548 F.Supp.3d 12
D.D.C.2021Background
- In response to June 2020 protests, D.C. Mayor Muriel Bowser directed MuralsDC/DPW to paint a two-block "BLACK LIVES MATTER" mural on 16th Street N.W. and to install “Black Lives Matter Plaza” signs nearby.
- The mural was painted under the Mayor’s direction, with commissioned artists, volunteers, and city employees; vandals later added "Defund the Police," which the District repainted over and ultimately repaved and then repainted the mural.
- Plaintiffs (Penkoski, Sevier, Christopher) sued the Mayor alleging (1) an Establishment Clause violation (arguing BLM is a religion—"Secular Humanism") and (2) First Amendment viewpoint discrimination for excluding their messages; they sought injunctive relief and summary judgment.
- Plaintiffs previously had their case dismissed for lack of standing, were allowed to amend, and then reasserted claims including the new viewpoint-discrimination theory.
- At summary judgment the court applied the Walker/Summum factors, concluded the Mural is government speech, rejected the public-forum/viewpoint claim, and again found Plaintiffs lacked standing on their Establishment Clause theory; the court granted the Mayor summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Mural created a public forum or was government speech (viewpoint discrimination) | Mural is a public forum; Plaintiffs were excluded from painting their messages | Mayor directed, controlled, and endorsed the Mural; it is government speech and not subject to viewpoint rules | The Mural is government speech under Walker/Summum factors; viewpoint-discrimination claim foreclosed |
| Whether the Mural violates the Establishment Clause by endorsing a religion ("Secular Humanism") | Mural endorses BLM as a religion, disadvantaging non-adherents | Plaintiffs lack standing; government-speech analysis bears on the claim | Court dismissed Establishment claim for lack of standing and did not reach merits |
| Taxpayer standing (Flast) to challenge Mural as an Establishment Clause violation | Plaintiffs claim federal taxpayer standing based on paying taxes | No showing that a congressional taxing-and-spending action funded or authorized the Mural | Flast requirements not met; taxpayer standing denied (municipal-taxpayer theory not advanced) |
| Pre-enforcement standing based on threat of arrest (self-help plan to paint over mural) | Plaintiffs intended to paint over mural, were warned by police they could be arrested—this creates an imminent injury | Mayor says Plaintiffs manufactured standing and face prosecution under graffiti statute, which they do not challenge | Rejected: pre-enforcement theory fails because plaintiffs do not challenge the statute that would be enforced and have not shown a credible, statute-based threat tied to the challenged conduct |
Key Cases Cited
- Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) (placement of monuments/public displays can be government speech)
- Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015) (framework for identifying government speech and limits on forum analysis)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination is a particularly egregious form of content discrimination)
- Matal v. Tam, 137 S. Ct. 1744 (2017) (cautions courts about misuse of government-speech doctrine)
- PETA v. Gittens, 414 F.3d 23 (D.C. Cir. 2005) (government may convey messages by selecting and presenting third-party art)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (standing requires a concrete injury-in-fact)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements: injury, causation, redressability)
- Flast v. Cohen, 392 U.S. 83 (1968) (taxpayer standing limited to narrow Establishment Clause contexts)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement standing doctrine for credible threat of prosecution)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for granting summary judgment)