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Requiring New Buildings to Display Art Isn't Free Speech Violation

By William Vogeler, Esq. on February 07, 2018 | Last updated on March 21, 2019

Don't be surprised if Oakland developers display anti-establishment artwork in their building lobbies.

A federal judge said the building industry is bound by a city law that requires commercial and residential developers to display art publicly or pay a fee. At a cost of up to one percent of their budgets, the builders will have to pay for some pricey artwork.

Although they lost in Building Industry Association - Bay Area v. City of Oakland, at least the judge said they get to choose the art.

Constitutional Challenge

The association sued in 2015, challenging the ordinance on constitutional grounds. The complaint said the city had violated the First and Fifth Amendments.

Judge Vince Chhabria rejected the claims, saying the city had not taken anything and had not impermissibly infringed on free speech. The Fifth Amendment's "takings clause" applies only when government targets specific property; the First Amendment is something else.

"The ordinance does not require a developer to express any specific viewpoint, because developers can purchase and display art that they choose," he said.

Plus, under the ordinance, developers may pay the city a fee for public artwork rather than display it. That does not violate the free speech clause, the judge said.

Public Art Ordinances

Oakland Mayor Libby Schaff introduced the Public Art Ordinance in 2014, but it was not the first of its kind. At least 12 other cities in California have similar laws.

Beverly Hills, Culver City, Los Angeles, Mountain View, Pomona, San Diego, San Francisco, Santa Monica, and West Hollywood mandate that developers include artwork in their projects.

Portland and Seattle require the installation of public art as a condition of zoning variances.

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