In a ruling Nov. 18, Southern District of Indiana Judge Sarah Evans Barker prohibited the delay of the IU chapter of Turning Point USA’s application process for an “All Lives Matter” mural. Barker did not order the city to allow the mural to be painted, but city officials must reconsider the mural application without discrimination.
The city must also make the procedures to request approval to display public art using the city’s rights of way publicly known by Jan. 2, 2023.
This order is part of a preliminary injunction Barker granted in Indiana Univ. Chapter of Turning Point USA v. City of Bloomington.
The Lawsuit
In February of 2022, IU student Kyle Reynolds and the IU chapter of Turning Point USA sued Bloomington after city officials refused to approve their request for an “All Lives Matter” mural to be painted downtown.
Reynolds, a campus coordinator for the conservative nonprofit organization Turning Point USA, reached out to IU administrators to propose a 15-by-145-foot mural to be painted on East Kirkwood Avenue near the Sample Gates, in front of the Von Lee building. The proposed design includes the words “All Lives Matter” with blue and red lines to support first responders, according to the complaint filed by Reynolds and the organization.
According to the lawsuit, “Black Lives Matter” is contradictory to Reynolds’ core principles, and he wanted to express his own view: “All Lives Matter”.
“We wanted to create a mural particularly to voice our opposition to the national Black Lives Matter movement, which we find to be represented nearly ubiquitously on campus,” Reynolds said. “We did find that there wasn’t much opportunity for other viewpoints on campus, and we wanted to let students of all creeds and colors on campus know that we felt that all lives matter.”
There are three murals in Bloomington containing the phrase “Black Lives Matter,” two murals were put up by the city and one was painted by IU students and volunteers. All murals were approved by the Bloomington Board of Public Works. The board makes all the decisions regarding the public right of way — land reserved for pedestrian and vehicle traffic including sidewalks and streets located on city property.
Related: [Bloomington City Council endorses two BLM street murals to be installed in October]
Reynolds said he received approval from IU Capital Planning and Facilities Vice President Thomas Morrison for the proposed "All Lives Matter” mural’s location on campus, size and graphic via email in July 2021. Morrison recommended that Reynolds contact the City of Bloomington.
Reynolds contacted the City’s Department of Public Works Director Adam Wason and city attorney Mike Rouker who told him in an email in August 2021 that the city was not considering adding additional art in its public right of way at the time and does not take art recommendations from individuals.
At a meeting Aug. 3, 2021, the Board of Public Works approved the “Black Lives Matter” mural on Eagleson Avenue, which had already been painted in July 2021. The project was led by Joa'Quinn Griffin and Tiera Howleit, the founder of IU Black Collegians.
Related: [Black Voices: Black Lives Matter mural brings IU, Bloomington community together during its reveal]
According to the lawsuit, Wason authorized the "Black Lives Matter” mural on Eagleson Avenue without approval from the Board, and the Board approved the mural after Reynolds contacted Wason about the "All Lives Matter” street painting.
The City of Bloomington, Wason and board members Kyla Cox Deckard, Beth Hollingsworth and Dana Henke are listed as defendants in the lawsuit.
Reynolds claimed the board engaged in viewpoint discrimination when they approved the “Black Lives Matter” mural and rejected the “All Lives Matter” mural.
Viewpoint discrimination occurs when the government restricts speech based on the perspective or opinion it expresses, violating the First Amendment’s free speech clause.
The plaintiffs, Reynolds and Turning Point USA, also accused the city of violating the right to speak, write or print freely on any subject and the guarantee that the government will treat all citizens equally outlined in Indiana’s Constitution.
“We found that they really created a public forum and that we had a right to participate in that forum the same as any other group in the city,” Reynolds said. “We don't believe that any viewpoint should be censored particularly by a government organization.”
Zackary Dunivin, a doctoral student in sociology and complex systems at IU and author of a research paper on Black Lives Matter protests, said the city should be able to refuse or accept murals based on their content. The city has the right to express messages that reflect its own values, Dunivin said.
“This is all about values, and my feeling is that an ‘All Lives Matter’ mural is a racist hate symbol,” Dunivin said. “It is clear that ‘All Lives Matter’ was always intended as a counter-movement to Black Lives Matter movement, and it is deliberately intended to diminish it. You could make some sort of mural that communicate the idea that all lives matter, but as soon as you put that slogan on it, it's very clear what that represents.”
Related: [IU research indicates Black Lives Matter protests shift public discourse]
The Preliminary Injunction
The case, originally under the jurisdiction of the Monroe County Circuit Court, was removed to a federal court March 9 at the request of the defendants because it involves U.S. constitutional questions about free speech and due process.
On March 10, the plaintiffs renewed a motion for a preliminary injunction they requested in their lawsuit. A preliminary injunction is a temporary order made by a court at the early stages of a lawsuit at the request of one party prohibiting the other party from doing a disputed act. It is granted if the requesting party has a reasonable likelihood of success in trial.
The plaintiffs asked the court to require the defendants to permit the plaintiffs to paint the "All Lives Matter” mural and prevent the defendants from enforcing their policies in a content- and viewpoint-discriminatory manner.
Barker granted the injunction to the extent that the plaintiffs must be permitted to take part in the application process to seek approval to display public art in the same way other private groups have been allowed to.
Barker concluded the “Black Lives Matter” murals were government speech, meaning the government can say what it wishes when it is expressing its own message. However, the city has approved other public arts projects, including an art display by Middle Way House in 2021 and multiple street painting parties in 2018 and 2017 by private neighborhood associations, which were not government speech.
Related: [Bloomington receives perfect score on Human Rights Campaign’s Municipal Equality Index]
Because these projects are considered private expression, the street art program and public streets are limited public forums for promoting private speech, and the city cannot discriminate based on viewpoint.
The government does not need to permit all expression on its own property and can impose content-based regulations, but once it creates a forum for private speech on its property, it can’t engage in viewpoint discrimination.
In the analysis, Barker cited the inaccuracy of Rouker’s reason for the city’s denial of the "All Lives Matter” mural and the fact that the mural contradicts the city’s view - “Black Lives Matter”. The city denied the plaintiff’s access to the application process even though their request was comparable to previously approved requests from other private groups.
This is likely unconstitutional, Barker concluded, and therefore the city must reconsider the plaintiff’s application without viewpoint discrimination.
