Opinion - Public art, private decisions

City's public art policy aimed at preventing controversy might also step on free speech

Living Walls 2013 is underway. Since the Atlanta street art and urbanism conference began in 2010, more than 60 artists from around the world have created more than 70 murals in neighborhoods throughout the city.

Long before any murals started taking shape this summer, Living Walls' team of volunteers was deep in paperwork, filling out detailed applications to submit to Atlanta's Office of Cultural Affairs. With the exception of its first guerilla-style event in 2010, Living Walls has filled out official paperwork for its walls each year, and each year the process has gotten more involved, forcing the nonprofit to plan further and further ahead.

Living Walls installs its murals on private property with the approval of the owners so the city requires the organization to fill out what's called a Certification for the Installation of Public Art for each piece. This application verifies that the artwork isn't an advertisement, won't disrupt traffic, and aligns with the city's public art program. It must also include a rendering for every mural, from which the artist must not stray. It's recommended the organization meet with communities and neighborhood groups where work is going up. This year the city also required that each mural be introduced as an individual piece of legislation, sponsored by the appropriate council member depending on its neighborhood, and ultimately voted on.

According to OCA director Camille Russell Love, the legislative step has always been required, just not necessarily followed. And, she notes, "This is a process that every property owner should go through before they put something, some visual image on their private property to guarantee that it isn't an advertisement. It is a process that every property owner is supposed to be following."

So in July, Atlanta City Council members presented about two dozen murals on behalf of Living Walls. All were approved with little or no debate. Yet there is something that deserves to be rigorously discussed.

Each of the ordinances submitted by council members included, among other things, an artist's rendering and language from Atlanta's 1982 sign ordinance, including: "WHEREAS, the Council finds that the value to the general public in viewing the work is not outweighed by any existing negative public interests related to aesthetics, additional sign clutter, or the public safety."

"Any existing negative public interests related to aesthetics."

This specific language raises some fundamental questions about free speech and whether or not the city is overstepping its bounds when it comes to telling citizens what they can and can't do on their own private property. It creates the potential for censorship before the fact and the possibility of infringing on individuals' First Amendment rights.

Gerry Weber, a constitutional lawyer and free speech expert, says that language is "troubling" because it "allows the city council to approve or reject something approved by the property owner. Property owners have a First Amendment right to display that mural or artwork without city approval. The legislation allows, at least in print, to actually reject something that a private property owner has on his own property."

Weber should know. Seven years ago, he successfully challenged the city's 2003 anti-graffiti ordinance, which criminalized murals created on private property without city approval.

So, given First Amendment protections as well as the 2006 decision, what business does the city have introducing a citizen's personal taste for art on his or her own property as legislation? Shouldn't the government's involvement stop once the imagery is deemed not to be advertising?

"There is well-established Supreme Court precedent that authorizes the city to regulate aesthetics, and regulation of aesthetics does not necessarily include regulation of content," Melissa Mullinax, a spokeswoman for Mayor Kasim Reed, said in an email. "Our sign and public art ordinances do not, on their face, regulate content in an impermissible manner."

Adds Love: "The city council isn't sanctioning or not sanctioning images based on content. They're reflecting the will of their communities in which there are walls that they have to live with. So it's just a matter of communication, conversation, and information between all parties so that it's a consensus that is reached."

The city should be encouraging public debate and discussion among its citizens. In the specific case of Living Walls, whose mission is "to promote, educate and engage our communities with public space via street art," according to co-founder and Executive Director Mónica Campana, consideration should absolutely be given to specific communities' points of view if the organization wants to be successful in its mission.

And given the heated debates and impassioned reactions that a few Living Walls murals have incited, it's understandable that the city would want due diligence in anticipation of the highly visible event.

But put Living Walls aside for a moment and consider that this process raises free speech questions for many Atlantans. Remember, these rules apply to all private property owners in the city.

At what point exactly does a paint job on a house, for instance, become a mural? The legislation's language appears to create the opportunity for council members to block a mural, or even refuse to sponsor it in the first place, due to "aesthetic" concerns. The decision of whether or not a mural, artwork, or some other kind of visual speech can go up on private property should ultimately fall with the property owner, not the city.

"There's a basic standard that goes back to the 1930s that says absent something like a march where there's a public safety issue, a citizen doesn't have to obtain a license from the government to speak. You don't have to get permission to hold up a sign on Peachtree Street or put up a mural on private property," says Weber.

Love says the city is in the early stages of revising and streamlining the approval protocol for public art on private property. She declined to offer specifics. As it moves forward, the city should pay close attention to potential problems concerning free speech that an overreaching process might create.

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