Viewpoint Discrimination and Impact: Funding for Public Art in Oakland

On July 23, 2015, the Building Industry Association of the Bay Area (BIABA) filed a claim in the Northern District Court of California against the City of Oakland, asserting that the newly revised Percent for Public Art Ordinance violated developers’ constitutional rights.  Basing their claim on two causes of action, under the First, the Fifth, and consequently, the Fourteenth Amendments[1], the outcome of this suit could potentially jeopardize similar Percent for Art programs in other major US cities, notably Philadelphia and San Francisco, both of which rely on contributions from private developers.[2] 

Scheduled to go to trial in September 2016, this case presents a unique opportunity to look more closely at the intersections between public and private investment in public art as a form of social engagement, and the degrees to which this social imperative is mandated and regulated by constitutional law.  More pointedly, the precedential law relating to government arts funding will help to anticipate the court’s holding in this case and allow for a consideration of its consequences.

Percent for Art programs are generally supported for their ability to champion positive social aims and foster economic growth, however they are more commonly associated with public development projects.[3]  The public art ordinance in Oakland is not unique in exacting funds from private developers, however the case requires

careful consideration of how the public and private sectors are delineated within the law and how constitutional rights and restrictions are subsequently imposed. 

Having previously allocated 1.5% of municipal capital to the funding of public art projects the City of Oakland amended the code in December 2014, to adopt Chapter 15.70, requiring that an additional .5% of residential or 1% of nonresidential development project costs be set aside for production and display of publically accessible art. [4]   The new Public Art Requirement states that should the developers forgo the on-site installation of government approved art projects, they must pay an in-lieu fee to be used at the city’s discretion for public art initiatives.[5]

The plaintiff is pursuing its first cause of action under the Fifth Amendment based on the precedent set forth by Koontz v. St John’s River Water Management (2013)[6], wherein the court expanded on the Nollan/Dolan test which does not allow governments to exact fees from “developers that are unrelated and disproportionate to the direct impact arising from new developments”[7], adding that compensation could also be sought for the denial of such land use applications.[8] The plaintiff is seeking a declaratory judgment that the exactions of the ordinance are unconstitutional and injunctive relief to compensate for the takings of their property without reasonable connection between exaction and social impact of developments. [9]

In pursuing this claim the BIABA echoes a long-held distrust in the ability of public art to remedy social ills, particularly if such projects fail to meet the immediate needs of the community being displaced or impacted by development. [10] Currently, there is an affordable housing crisis in Oakland, however, there is no evidence that proposed public art projects have the capacity to mitigate these conditions. [11]

This Fifth Amendment claim is further informed by holdings in the Ehrlich v. City of Culver City (1996) case where the city refused to approve a rezoning application unless the developer agreed to pay fees; one to mitigate the social impact of repurposing recreational facilities for a condo development and the second a 1% public art fee.  The appellate court held that there was an “essential nexus” between the exaction of both fees and the impact of development.[12]  More importantly, the court held that the public art fee was an aesthetic requirement, and being similar to any other design or landscaping requirement was within the jurisdiction of the city to impose. [13]

The Fifth Amendment serves to protect individuals from being singled out to bear a disproportional share of costs for community improvement projects, and the Ehrlich v. City of Culver City case offers direct precedential law supporting the City of Oakland’s defense of the Public Art Requirement, particularly if the city focuses on appropriateness of exactions based on aesthetic requirements.

The second cause of action being brought forth by the BIABA pertains to First Amendment jurisprudence.  Under the First Amendment it is unconstitutional for the government to infringe on the free speech of its citizens and as such it is required to maintain a position of viewpoint neutrality.  The neutrality mandate is upheld within the analytic framework of the public forum, an archetypical site of free expression and public discourse, which has been subdivided within the law into a three-tiered system for the purposes of regulation.  Public and limited public forums are generally open to all forms of expression without governmental restriction, with the exception of time, place, and manner of speech restrictions. In the third, nonpublic forum governmental restriction of content is allowed, however, viewpoint neutrality is required. [14] Much of the debate over government funding of the arts assumes that such activities take place within a nonpublic forum.

The government speech doctrine, however, is a constitutional exception, which allows the government to decline this neutrality for the purposes of its own speech.   As a speaker or as a subsidizer, the government may favor one viewpoint over another in expressing its own interests.  The government cannot, however, force or coerce its citizens into the expression government speech and this is the cause of action under which the BIABA bring forth its second claim.

The invocation of the government speech doctrine as it relates to government funded activities within a nonpublic forum is often seen as problematic and has historically been called into question by many lawsuits, including Rust v. Sullivan.[15]  The government speech doctrine was famously applied within the context of arts funding in The National Endowment for the Arts (NEA) v. Finley case, where the court held that the government could selectively fund projects, by applying decency criteria, without compromising the mandate of viewpoint neutrality.[16]  Many have argued that the government speech exception negates the position of neutrality in nonpublic fora, allowing the government to flood the marketplace of ideas and limit the speech of opposing viewpoints through a lack of funding. [17]

In his analysis of viewpoint discrimination in the NEA v. Finley [18] case, David Hungerford, a UC Davis Juris Doctor, presents a paradoxical, yet possibly useful solution to limitations imposed by the viewpoint neutrality requirements within the three-tiered framework of public fora in First Amendment rights.  He proposes that the creation of a fourth forum would allow for government funding to be granted with an allowable degree of viewpoint discrimination.  He argues that by narrowing the scope of permitted expression, from one that already relies heavily on subjective standards of artistic excellence, to one that permits some degree of viewpoint discrimination, public funding would regain relevance and increase its capacity for social impact. [19]

Although Hungerford is making a case for public arts funding it is relevant to the discussion of private sector Percent for Art programs, as a fourth forum would also allow for Oakland’s Public Art Ordinance to exact funds from developers and freely use it for public arts projects without implicating the private businesses in government speech. Moreover, the relaxation of the neutrality mandate may increase the correlation between the impact of development and art as its remedy, diminishing the BIABA’s first cause of action under the Fifth Amendment.

Taking a similar position, professor in constitutional law, David Cole calls for the reassessment of the selective funding of speech through government subsidies, recommending that institution-specific spheres of neutrality be identified and enforced.[20]  Rather than the strict binary of discrimination and neutrality being applied across fora, Cole believes that First Amendment rights would better serve the public good if tailored to specific circumstances.

Unfortunately, in the BIABA v. City of Oakland case, it is likely that the court will hold in favor of the plaintiff, as the Public Art Requirement does coerce developers to adopt government speech as a means of obtaining building permits.  The argument could be made that the city is exacting these fees as they would any other levy meant to correct the detrimental effects of development or to uphold aesthetic requirements, however by insisting that developers fund only select projects, the municipal government is forcing private developers to collude in viewpoint discrimination which in turn infringes on their free speech.  The City of Oakland would be best advised to base their defense on the precedent set forth in Ehrlich v. City of Culver City (1996) which would justify the Public Art Requirement as an aesthetic requirement.

As it stands, arts funding cannot be left solely to the government, due to the issues presented within the current framework of viewpoint neutrality restrictions and the government speech exception, but it also cannot be left to the private sector, as this would essentially silence the interests of the poor.[21]  The BIABA would not have a case against the city of Oakland if the there existed a more nuanced articulation of the neutrality framework along the edges and convergence points of public and private interests. By identifying specific needs within institutions, including both public funding mandates and private development ordinances, and refining constitutional law accordingly, public art may be able to reclaim some of its social relevance.




[1] U.S. Const. amend. XIV, § 1. The Fourteenth Amendment extends constitutional law by preventing individual States from “enforcing any law which shall abridge the privileges or immunities of citizens of the United States”, and for the sake of clarity in this study will be assumed going forward in the discussion of both the First and Fifth Amendments.

[2] Laura Gilbert. “Who Should Pay for Public Art?”, September 8, 2015,

[3] Ibid.

[4] City of Oakland, Public Art Requirement Amendment, Ordinance 13275 C.M.S, December 2014.

[5] Ibid. Developershave the third option of allocating space in new developments for public art galleries, however the cause of action still considers this a taking of property.

[6] Koontz v. St John’s River Water Management, Florida Supreme Court (Fla., 2013)

[7] Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) As described the Nollan/Dolan test measures the proportionality and relatedness of takings to the impact of development and emerged out of the two cases cited.

[8] Building Industry Association – Bay Area v. City of Oakland, N. D. Cal (2016)

[9] Ibid.

[10] Christopher Caldwell, “Art for Politics’ Sake.” Commentary, February 1998, 55.

[11] Darin Moriki, “Oakland: Forum Spotlights Bay Area Affordable Housing Crisis”, Contra Costa Times, February 20, 2016

[12] Ehrlich v. City of Culver City, 911 P. 2d 429 Cal. Supreme Court (1996)

[13] Curtin, Daniel J.; Lindgren, Adam U. "Impact Fees After Dolan - Ehrlich v. City of Culver City." State and Local Law News, 19.4 (1995-1996): 3.

[14] Garner, Bryan A., and Henry Campbell Black.Black's Law Dictionary. (St. Paul, MN: West, 2009), 1157. Nonpublic forums, typically comprised of jails, schools, military bases, extend to other government funded institutions. In nonpublic forums governments are allowed to restrict content, but cannot impose viewpoint discrimination. For example, the government can restrict speech related to religion all together, but cannot discriminate between faiths, allowing the speech of one religion and not the other.

[15] Rust v. Sullivan, 500 U.S. 173 (1991) In this case the government speech doctrine was invoked to allow for the prohibition of abortion counseling at a government funded clinic.

[16] Hungerford, David. "Fallacy of Finley: Public Fora, Viewpoint Discrimination, and the NEA." U.C. Davis Law Review 33.1 (1999-2000): 268.

[17] Hungerford, "Fallacy of Finley”, 280.

[18] National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)

[19] Hungerford, "Fallacy of Finley”, 284.

[20] David Cole, "Beyond Unconstitutional Conditions: Charting Spheres of Neutrality in Government-Funded Speech." New York University Law Review, 67.4 (1992): 748.

[21] Cole, “Unconstitutional Conditions”, 703.