By: Mark Glennon*

UPDATE: In a truly astonishing development, the two individuals in Martinez, CA described below have now been charged with a hate crime.

Are Black Lives Matter supporters free to paint those words and its slogans on public streets? Do others have a right to put up contradictory views or cancel out BLM messages?

Those questions should be trending, given recent headlines, but they are yet to be discussed in the press. Perhaps that’s because answers are unclear, at least as far as I can tell.

Removing “Black Lives Matter” in Martinez, CA

“From Cleveland to Montpelier, Vt., BLM street slogans have been defaced,” says The Washington Post in a Monday story about two people in Martinez, California who painted over “Black Lives Matter” that had been painted on a public street. Major streets in New York and Washington, D.C. have been among those painted with Black Lives Matter.

Locally, the words Black Lives Matter and Defund EPD, which had been painted on Evanston streets, were splattered with white paint this past weekend in what appears to be an attempt to deface the words, according to various news reports.

Who has what rights to paint public streets?

The starting point is what’s called the public forum doctrine. That doctrine, which courts have recognized under the First Amendment for over 80 years, requires “viewpoint neutrality” when government creates a public forum for speech. Under that doctrine, when government excludes a speaker from a public forum – such as a park or a podium at a government meeting – doing so may violate the speaker’s First Amendment rights if the exclusion is based on the content of the speech or the speaker’s viewpoint.

It’s under that doctrine that courts have denied government officials, including President Trump, the right to block critics on social media. Officeholders are obviously free to say what they want. But if they choose to go on a public forum like Twitter that allows responses, those officeholders cannot block reactions they don’t like.

By letting people paint messages on public streets, cities probably would be deemed to have created a forum, so it might seem that neutrality demands that competing messages be allowed. Or since contesting messages might make a mess of the streets, perhaps dissenters would defend erasing them by claiming neutrality can be preserved that way.

But not so fast.

Courts also recognize something called the government speech doctrine, which basically says the government itself can express whatever viewpoint it chooses. So, if the BLM messaging is the city’s own or the city blessed it, it’s probably protected.

If you are confused, you should be. The conflict between the public forum and government speech doctrines has been variously described as either a contradiction or a paradox. A Boston College legal journal put it this way:

[T]he government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint discrimination against private speech.

Making things still murkier in Martinez and Evanston are the facts about whether the government was itself speaking. If it was private citizens and not the government, the government speech defense would not apply.

In Martinez, community members reportedly did the original Black Lives Matter painting though they had a city permit to do so.

“Defund EPD.” Source: Daily Northwestern.

In Evanston, it appears the city supported the Black Lives Matter painting but not the Defund EPD message, according to the Daily Northwestern, and those who painted the latter may face charges.

I’ll leave it there on how courts would deal with these cases and let First Amendment experts speculate further.

As a matter of policy, however, it certainly seems the government should stay away from divisive messaging unless they deliver it in forums where debate can be robust. Painting streets is no such forum.

Many will say, of course, that there is nothing divisive in BLM messaging and that dissenting views should be disregarded. Much of the press will go along with that, reporting the dissenters as vandals or racists. The San Francisco Chronicle headline on the Martinez incident was “Black Lives Matter mural in Martinez vandalized in ‘hateful and senseless’ act.”  And in The Washington Post, the headline was, “Calling racism a ‘leftist lie,’ white vandals target California Black Lives Matter slogan.”

But the division BLM inflames is real and will grow. BLM Chicago recently retweeted a video of Fred Hampton with the message, “we not gon fight capitalism with black capitalism, we gon fight it with socialism… we’re going to fight their reactions when all us people get together and have an international proletariat revolution!” Hampton was a Black Panther leader killed in a 1969 police raid in Chicago.

And over the weekend BLM Chicago promoted training sessions on abolishing the entire police and prison system, which included “black only” sections.

We wrote more about them and the national BLM organization’s extremism earlier. Their supporters have their legal rights, but the facts are coming out. Race relations are being set back by fifty years and BLM is part of the reason why.

*Mark Glennon is founder of Wirepoints.

55 Comments
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Mike
25 days ago

At the very least if a permit is granted for BLM, Defund the Police, etc. then one can apply for a permit for an opposing message in an equally prominent location.

All Lives Matter, 2 BLM Founders are Trained Marxists, Police Protect Us, We Need Police, etc.

Last edited 25 days ago by Mike
Barb Costas
24 days ago
Reply to  Mike

Mike, How about this message: “Children’s Lives Matter”?
Who wants to be the Town Council to deny that message?

Mike
28 days ago

Radiance Foundation, Purcellville, VA (Loudon County).

Top Ten Reasons I’ll Never Support the #BlackLivesMatter Movement.

by Ryan Scott Bomberger.

June 5, 2020.

“Every life unjustly killed deserves justice.

In the cause to make things right, I will not join a movement that has nearly everything wrong.

More innocent lives have now been killed (#BlueLivesMatter, too) since these predominantly violent protests began over George Floyd’s horrific death.”

http://www.theradiancefoundation.org/blm

Bill
29 days ago

The people of Illinois better vote smart for once in their lives or BLM is their future…

Rick
30 days ago

Cleaning BLM graffitti off your own property is also now being prohibited.

Doly Garcia
30 days ago

“As a matter of policy, however, it certainly seems the government should stay away from divisive messaging unless they deliver it in forums where debate can be robust. Painting streets is no such forum.”

That’s a fair point, but the same argument applies to monuments erected to divisive figures. Clearly confederate generals fall in that group, and always have, and many of the statues were erected relatively recently (in the sixties). Maybe both the street paintings and the statues should go.

Fur
30 days ago
Reply to  Doly Garcia

Is that you Tammy?

DixonSyder
11 days ago
Reply to  Doly Garcia

Dolly Parton?

30 days ago

Black Lives Matter has nothing to do with caring for black lives. It has everything to do with erradicating American society and the American government. It is a terrorist organization and the newly arrived moron, yuppies in Martinez are brain dead, one and all, for supporting that filty organization. To even contemplate charging those two fine people with erasing that BLM loathsome logo from our streets is obscene. You stupid Californians are leading this nation to destruction and into the waiting arms of Communist China.

s & p 500
30 days ago

NY Times had an article about how eliminating statues of Stalin and Lenin accomplished nothing. I’m surprised nobody in Las Vegas is protesting to hurry up and demolish the Luxor (most people think the real pyramids were built by slaves).

https://www.nytimes.com/2020/07/07/world/europe/russia-statues-lenin-stalin-dzerzhinsky.html

https://www.casino.org/news/luxor-las-vegas-demolition-rumors-spread-insiders-say-days-numbered/

Douglas
1 month ago

Does anyone else think they are living in the twilight zone? I got pulled over yesterday for not stopping all the way at a stop sign (yes, I did stop all the way and my dashcam proved it). No ticket, but people are destroying public owned statues, looting, rioting, painting streets etc with impunity and yet I feel like we’re inching towards totalitarianism.

s & p 500
30 days ago
Reply to  Douglas

There’s a vid on you-tube “Red Nightmare” with Jack Webb and Jack Kelly that seemed like a relic from my grade school days during the Cold War but now it seems quite plausible.

Chase Gioberti
1 month ago

I will intentionally avoid black business today. Thanks for the warning.

Cole Gioberti
1 month ago
Reply to  Chase Gioberti

You are racist, dad.

Chase Gioberti
1 month ago
Reply to  Cole Gioberti

Hahaha. No, I’m just acting in the spirit of Blackout day.

Cole Gioberti
1 month ago
Reply to  Chase Gioberti

You’re very wise, dad.

Freddy
1 month ago

Don’t forget today is Blackout Day. If you are black you are encouraged to shop ONLY at black owned businesses. Imagine the outrage if there was a Whiteout Day? Reminds me will Wite-out correction tape be banned or is it now considered PC ?

MillerTime
1 month ago
Reply to  Freddy

Thanks for the good news. Means going shopping without having to worry about the packs of thugs and thugeroos bouncing around the corridors, hoopin’ and hollerin’ in the food courts, parking their banged up 2020 car with only 60 more payments and useless insurance next to my nice truck. Least I forget, at the checkout, having to wait for them to pick through their wallets(shopliftingbags) for which of their 10 credit cards has enough to buy that $5.00 item, and have to listen to the hysterical excuses for why ‘dis card sho bez good’ and it isn’t.

William H Schmidtgall
1 month ago

Don’t make it complicated. They are defacing public property, covering safety lines and requiring tax monies to repair.

It shouldn’t be allowed, period, by any group.

Lawsuits will add confusion and enrich lawyer, again, at citizen expense

Joey Zamboni
1 month ago

I agree…

Also, was tax money used to paint the messages in the first place…?

Barbara Costas
1 month ago

Tom Fitton at Judicial Watch requested the right to paint “No One is Above the Law” on a Washington street, and the Mayor denied the request.
He is suing the DC Mayor.
Might some citizens of Evanston request the right to paint, say,
“We the People” on an Evanston street?
https://youtu.be/gsWH8U9Ltq4

Gemini
1 month ago

I moved out of Evanston over 20 years ago. Way too many wacked out liberals and Democrats. Soooo glad I left.

Lyn P
1 month ago
Reply to  Gemini

Family members did the same, but too early to realize their choice would ultimately be worse (CA – SanFran area). :((((

MillerTime
1 month ago
Reply to  Gemini

Oakie Parkie is just as wacked, won’t even drive through that village.

Oak Parker
1 month ago
Reply to  MillerTime

I love Oak Park

Barbara Costas
30 days ago
Reply to  Oak Parker

In every yard a sign that says:
“Hate has no home here”
-unless you disagree with me

Oak Parker
30 days ago
Reply to  Barbara Costas

That’s good.

Fur
30 days ago
Reply to  Oak Parker

And you must be Susan!

Oak Parker
30 days ago
Reply to  Fur

And you must be Susan in a fur!

Barbara Costas
29 days ago
Reply to  Fur

definitely Karen!

Fur
29 days ago
Reply to  Barbara Costas

Ha! I actually should have put in the full name as intended..
Susan Buchanan! I’m sure some have seen her video posted here last year.

True believer
29 days ago
Reply to  Oak Parker

Better carry a gun in BLM controlled oak park of anarchists, cop haters, looters, and domestic terrorists. It’s unsafe and full of leftists.

Oak Parker
28 days ago
Reply to  True believer

Oak Park is very safe.

Oak Parker
28 days ago
Reply to  Mike

I feel safe there.

Oak Parker
28 days ago
Reply to  Mark Glennon

That was Cicero, not Oak Park.

Barbara Costas
30 days ago
Reply to  MillerTime

Bill Ayres was a guest speaker at the library here in Oak Park last year- encouraging the attending teachers and students to examine all facets of life through the prism of marxist cultural theory.
The librarians and teachers were enraptured by the Dark Prince, faces ecstatic at his every word.
Oak Park has passed through the looking glass.
I am planning my escape.

Oak Parker
30 days ago
Reply to  Barbara Costas

Anthony Clark, Wednesday Journal and Ms. Ari Walker-Peddakotla help keep Oak Park bias free.

Rick
30 days ago
Reply to  Oak Parker

Oak Park is a racist town that blocked through traffic from Ausin widely. It has very little section 8 housing. No very low income housing. The white priviledged racists there would call the cops if they saw a gang of blacks strolling along near a Frank Lloyd Wright house. The taxes are ridiculous in order to keep the poor blacks out of town.

Oak Parker
30 days ago
Reply to  Rick

Oak Park is very integrated. Travel to and from Austin is easy.

Barbara Costas
29 days ago
Reply to  Oak Parker

yeah is you’re willing to have a full can of soda thrown at you if you refuse to give the fundamental transformationists your money.
Yes this happened to me on the green line.

True believer
29 days ago
Reply to  Oak Parker

Oak park is unsafe because the leftists cater to the Austin bangers. It’s turning into a ghetto.

Oak Parker
28 days ago
Reply to  True believer

Oak Park is classy, not a ghetto.

Mike
1 month ago

Nobody should be able to use a public street as a free billboard or canvas.

Pay for a billboard or ad like everyone does.

NB-Chicago
1 month ago

Mark-Another great articale!! More extreme example, over the weekend in Baltimore you have the mayor basically admiting he wasn’t going to stop or dedicate police resources to stopping ‘mob’ from tearing down Columbus monument because he’s down with the blm/ woke/cancel culture. So if some opposing group goes out and tears down public monument in protest of MLK or F. Douglass, for example,then does the mayor equally not enforce the law? It wouldn’t be–equal protection under the law, but –equal lack of protection under the law….anarchy https://www.baltimoresun.com/maryland/baltimore-city/bs-md-ci-columbus-statue-20200705-xc4bhthfhjaflifz72org2lrhy-story.html

Mike Williams
1 month ago

If the purpose of BLM is to create racists, it’s doing a great job. Imagine being a person of one ethnicity seeing people of a different ethnicity generally behaving inappropriately on a regular basis. I find it necessary to constantly remind myself that despite what my eyes are seeing, despite the hate my ears are hearing, that judging an entire race by their most vocal members isn’t fair. Unfortunately, the reality is that the more hatred they direct at my ethnicity, the more I hate theirs.

30 days ago
Reply to  Mike Williams

Mike, BLM has nothing to do with black Americans. Babies killed in the streets of New York, Chicago and cities all over, and they say nothing. Those deaths have nothing to do with their agenda. Their agenda is the destruction of society of the United States.

nixit
1 month ago

When I saw “Black Lives Matter” painted on the street in DC, my first thought was you couldn’t see the lane dividers and the “E” in Lives covered the crosswalk. I bet if you dig into the DOT rules on pavement markings, this might be considered a safety hazard.

Riverbender
1 month ago
Reply to  Mark Glennon

Exactly!

Tom Paine's Ghost
1 month ago
Reply to  nixit

So if stop in the middle of the BLM street in DC and take a leak on the text is it a hate crime? If they aren’t arresting looters, rioters and statue topplers then I’d guess that public urination isn’t worth a ticket either.

Nathan R. Jessup
1 month ago

It ain’t a crime in San Fran. Even a ‘brownie’ drop is acceptable to those morons.