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Can San Diego's mayor and city council arbitrarily deny someone exhibit space in the lobby of city hall?

No, says City Attorney Jan Goldsmith in a May 4 legal opinion that suggests the city may have opened a Pandora's Box when it started allowing private groups to install lobby exhibits without the council having decided first on a policy regarding who gets to display what where.

"At this time, without an existing policy and given that the City has opened the exhibit space to the public, the City’s ability to deny a request for a display is very limited," says Goldsmith's memo.

"The City can prohibit unprotected speech (e.g., obscene or defamatory material) or reasonably regulate the manner in which materials are displayed (e.g., to not block walkways). "

But, warns Goldsmith, "Courts will invalidate regulations restricting speech if the government’s stated purpose for the regulations is merely a pretext for censorship."

The city attorney continues:

"There is no written policy that governs the exhibit space.

"A person or organization seeking to display an exhibit completes the City’s 'Request for Lobby Display' form with basic information including the title of the display and the number of items to be displayed and submits the form to the City for approval.

"The City permits one display at a time. Examples of past displays include displays sponsored by City departments, displays by civic organizations, and displays by local amateur artists."

But, adds Goldsmith, "by opening the exhibit space to the public as a place for expressive activity, the City has created a 'public forum,'" and therefore must obey the free speech provisions of the First Amendment.

If the council wants to ban content it thinks would inspire illegal activity, "the speech must be directed toward inciting or producing imminent lawless action, and be likely to produce such action."

"For example, a policy that prohibited advertising in bus shelters that 'might be interpreted as condoning or soliciting any unlawful act or conduct' was overbroad and likely unconstitutional."

Concludes Goldsmith: "We strongly recommend that the City examine its practice of open access to the lobby exhibit space and adopt a policy for the use of the space to avoid problems with administering the space in the future."

"Such a policy could impose content-neutral time, place and manner restrictions such as, for example, setting specific hours for the display, limiting the time period for the display, ensuring compliance with fire and building codes.

"Such a policy should also clearly prohibit unprotected speech."

The opinion doesn't say if a specific exhibitor's request sparked the mayor and council's query.

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