From the Streets to the Court: Content Neutrality

We have examined the two-part test for “time, place, and manner” restrictions, and we have examined the four-part test to obtain a preliminary injunction. This week, this author will speculate as to an initial legal roadblock the City may have feared.

On June 23, the street artists and representatives for the City of Atlanta met in court. The parties agreed to this judicial order: the City will not enforce Atlanta’s Public Art Ordinance as currently written, and the City must notify enforcement agencies to refrain from citing violators. Essentially, the artists won their motion for an injunction without judicial deliberation.

Because the parties consented to settle this dispute themselves, the order does not contain an analysis of “time, place, and manner” restrictions or preliminary injunction requirements. Without these in-depth analyses, the order is actually very short—only one page long. It is unlikely that we will discover what the parties said to each other in negotiation that led to such a concise consent order, but the artists probably had some compelling arguments since they seemed to have won everything they asked for.

The artists presented several legal theories in their complaint and motion for an injunction, and it is possible each side could have made fair arguments regarding the various legal elements involved. This author speculates the City of Atlanta feared one argument, in particular, content neutrality.

Two weeks ago, we mentioned content neutrality. Before beginning a two-part test for “time, place, and manner” restrictions, the court must decide if the ordinance suppresses the content or message of any particular speech.

The City’s entire case hinged on the ordinance being content neutral. While the ordinance has specific language that instructed city officials not to suppress content or message of public art through the certification process, this author suspects the language serves as mere lip service. To understand content neutrality a little more, we can reflect on a 1995 case regarding the Atlanta Olympics, Outdoor Systems v. The city of Atlanta.

In 1994, the City of Atlanta tried to increase the number of billboards promoting the Atlanta Olympic Games through city ordinance. The Olympic Sign Ordinance did not permit general advertising signs in a special zone, called the Concentrated Sign District. Such a content-based restriction, allowing one form of speech but restricting another, is often fatal.

However, not all speech is equal. As early American history would suggest, political speech—often referred to as noncommercial speech—is the most protected form of speech. Commercial speech, on the other hand, can be subject to more regulation because it should accurately inform the public.

Despite the greater latitude a city has in creating ordinances that regulate commercial speech, the court declared the Olympic Sign Ordinance unconstitutional. Although the time and place were reasonable, the manner was unconstitutional because it based limitations strictly on the content of the message.

In the artists’ motion for an injunction, the artists argued that the City’s Public Art Ordinance inverted First Amendment values, affording more protection to commercial speech than noncommercial speech. Under the ordinance, government officials must pre-approve artistic, visual, and wholly noncommercial expressive content, while other expressive content visible to the public, commercial or non-commercial, does not have to go through this multi-layered pre-approval process. While the court did not declare the ordinance a content-based restriction, such a ruling would have derailed the City’s case.

This post marks the conclusion of GLA’s reports of Williams v. The city of Atlanta. The artists won the fight for their First Amendment rights. Let’s hope they win their fight for attorney fees too.

Written by Gabriel Medford


Outdoor Sys. v. City of Atlanta, 885 F. Supp. 1572 (N.D. Ga. 1995)