Defendants make much of the fact that a statue is a permanent structure, (see Def. Mem. at 9-10; Def. Reply at 3-5), insisting that "the parks have never been a public forum for erection of permanent structures," (Def. Reply at 4.). The Board's argument erroneously assumes that the classification of a forum depends upon the type of speech. On the contrary, a traditional public forum retains its status as a public forum no matter what type of speech is involved. Basically, the Board has confused what should be two separate inquiries: (1) whether there is a right to speak in a particular place; and, if so (2) whether the right may be exercised at the time and in the manner proposed. The manner of the proposed speech is relevant to the second inquiry, but not to the first. Certainly, "the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired," (Id. at 10), and a proposal to erect a permanent structure presents unique problems, (Id. at 4, 5.). However, such concerns may be addressed by implementing appropriate time, place, manner restrictions -- not by carving out exceptions to the general rule that parks are public forums for all types of speech.
C. Content-Based Restriction
Since Humboldt Park is a traditional public forum, the Board's ability to restrict speech is limited. A content-based restriction of speech in a public forum is invalid unless it is necessary to serve a compelling state interest and narrowly drawn to achieve that end. Boos v. Barry, 485 U.S. 312, 321, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988). The overriding concept in First Amendment jurisprudence is content-neutrality. "Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972).
The central inquiry with respect to content neutrality is "whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989); see also Sefick v. City of Chicago, 485 F. Supp. 644, 651 (N.D. Ill. 1979). El Comite has alleged sufficient facts from which the court could decide that the Board's decision was content-based. Initially, the Board (through the Advisory Committee) found that the statue met all relevant criteria for acceptance. (Compl. P 9.) In fact, the out-going superintendent signed the recommendation for approval. (Id. P 12.) The statue was rejected only after the new superintendent, Forrest Claypool, stated that he would oppose the plan because he disagreed with Dr. Campos's political beliefs. (Id. P 16.) From these facts, the court could conclude that the Board rejected the statue because of its political message. Therefore, the complaint states a claim under the First Amendment.
The defendants explain that the Board rejected the statue in order to avoid the controversy represented by Dr. Campos. (See Def. Mem. at 12.) That the Board wishes to avoid the entire controversy of Puerto Rican independence does not insulate its actions from First Amendment scrutiny. On the contrary, the First Amendment's hostility to content-based restrictions in public forums "extends to prohibitions on public discussion of entire topics for the simple reason that if the government was permitted to select the permissible subject matter of public discussion, the government could 'control . . . the search for political truth.'" Irish Subcommittee, 646 F. Supp. at 354 (quoting Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 537-38, 65 L. Ed. 2d 319, 100 S. Ct. 2326 (1980)).
In addition, the Board argues that it can refuse to erect the statue in order to avoid endorsing Dr. Pedro Albizu Campos's political views. (Def. Mem. at 12-13; Def. Reply at 9-10.) Initially, we note that "if [First Amendment rights] could be exercised only when government is willing to offer its co-sponsorship to the speaker, a system of free expression would be indistinguishable from a system of prior restraint." Women Strike for Peace v. Morton, 153 U.S. App. D.C. 198, 472 F.2d 1273, 1280 (D.C. Cir. 1972)(Wright, J., concurring) The First Amendment was designed to protect the voice of the people, not of the government. Id. As such, Government officials are not permitted to restrict access to a public forum merely because they disagree with the views to be expressed. See id. Nonetheless, courts have been willing to recognize a compelling government interest in avoiding the appearance of endorsement when promoting free speech raises the possibility of an Establishment Clause violation. E.g., Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383 (11th Cir. 1993). Even if the avoidance of endorsement could be compelling in the absence of religious concerns, the Board would still be required to show that it protected its interest in a manner which was narrowly tailored.
D. Content-Neutral, Time, Place, Manner Restriction
In deciding that Humboldt Park is a public forum, the court does not imply that any infringement on the right to erect an expressive statue would be unconstitutional. The First Amendment does not provide absolute protection to all speech under all circumstances. See e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984)(no right to round-the-clock vigil in a public park). The Board may regulate the time, place and manner in which expressive activities take place. Such restrictions must be content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication. Ward, 491 U.S. at 791. Courts have recognized several significant government interests which could support restrictions on speech: preserving the aesthetic environment, Clark, 468 U.S. at 296-99; maintaining security on public grounds, Community for Creative Non-Violence v. Kerrigan, 275 U.S. App. D.C. 163, 865 F.2d 382, 391 (D.C. Cir. 1989); ensuring that public art has substantial artistic and cultural significance, Silvette v. Art Comm'n, 413 F. Supp. 1342, 1346 (E.D. Va. 1976); and ensuring that public art is compatible with the use of the property, Serra, 847 F.2d at 1050. The court's decision today does not preclude the Board from coming forward with any evidence showing that its rejection of El Comite's statue was narrowly tailored to serve such a significant government interest.
The defendants insist that the fact that alternative channels of communication are available requires dismissal of the complaint. (See Def. Mem. at 12-13; Def. Reply at 7-10.) The court does not agree. The fact that there are alternative channels of communication is not enough to justify a restriction on speech in a public forum, the regulation must also be narrowly tailored. Therefore, the mere fact that the statue is being displayed elsewhere does not justify dismissal of El Comite's complaint.
E. Other First Amendment Concerns
Even if the Board's decision was not based upon the message the statue conveys and even if the Board has properly adopted content-neutral criteria for rejecting proposed statues, there are facts from which the court could conclude that the Board violated the First Amendment. Facially neutral restrictions on speech will be struck down when they "suffer from the more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority." Heffron v. International Soc. of Krishna Consciousness, Inc., 452 U.S. 640, 649, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981); see also Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 762-69, 100 L. Ed. 2d 771, 108 S. Ct. 2138 (1988)(government may not condition speech on obtaining a license from an official who has boundless discretion).
Here, it appears that the Board has adopted regulations and objective criteria which notify the public of its legitimate concerns regarding permanent structures in public parks. (See Compl. at Appendix.) For instance, before granting approval, the Advisory Committee considers the statue's potential impact upon historic buildings, recreational facilities, landscape, and other features of the park. In addition, the Advisory Committee takes into account potential liability and maintenance problems. Nevertheless, the allegations suggest that the Board did not adhere to these guidelines in this instance; rather, the Board rejected El Comite's statue even though it met all relevant criteria. If the Board applied ostensibly neutral criteria in a discriminatory manner, it may have violated the First Amendment.
Finally, the defendants insist that there is no right to force a gift upon the government, citing three cases in which courts upheld the government's right to refuse a donation. (Def. Mem. at 3-6; Def. Reply at 1-3)(citing Silvette, 413 F. Supp. 1342 and Via v. Richmond, 543 F. Supp. 382 (E.D. Va. 1982) and Avins v. Rutgers, 385 F.2d 151 (3d Cir. 1967)). The defendant argues, "the donors in these cases lost because their First Amendment claims could not overcome the recipient's right to refuse the gifts." (Def. Reply at 3.) The court rejects defendants' contention that the government has an unfettered right to refuse to display artwork in spite of the First Amendment.
First, the court finds it significant that none of the cases cited by the defendant involved a public forum. See Silvette, 413 F. Supp. 1342 (campus building in state-operated university); Via, 543 F. Supp. 382 (public library); Avins, 385 F.2d 151 (state-funded law review). The importance of this fact is that the government had considerably more discretion to regulate speech in those cases than it does here, where a quintessential public forum is involved.
Second, in all three of those cases, the state rejected the donations for failure to meet objective quality standards. See Silvette, 413 F. Supp. 1342 (painting did not have substantial artistic and cultural merit); Via, 543 F. Supp. 382 (magazine was of low quality); Avins, 385 F.2d 151 (article did not meet publishing standards). In this case, there are facts suggesting that the Board's decision was based upon the message the statue conveys -- not upon its value. In light of these distinctions, the court holds that, although the government has a right to reject donations, it must exercise that right consistently with the First Amendment.
II FOURTEENTH AMENDMENT CLAIM
The complaint does not state a claim for relief under the Fourteenth Amendment because plaintiffs fail to sufficiently allege that the Board rejected the statue because of the plaintiffs' nationality. In order to constitute a violation of the Equal Protection Clause, the defendants must purposefully and intentionally discriminate against the plaintiffs because of their membership in a racial or ethnic group. Personnel Adm'r v. Feeney, 442 U.S. 256, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979); Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). At a minimum, the allegations must suggest that racial animus was a "motivating factor." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). Where direct evidence is not available, the plaintiff may point to a pattern of action that disproportionately burdens an ethnic group and which is unexplainable on grounds other than race. Id. at 266.
El Comite's complaint fails to set forth sufficient facts. First, the plaintiffs, themselves, have offered a non-discriminatory explanation for the Board's actions. Specifically, El Comite claims that the Board rejected their proposal because it did not agree with Dr. Campos's political beliefs. By their own argument, plaintiffs suggest that there are non-discriminatory -- albeit potentially unconstitutional -- explanations for the Board's action.
In addition, the complaint fails to set forth a discernible pattern of discrimination evidencing racial or ethnic animus. The plaintiffs note that the Board has accepted 16 monuments from other ethnic organizations and that there is no monument commemorating Puerto Rican culture. (Id. at 21.) However, the plaintiffs concede that their proposal was the first attempt to erect a statue of a Puerto Rican. (Resp. Br. at 21; Compl. P 29.) These facts fail to present a pattern of discrimination from which the court could construe discriminatory intent. As such, the allegations are insufficient to state a claim under the Fourteenth Amendment.
For the reasons stated herein, the defendants' motion to dismiss is denied with respect to the plaintiffs' First Amendment claim, but granted with respect to the Fourteenth Amendment claim.
Ann Claire Williams, Judge
United States District Court
Dated: Sep 2 1994