would be misconstrued as "sexual" or "prurient." Both artists charged that the City's decision not to display their work was inconsistent with prior exhibits, since the gallery had displayed pieces containing nudity in the past, but the City responded by saying that prior work had not been properly reviewed before being displayed. The City discontinued the arts program shortly after this incident.
Reversing the District Court's decision to deny First Amendment protection to the art because the City Gallery was not a public forum, the Ninth Circuit Court of Appeals held that the City intentionally had opened its display space to expressive activity by the public without regard to content, thus making it a designated public forum. The classification of the City Gallery as a designated public forum raised the scrutiny of the restriction on expressive activity to strict scrutiny. To pass muster under strict scrutiny, the City had to show that the restriction was necessary to serve a compelling state interest and that it was narrowly drawn to achieve that end. The Court found that the restriction did not serve a compelling state interest, as the works were not obscene and there was no indication that children would see or be harmed by them. Had the City established an objective, viewpoint neutral policy, which was clearly articulated, then the policy could be constitutionally permissible if it effectuated a compelling state interest. Therefore, though the City was well intentioned and acted in good faith, the Court found the City’s actions were a violation of the artists’ first amendment rights.
This case is significant for clear delineation of designated public forum and limited public forum.
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