Conservative street mural rejections amid ‘Black Lives Matter’ approvals spur free-speech lawsuits

Scott LoBaido has a message for the New York City officials who told him to remove the bright blue line he painted on Hylan Boulevard in Staten Island: See you in court.

Mr. LoBaido said Monday he will pursue legal action after the New York City Department of Transportation ordered him to remove his handiwork. He insists his pro-police message has every bit as much right to adorn the streets as the Black Lives Matter murals embraced by Mayor Bill de Blasio.

“As an artist, I think it’s beautiful work, but [Mr. de Blasio] did not have a permit to do his street art, and that obviously means that I do not need a permit to do mine. Why should he get a pass and not me?” Mr. LoBaido said. “Obviously, they singled out me because I’m a conservative-leaning artist and I do support my military and the men and women in blue uniform.”

Like Mr. LoBaido, conservatives seeking to paint pro-police, pro-life and other right-tilting messages on America’s streets are running into speed bumps from local officials, even those who allow massive Black Lives Matter murals.

Michael Bekesha, senior attorney for Judicial Watch, said the legal term for that is viewpoint discrimination.

“It appears as though cities across the country have recognized street painting as a public forum,” Mr. Bekesha said. “And once a government does that, it has to make sure there are processes in place to allow all messages. Cities can’t discriminate based on viewpoint.”

The lawsuits are piling up. Judicial Watch took legal action last month against D.C. Mayor Muriel Bowser after city officials stiff-armed the group’s request for a permit to paint the Judicial Watch motto “Because No One Is Above the Law” near its headquarters on Independence Avenue Southwest.

Miss Bowser oversaw the June 5 creation of the Black Lives Matter mural on 16th Street Northwest. The next day, activists painted “Defund the Police” next to it, creating the message “Black Lives Matter = Defund the Police.”

The activists did not obtain a permit, and D.C. Attorney General Karl Racine said in his July 27 motion to dismiss the Judicial Watch lawsuit that there is no such permit. He categorized the 16th Street Northwest display as a form of public art, not expressive messaging.

“[T]he District’s selection of art to display in public places is a form of government speech that is not subject to First Amendment scrutiny,” the motion reads. “And even if the District did create a forum for public expression, it has not engaged in viewpoint discrimination by denying plaintiff’s request for a permit to paint a mural on a District street because no such permit exists.”

Last week, D.C. police blocked Students for Life of America from painting “Black Preborn Lives Matter” in front of the Planned Parenthood clinic on Fourth Street Northwest and arrested two activists for chalking on the sidewalk.

The group said it had verbal permission from the city, but police said the Metropolitan Police Department “did not issue a permit to paint a message on the street.”

’Transcends politics’

In New York City, several groups, including Blue Lives Matter, Women for America First and Judicial Watch, have sought to paint their own murals, but Mr. de Blasio argued that the Black Lives Matter message “transcends any notion of politics.”

“I don’t think it’s a political message in the traditional sense,” Mr. de Blasio said at a July 23 press conference. “I think it’s a message about human respect and the value of human beings and addressing the fact that one group amongst us in particular has been devalued for centuries, and that can’t go on.”

The New York Post headline: “De Blasio says Black Lives Matter matters more than all other groups.”

Mr. de Blasio admitted last week that he bypassed the permitting process when approving Black Lives Matter murals in eight locations: three in Manhattan, including one in front of Trump Tower, two in Brooklyn, and one each in Queens, the Bronx and Staten Island.

“That is something again that transcends all normal realities because we are in a moment in history where this had to be said and done, and that’s a decision I made,” he said at an Aug. 3 briefing. “But the normal process continues for anyone who wants to apply.”

Mr. LoBaido argued that his blue line, which runs about 850 feet in front of the 122nd Precinct on Staten Island, isn’t political, either.

“That blue line represents two things: It separates anarchy from civilization, and most important, it memorializes the men and women who have made the ultimate sacrifice defending and protecting our community,” Mr. LoBaido said. “Is that a political message? No. It’s an artistic tribute.”

“Black Lives Matter” became a rallying cry after the May 25 death of George Floyd in Minneapolis police custody, but Black Lives Matter is also an organization founded by three left-wing activists, two of whom are “trained Marxists,” as co-founder Patrisse Cullors said in a 2015 interview.

The highly decentralized Black Lives Matter movement has taken a host of left-wing policy positions such as defunding the police, increasing social services and eliminating cash bail.

“The BLM movement is for all practical purposes affiliated with the Democratic Party, notwithstanding expressions of frustration by BLM activists with the leadership of that party,” the pro-Trump Women for America First said in its July 24 lawsuit. “BLM is unquestionably hostile to the Republican Party and in particular to President Donald J. Trump.”

The conservative street-painters have met in some cases with pushback by Black Lives Matter activists. Mr. LoBaido’s blue line has been vandalized at least once by a protester who said she found it “very offensive,” as shown in video on the Staten Island Advance website.

In Tampa, Florida, city officials oversaw the creation of six “unity murals” with the Black Lives Matter message but scolded a pro-police group for painting “Back the Blue” in front of police headquarters. Group leaders said they had permission, but the city claimed they had not completed the permitting process.

“The Tampa Police Department expects everyone to express themselves in a lawful manner,” Tampa Police Chief Brian Dugan said in a press release. “Murals painted in the city roadway need to be approved. We will continue to work with any group to make sure their first amendment rights are heard.”

Local BLM activists are pushing to have the mural removed.

“When an openly racist slogan is painted illegally in the streets of a city stricken by police brutality, it should be destroyed,” said a Change.org petition started by Victoria Zamitalo.

The mural has since been splattered with tar, but Back the Blue Florida’s Audra Christian said the organization hopes to receive permission soon to repair the damage.

“We just want to show law enforcement we appreciate them. That’s all,” said Ms. Christian. She said the group has more than 6,000 members.

What strikes Mr. LoBaido as particularly unfair is that the Department of Transportation told him to remove his 850-foot blue line but hasn’t made the same request of the protesters who defaced public buildings with graffiti, nor of those who participated in painting the Black Lives Matter mural.

“I will not be removing that blue line until the mayor removes his artwork and the individuals they have on firm remove their [graffiti] artwork,” Mr. LoBaido said. “You know who’s removing the artwork? The taxpayer, the city. Nobody else has removed their artwork.”

The feud with the city inspired his latest work: a painting of a blown-up Department of Transportation letter with himself painting a thin blue line across it. He auctioned off the piece online and said it raised more than $10,000. He said he plans to donate the money to the NYC Cops and Kids Boxing Club.

Mr. LoBaido said he has tried to keep his thin blue line in good repair.

“In fact, I’m going to go sweep it with a nice broom where the blue line is,” said Mr. LoBaido. “And if it’s faded at all, I’ll just repaint it until further notice.”