Ordinance regulating murals on private property comes up for vote on Monday; lawyer says proposal is unconstitutional
It's the wrong message to the arts community in this city'
- Dustin Chambers/CL File
- Atlanta City Councilwomen Joyce Sheperd (left) and Cleta Winslow address the community and press after a Living Walls mural was painted over in 2012
City Hall might want to ready itself for a legal battle.
An Atlanta City Council committee yesterday unanimously approved a controversial ordinance that would regulate art on private property. And a constitutional lawyer who successfully battled a similar City Hall ordinance several years ago says that he’s “certain” he’ll sue the city if the measure is ultimately approved.
Earlier this year, Councilwoman Joyce Sheperd proposed an ordinance that would require private property owners to seek approval from several city departments and notify surrounding communities before painting murals on their property. The arts community and many neighborhood residents vocally opposed the measure, which they said would stifle artistic expression and, ya know, violate the Constitution. Sheperd vowed to retool the measure.
Two weeks ago, the proposal was re-introduced with some tweaks. Many of Sheperd’s colleagues who had originally co-signed the legislation distanced themselves from being listed as supporters. Yet yesterday, in a meeting that included allegations of racism and jabs at Living Walls, the arts nonprofit that has helped decorate the city’s blank walls with murals, all Community Development and Human Resources Committee members endorsed the legislation. (We've embedded the proposal at the bottom of this post.)
Because the vote was unanimous, it could be approved without debate at Monday’s full Council meeting.
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The measure would apply to all non-residential property but is unclear on how mixed-use properties would be judged. Under the new version, all applications to paint murals on private property would be routed through the city's Office of Cultural Affairs. After several city departments sign off on the application, the City Council could "approve the ordinance presenting the Application, with or without conditions or may vote to adverse the ordinance."
Despite dropping earlier language that would have included sculptures under the ordinance, the language is still vague concerning the definition of a mural.
At yesterday’s meeting Sheperd and supporters specifically called out Living Walls. Representatives from the organization — including Co-founder and Executive Director Monica Campana, who is currently overseas — were not in the audience and were apparently blindsided by the proposal.
Sheperd claims that Living Walls hasn’t shown a good faith effort to work with the city on her proposal. She says Living Walls met with her and the city’s law department earlier this year after the previous proposal stalled. But then the nonprofit went incommunicado in April. During this year’s Living Walls conference, the group opted to paint murals without City Council approval, Sheperd alleges, citing information provided by Office of Cultural Affairs Executive Director Camille Love.
“We have talked to Living Walls on many occasions,” she said during the meeting. “We’ve had meetings with the law department. What’s sad about it is they know the laws. What did they do? They went ahead and painted more murals… It’s quite obvious to me that they don’t respect us. Why should we have meetings with them?”
In a statement, Living Walls Communications Director Jasmine Amussen says the organization was “disappointed” by the committee’s decision to move forward with the ordinance - and that councilmembers did not try to explore alternatives.
“We believe this legislation violates freedom of expression for property owners and artists alike and places an undue burden on those wishing to create art in our public spaces,” Amussen said. “We are further disappointed to hear that the Atlanta City Council did not propose any alternatives or consult with any arts organizations in drafting this legislation. Living Walls remains devoted to creating public art for Atlanta and it's citizens. Along with the rest of Atlanta's art community, Living Walls will explore its legal rights and options at this time.”
Amussen also said that the organization has "endeavored to work with the City of Atlanta and many neighborhood associations to produce public art through out the city."
"Living Walls denies any suggestion that our murals are illegal or improper," she said. "We ask the Atlanta City Council to engage the arts community to help establish public art legislation that properly balances the needs of the citizens of Atlanta, private property owners, and the arts community."
Sheperd did not respond to a request for comment last night. She has also not responded to text messages and, when we last called, her voice mailbox was full. We've also reached out to Councilman Kwanza Hall, who said that although he supported public art, he proposed moving forward with the legislation, arguing a process was needed to "make sure everyone is in the loop."
But Gerry Weber, who in 2004 successfully quarreled with the city over its previous graffiti ordinance, says the legislation as proposed will fail when challenged with a lawsuit.
“There are three basic rules that this breaches," Weber says. "One, it has to be clear and narrow standards. Second, there has to be quick adjudication — quick decision-making. And third, it can’t allow for content-based decision making by the entity that approves or disapproves. And this fails on all of them.”
The core problem, Weber says, is the approval process outlined in the legislation.
“If the councilmember or multiple councilmembers don’t like the artist, don’t like the message, don’t like the color red, they can reject a mural,” he says. “There are absolutely no standards… You can’t have a permit process that basically says if we like your art we’re going to allow you to have it on your private property, if we don’t like it we’re going to reject it. That just doesn’t work under the First Amendment.”
Weber says there’s not much differentiating Sheperd's proposal from the graffiti ordinance he challenged on behalf of Little Five Points business owner Don Bender 10 years ago. That battle ended in a settlement that did away with penalities and punishment for property owners who commission murals.
“The text is different but the central constitutional problems are the same.” he says.
When asked if he was considering filing a lawsuit to challenge this proposal on constitutional grounds, Weber adds: “I am certain that I will be suing the city. I am going to be there if I’m allowed to testify on Monday and I am going tell them just that. I’m going to tell them that this is clearly unconstitutional, it’s a waste of taxpayer money, it’s the wrong message to the arts community in this city.”
Atlanta City Council Murals on Private Property Legislation (revised) by thomaswheatley