While he is paid by the city, and it is part of his job, one has to feel something approaching sympathy for the guy trying to defend the city’s regulation of art works, before the undeniably crusty dean of U.S. District Court in New Orleans, Martin Feldman.
The judge ruled, correctly we think, that the city’s rules for preapproval of the content of public murals is unconstitutional. But before that, he peppered city attorney Corwin St. Raymond with questions about the law.
“Why even regulate murals?” the judge mused.
It’s a good question.
Among the legal problems is the obvious vagueness of how the city determines whether a mural is art or simply an advertisement masquerading as art.
Feldman’s order prevents the city from enforcing its permitting rules, noting that "injunctions protecting First Amendment freedoms are always in the public interest."
The judge, 85, was an appointee of President Ronald Reagan and among other prestigious posts has been a judge overseeing the secret warrants for investigations into national security matters. Feldman, though, was at pains to point out that this First Amendment case did not bear on his politics or that of the president, who was lampooned in November 2017 when a developer named Neal Morris gave permission to a street artist named Cashy D to produce a mural on his South Liberty Street property.
Cashy D used block letters to quote President Donald Trump's infamous comments about groping women; the painting included a nude female torso and a so-called “Pussyhat,” a pink knitted cap some women wore to protest Trump's 2017 inauguration.
The city cited Morris for not having received official permission for the artwork in advance, threatening him with a fine and even jail time. The American Civil Liberties Union of Louisiana galloped to his aid, suing the city on his behalf. Morris draped the offending mural with a tarp repeatedly stenciled with the word "censored."
As, indeed, the city tried to do. That is contrary to many years of First Amendment law.
Why even regulate murals? The interest that the city of New Orleans has in signage is based on a tourism economy. But regulation of commercial signs is not the same thing as setting up a bureaucratic process to oversee murals.
When the content of signage is the issue, the U.S. Constitution says that government shall make no law infringing on free speech. Tacky or not, the mural in question was unquestionably a case of free speech in action.
Pity the poor lawyer trying to overturn that precedent. Judge Feldman ruled correctly.