The Black Lives Matter and We Can’t Breathe street mural proposals will be presented to the Chestertown Town Council on Monday, August 10th, at 7:30 pm.
For several weeks the proposals have dominated discussions throughout the community and have garnered widespread support and criticism.
One concern especially has been brought to the fore: what are the legal ramifications of a painted mural on a town street, and does it open a Pandora’s box of claims for equal representation by other organizations?
As with most cases in Chestertown, an expert in first amendment rights was just around the corner.
The Spy has turned to attorney and Chestertown resident Jim Astrachan to frame the mural proposal in a town law and Constitutional context. He neither promotes nor dismisses the idea, but offers scenarios using the legal principle of government speech doctrine. In other words, the Free Speech Clause of the 1st Amendment does not restrict government speech.
Consequently, the Town could accept the mural proposals and make the BLM murals a government statement. But where does a street mural fit into legal precedents, and if the mural was to become government speech, what legal challenges could be presented?
During a more extended overview of Constitutional issues, Astrachan offers some insight into how the mural project might proceed, its potential challenges, and an interesting alternative.
Jim is a partner at Astrachan Gunst Thomas in Baltimore and professor of Law at Baltimore University and speaks nationwide on intellectual copyright, property topics, including advertising law, branding, trademark protection and copyright protection. He is the author of The Law of Advertising and Mass Communications.
This video is approximately six minutes in length
Alice Marie Barron says
Very much enjoyed listening and watching the video of Jim Astrachan. Great presentation. I’m suggesting the word RESPECT be painted as it seems that’s what’s missing in the whole discussion. RESPECT covers all!!
Ron Jordan says
Jim,the law is clear, so what. Civil rights and civil disobedience is about protest, a constitutional right. Those that oppose the mural are looking at the law. The law is wrong and Jim you are wrong in taking your stance by the law and hiding behind it, instead of doing what is correct and moral. Who cares what the law is, standing on the right side of history is more important. Did John Lewis and MLK break the law when they walked across the bridge, did they turn around and go back to where they came from as the Sheriff told them too, he was right, he was the law. Funny, Jim, if they hadn’t stood and allow themselves to be beaten, I wouldn’t be here to tell you are wrong and the law is correct but the important thing is what is the right thing to do in moving against a town with a racist past that is now being exposed and others are willing to deal with the past to make a better future for our children. Jim, what say you, now?
Bob Ingersoll says
Ron,
Jim actually said that the part of the law that permits government speech is unsettled as defined concerning the permanent vs. temporary nature of the speech. We should try to get the Town to vote it in as “temporary” government speech, and see if anyone opposes it in court. It would clearly draw the lines of who is in opposition to a temporary statement of opinion, who in the Town council is opposed to a temporary “monument”, and open up the conversation on relevant grounds, i.e. “Do Black Lives Matter?” Is the Town willing to make a statement of their opinion, and support a movement that has grown worldwide, or do we reside behind this Nation’s pitiful past record that systemically uses the law to keep Black Lives Irrelevant.
Ron says
Alice, if respect was the operative word in these discussions, then there wouldn’t be any need for these discussions, for protests and for those who have died. Racism, Bigotry, discrimination is about disrespect and Chestertown and the Eastern Shore are guilty on all counts. One gets respect by showing it with actions, starting with love.
Beverly Smith says
Ron Jordan is correct in his response. I am sorry to say that those who are opposing the murals seem to be disregarding the purpose of the murals. They are to illustrate that Chestertown respects African American rights and supports the fight for the equal justice. As Ron Jordan says where would we be without Martin Luther King and John Lewis showing the way.
Chestertown is not alone in having a history of racism and it is time to recognize this and to change the culture. Does Chestertown want to be known as living in the past and supporting racism? I hope not.
I support the signs but they are still only a token of what needs to happen for real social justice. At least the murals will give us something to think about and to continue the dialogue to find substantive solutions.
Mary Lou says
This is answering the wrong question. Hundreds of towns have made the statement Black Lives Matter. Some have painted it on their streets. It’s not a matter of supporting an organization or a political stance. It’s a moral statement that Black Lives Matter. The mural has been proposed by members of the Chestertown community. It’s not politics. Given our history do black lives matter? Given our history shouldn’t we say it?
Rudolph Jenkins says
If it was not about the organization “Black Lives Matter”, why try to identify with very name of the organization. It would be like saying “Trump for President” but we don’t mean the organization called “Trump for President” that everyone thinks of when they hear, we mean something else. Instead of insulting everyone’s intelligence, Why not say, “ALL Black Lives Matter”? That would have still conveyed the same point but would have made a distinction between the organization that calls itself by that name and the slogan itself. The logical conclusion is that town has no quibbles with the organization whose name they are borrowing and its Marxist goals.
Beryl Smith says
I strongly support the message of BLM but think that instead of being a “metoo” community that copies what was a great idea in DC we should be focused on education. People–all people–need to be educated about the history that is all too often forgotten in the moment. Treatment, discrimination, attacks, and all the wrongs of th past need to be recounted for all to see, hear, read, and ultimately know. Don’t be complacent about thinking that painting the street will make things right. It won’t.
PAULA B REEDER says
Very rarely do cases addressing similar legal issues “fall squarely within the parameters” of a precedent setting legal case. This reality is, no doubt, why Mr. Astrachan allows that any challenge to the proposed Chestertown Black Lives Matter murals as non-permanent monuments would probably not pass muster in the courts. Numerous other jurisdictions around the country have decided that the presence and underlying message of Black Lives Matter street murals is sufficiently warranted as a local govenment endorsed statement of community values, that they have approved installation of these murals on public streets in their communities with the conviction that their decision will withstand any such challenge.
Hopefully, our local governent officals who are being asked to approve two murals on public streets in Chestertown – including one that is proposed to be painted on a public street in a predominately black neighborhood that, notably, has not received one iota of negative public comment – will share the courage of conviction exhibited by other communities that a vote in favor of installation of these mural is absolutely the right, just and timely thing to do.
The bottom line in this debate is that Town approval of this proposal will unquestionably do more good than harm by acknowledging decades of oppression and discrimination experienced by people of color in Chestertown and Kent County and recognizing people of color who reside here today as valued, equal and appreciated members of our community. Every objection voiced, statement to the contrary and sabre rattling threat of ill-willed legal action is simply extraneous hyper-amplified flim-flam touted by individuals opposed to change and equanimity.
Ben Tilghman says
Mr. Astrachan may be unfamiliar with the case of Pulphus v. Ayers (2017), which recognized a painting included in a temporary exhibition as government speech. I am not a legal scholar, but the article linked below indicates that Pulphus v Ayers extends government speech status that to temporary artworks such as the proposed murals.
https://mtsu.edu/first-amendment/article/978/art-censorship
Tom Steele says
It’s nice to have the legal perspective on this, but the question of legality isn’t the issue. The BLM mural has become a litmus test for how far (or how little) Kent county has come since the Civil Rights Act. Sadly, from what I’ve seen portrayed in the comments section of this and other stories, the answer is “not far”. Racism is still *very* strong; the only lesson learned is how to better dress it up.
Randall says
Why not a mural that says, “YOUR LIFE MATTERS,” which holds accountability and responsibility toward every individual? Love your neighbor as yourself.