In Hopper v. City of Pasco, 2001 WL 33173121, the U.S. Court of Appeals for the Ninth Circuit (which has jurisdiction over California) held that the City of Pasco (City) violated two artists’ First Amendment rights by creating a designated public forum and then excluding their artwork without a compelling governmental interest.
City’s manager and his administrative assistant created a program for local artists to display their works in the public hallways of the new city hall. They commissioned the Arts Council, a private organization, to manage the program. The manager and assistant made it clear to the Arts Council that they wanted to avoid controversy; however, the arts program was run without any pre-screening, and City provided no further definition or guidance as to what kind of work would be considered inappropriate. Furthermore, there was no selection process to monitor quality, content, or controversy.
The Arts Council solicited two local artists to place art an exhibit. The works of both artists contained nudity and resulted in criticism and complaints. Although nudity was also present in two previous exhibits, one artist’s work was removed from the exhibit, while the other artist’s work was never displayed. The artists brought this action alleging a violation of their First Amendment rights.
The Court of Appeals first inquired into the type of forum that City had created – did it create a “designated public forum,” or a "limited public forum"? A designated public forum exists where the government intentionally opens a nontraditional forum for public discourse. A limited public forum is a nonpublic forum that the government has intentionally opened to certain groups or certain topics. After reviewing the factual record, the Court determined that City intended to create a designated public forum. The Court relied on the following factors:
Having found that City created a designated public forum, the Court of Appeals then applied the “strict scrutiny” standard to determine whether City’s exclusion of the artists’ work was necessary to serve a compelling state interest. The Court found no compelling reason for excluding the artwork. The Court partially relied on the facts that the works had artistic value and City had conceded they were not obscene. The mere fact that the works caused controversy was insufficient to justify their suppression. Therefore, the Court determined that City violated the artists’ First Amendment rights by excluding their work. The Court noted, however, that City could have avoided violating the First Amendment if it had established a clearly stated policy and had consistently administered and enforced the policy.
The Court then turned to the issue of whether City could be held liable for money damages for violating the artists’ First Amendment rights. City could only be liable if the act of removing the art was undertaken pursuant to official policy or custom; City cannot be held liable for the unconstitutional acts of its employees. The Court found that it did not have enough evidence to make that determination. Therefore, it sent the case back to the trial court to determine whether the city manager was a final policy-maker with respect to the arts program or whether the city council ratified the manager’s decision to exclude the works.