Atlanta Mural Crackdown Could Be Back | WABE 90.1 FM

Atlanta Mural Crackdown Could Be Back

Aug 28, 2017

Local artists are prepared to sue the city of Atlanta.  It's over proposed legislation to regulate art on private property that's visible to the public.  It would be the second lawsuit over murals this year.

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The ordinance would require artists to get approval from the city and neighborhood before they paint murals other people would have to live near.  Some artists said they're okay with that.

But, Peter Ferrari is not.  He already took the city to court once over the mural he painted at the corner of Jackson and Chamberlain Streets and others like it.  

Peter Ferrari sued the City of Atlanta to protect this mural he painted at the corner of Jackson and Chamberlain Streets as well as another one he painted on the same corner.
Credit Courtesy of Gerry Weber Law Offices

That lawsuit involved an old regulation that had been on the books for more than a decade.  It was never really enforced until a few months ago.  That's when the city told Ferrari and other artists they needed permits for their existing murals.  Otherwise, the city said, it could paint over them. 

So, the artists hired a lawyer. 

"Telling somebody that they have to go through any sort of body of the state before they can put art on their property, to me, is just sort of a glaring violation of the Constitution in general,” Ferarri said.

That first case ended in a settlement.  A judge effectively threw out the old mural law.

If the city enacts the new measure, Ferrari and his group said they'll sue again.

Ferrari said he's fine with getting community input on his work.  He just thinks formal permits are harmful to free speech and bad for business.  

"People are not going to be commissioning murals if they're going to have to go through the city," he said. "It would be a real hit to my livelihood."

But, what if the mural is of a humanoid alligator eating a shark?  

Councilmember Joyce Sheperd said her constituents complained a few years ago when a French artist painted that in their neighborhood.  That's around the time she began work on the new law.

"Whatever art goes into a community should absolutely have input from the community,” Sheperd said. “We know, in terms of First Amendment rights, that artists have rights, but at least the community should be notified."

Sheperd consulted arts leaders before she drafted her mural proposal, and a number of artists said they support her plan.

She said one reason it took several years to draft the ordinance is that she's been learning from related court cases.  Quite a few have popped up over the years, all the way to the U.S. Supreme Court.  Sheperd said her plan avoids the constitutional pitfalls other regulations have encountered.

But, WABE Legal Analyst Page Pate isn't so sure. 

“It's almost certain to bring another legal challenge,” he said. “The ordinance does appear to try to restrict or limit the free expression of ideas."

Pate said some elements of the measure are stronger than others.  For instance, the ordinance would let the city crack down on murals it considers traffic hazards, commercial speech, or obscene.  Those kinds of regulations have held up in past court cases, depending on how they're enforced.

But, the law would also take into account aesthetics and a recommendation from a Neighborhood Planning Unit, or NPU. 

"It's problematic because there really are no standards, and, if you have an NPU recommendation that they say is based on how it looks, but really is an attempt to regulate free speech, then you run into a concern,” Pate said.

How the city applies the new ordinance could determine whether it's constitutional, Pate added.  But, Ferrari and his group won't wait for the enforcement stage.  Their lawyer said they'll sue immediately if the city enacts the regulation.

On Tuesday the Atlanta City Council’s Community Development/Human Services Committee is scheduled to discuss the mural proposal.