By Wendy Wilson /Alianza North County
“There is no Federal constitutional issue more grave than the effort by government officials to censor works of expression and to threaten the vitality of a major cultural institution, as punishment for failing to abide by government demand for orthodoxy,” said U.S. District Judge Nina Gershon in the case, Brooklyn Institute of Arts and Sciences vs. City of New York.
When the City Manager of Escondido, Clay Philips, turned a city committee called the “appearance committee” into his own personal censorship group, First Amendment advocates started to pay attention. This committee was originally created to regulate what color downtown business owners could paint their buildings in the downtown historic district.
Under Clay Phillips office, with the consent of Mayor Abed and council people Gallo, Morasco and Masson, this closed committee has transformed into a tool for city censorship. This taxpayer funded city committee meets to decide city regulations with no publically elected officials and no publically posted or published meeting times.
What does this mean to a citizen of the city of Escondido? It means you lose your first amendment rights when you walk into the city limits. The city manager’s office will tell business owners they must “go through the committee” in order to do any ‘art’ on their private buildings. When artists and business owners contact the city manager’s office they are told by the city “we don’t know when the committee will meet next” denying business owners any sort of speedy or due process in order to be ‘in compliance” with the city managers rules.
Why would the city do this, you ask? Why would the city manager even care about art?
There are over 170 lawsuits against the city of Escondido…shouldn’t the city manager be focused on the legality of his actions?
Ok, so who is on this appearance committee? The city response has been, “I don’t know” or, “it is different people who work at the city.” Most business and property owners don’t know about this secret committee until they get a nasty phone call from the city threatening fines and a closure of their business for murals that the city doesn’t like. Business/property owners do not receive a fair due process, even a basic written notice with statute number or reference to city codes or regulations–they receive intimidating verbal threats by phone.
So basically the only conclusion I’ve been able to reach is that the city is trying to control the form and content of any art, whether it be murals, painted electrical boxes, poetry, music, film, outdoor performance art…you name it, by requiring people to go through a committee …that is not reachable by the average citizen, artist or business owner. The city wants to have ‘control’ over all artistic content whether it is on private property or public property. I think this is illegal and sets up the city of Escondido for lawsuits concerning first amendment right violations.
Legally there is no precedence for a city manager’s office to regulate the form and content of art in a city. All permanently installed art pieces fall under the jurisdiction of the Public Art Commission which is made up of artists and people who have a background in public art management. In other words, they actually know about art. They know the importance of art with regard to urban renewal, cultural tourism, and community input. The Public Art Commissioner is usually the conduit between the city and the commission.
As background, Mayor Abed and council people Masson, Morasco, and Gallo under advisement from the city manager Clay Phillips, defunded or in plain terms ‘got rid of’ the Public Art Commissioner and the position when mayor Abed came into power.
Legally, as an artist and business owner, you cannot be censored because of the content of your artwork. The local arts agency for the city promotes the arts and artists for the city and encourages cultural tourism and celebration of our local artists. I do not believe the city has the legal right to regulate or censor art installations, exhibitions, or murals on private property.
Arts & First Amendment overview, Ken Paulson, First Amendment Center at Vanderbuilt University.
“To be clear, government always has the option not to fund art. Once it does, however, it cannot use its government power to restrict art that may be regarded as offensive, but which does not meet the legal test for obscenity.” –
In a recent Alianza article the city stated they do not censor the content of murals.
So I will give you some facts and you decide…
…The University of San Diego, Trans-Border Institute offered a free summer class to students interested in photojournalism. This type of opportunity is great for our local students. Internationally known photojournalist Jon Lowenstein worked with students to talk about their history, where their great grandparents came from, how they immigrated to the United States. They talked about their daily life in the city. They worked with award-winning Danish book designer and artist Teun Van der Heljden to create a book documenting the student’s lives.
Part of the project included a temporary vinyl mural that was installed on the side of a privately owned building in downtown Escondido. The temporary installation asked the public to write what Escondido meant to them. This is a popular and established way to open up discussion in a community. After the mural had been up for a couple of days the Municipal Gallery was contacted by phone by the city manager’s office who said the mural had to be removed immediately or we would be fined.
When asked why it needed to be removed we were told “We don’t know what it is but it is ugly.” We said it is about the city and was created by local students who live in the city. They didn’t care. So, artwork that includes text, pictures, public input and is made by local students is ugly? Expression is still allowed, right? Not in Escondido. I think this is an attempt by the city to illegally silence citizens and artists.
In another instance, the local arts agency was contacted by business owners in Escondido who would like to have the electrical boxes in front of their buildings painted…just like they do in every other city in San Diego.
I sent out a ‘call to artists’ for some designs for the boxes. Immediately I received an angry email from the city manager’s office surprised that the local arts agency would be looking for designs. I let them know that there was no need to be emotional or upset about a ‘call’ for designs. I let the city manager’s office know that I need to ‘call’ for designs in order to ‘have’ designs to submit to this committee. You can’t submit something you don’t have, right?
Anyway, then I was told that the city doesn’t have a plan for electrical boxes. From years of trying to work with the city, I know ‘we don’t have a plan’ is city speak for “we don’t want to bother with this.” This idea that creative expression by local people for local business owners and the public is too much trouble for the city is unacceptable to me.
The city manager’s office wants to either micromanage everything that we do as artists and business owners or brush our ideas away as being too much trouble. It is not right. I don’t think any of us want to pay city officials to tell us we are not allowed to do something positive, creative, and fun in the city.
Dayton Claudio, The Issue: Displaying Art in Publicly Owned Spaces:
“When it comes to free speech, all public properties are not created equal. Taxpayers own the courthouse just as much as they own the park, but the right to freely express themselves in the two locations differs significantly. Public streets, sidewalks, and parks have been classified by the courts as “traditional” public forums. By custom, these areas are places of discussion, debate, and protest. In a traditional public forum, governments must prove there is a significant governmental interest behind any regulation that restricts expression. Further, such regulations generally may only address content-neutral aspects of expression: the time, place, or manner messages are conveyed rather than the content of messages.”
Michael Lebron, from The Issue: Censoring Artistic Expression and the First Amendment
“In the 1971 case of Cohen v. California, U. S. Supreme Court Justice John Marshall Harlan II succinctly summarized the inherent subjectivity of determining artistic merit when he stated: “one man’s vulgarity is another’s lyric.”
Given that works of art often evoke such diverse and passionate responses, it is not surprising that artistic expression is the target of so many censorship efforts. For the artist, the identity of the censoring party may matter little. For constitutional purposes, however, the censor’s identity is critical. Contrary to the perception of many, the First Amendment does not guarantee the right to express whatever we want, whenever we want.
Rather, the Constitution is only a limit on governmental acts of censorship. The First Amendment simply would not be an issue, for example, if an owner of a strictly private art gallery took down a work because of viewer complaints. Thus, the initial query in any alleged violation of First Amendment rights is whether or not a governmental authority is involved.
Wendy Wilson is a working artist and past director of the Escondido Municipal Gallery and the local arts agency for Escondido