First Amendment scholars weigh in on legality of Terminal Tower Biden Harris light display – cleveland.com

Posted: October 12, 2020 at 8:10 am

CLEVELAND, Ohio Two First Amendment scholars question whether the Biden-Harris light display projected onto Terminal Tower last Tuesday by the United Steelworkers violated city or state law as the the buildings owner contends.

And even if the display did violate local or state laws, the scholars said, the laws might be trumped by First Amendment protections of free speech given the unusual facts of the case that the display amounted to projected light and was in support of political candidates.

Cleveland.com and The Plain Dealer reached out to Kevin ONeill, associate professor at Cleveland State Universitys Cleveland-Marshall College of Law, and Andy Geronimo, a lecturer at Case Western Reserve University School of Law, to examine the debate over the displays legality.

Whats at issue?

The United Steelworkers claimed responsibility for the light display, projected ahead of the debate in Cleveland between President Donald Trump and former Vice President Joe Biden, and referencing Biden and his running mate, former Sen. Kamala Harris. The union also contends the display was legal.

Doug Price, CEO of the management group that owns Terminal Tower, told cleveland.com that the United Steelworkers projected the display without his companys permission and that city prosecutors subsequently provided him with three laws that prohibit such displays.

Prices company, K&D Management, cited those laws in a cease-and-desist letter sent to the union. They are:

*A city prohibition against posting or sticking any advertisement, poster, sign or handbill or placard of any description on any private building or structure without the owner or occupants permission. It also prohibits printing, marking, writing, printing or impressing or in any manner attach[ing] any notice or advertisement or the name of any commodity or thing or any trademark, symbol or figure of any kind upon anothers property without permission.

*A city criminal mischief law that, in part, prohibits people from moving, defacing, damaging, destroying, or otherwise improperly tampering with anothers property.

*A state law that requires most political communications to clearly identify the entity that issued them.

Cleveland.com and The Plain Dealer shared the three laws with Geronimo and ONeill.

What does Geronimo say?

Geronimo said the city laws K&D cited do not neatly address light projections such as the one displayed on Terminal Tower, and the incident demonstrates the difficulty of applying these ordinances to this kind of action.

The two city laws might not hold up in court because a judge might question whether the intangible nature of light is actually covered by those laws, which seem intended to address the physical overtaking of the building in a way thats irreversible.

Because this is light, its hard to say its damaging or destroying the building, he said. It is a very nuanced problem, and the laws as written now, and as courts have engaged with applying these laws, dont fit neatly to this problem.

The city could better address the issue by passing another law or amending current law to specifically include non-permanent light displays. But such a law would need to be crafted with First Amendment protections in mind, because it would be regulating free speech.

More generally, First Amendment violations would come into play if the police, a court or the city had tried to stop the union from displaying its message.

If K&D filed a nuisance or trespassing lawsuit against the union, the union might be able to successfully use its First Amendment protections as a defense.

In that case, the projectionist might say I have a free speech right and the state shouldnt use its power to order me to stop doing this under threat of criminal or civil penalty.

A constitutional question might also arise if police try to stop the projectionist while the projectionist is standing on public sidewalks or streets, which are often considered public forums.

If the projectionist was standing on private property, however, the owner of that property could report it to police as a trespassing complaint, which would allow police to legally remove the projectionist.

(A Steelworkers spokeswoman previously told cleveland.com she was unsure where the projectionist was standing when shining the light on Terminal Tower. Price previously told cleveland.com it appeared the source of the light was from one of the bridges over the Cuyahoga River.)

What does ONeill say?

I dont think a judge would see a problem with this, he said. If there were a [local law prohibiting this, the law] might be unconstitutional under the First Amendment. Whats the harm? Its simply the expression of light onto a faade.

ONeill noted that hes never encountered a First Amendment court challenge specifically related to light projections. But the first thing a lawyer or judge would want to know when considering such a case is whether a local ordinance prohibits the practice. If there isnt one, the light display would not be illegal.

If a local ordinance is in place, one would have to determine whether that law is unconstitutional, because it might very well be hard for the government to justify under existing First Amendment law.

To be considered constitutional, the local ordinance would likely need to be content-neutral, narrowly tailored to achieve a substantial government interest and also leave open ample alternative channels for communicating the message.

If Cleveland had a law specifically prohibiting the projection of a message or image onto a building, theres a chance a court would uphold it as constitutional, he said.

But theres also a chance a court would say such a law wasnt narrowly tailored, or that it takes away a novel method of expression that doesnt harm the public and, theres no significant or even important governmental interest that would be served by banning such expression.

What does the city say?

Cleveland spokeswoman Latoya Hunter Hayes did not respond to questions from cleveland.com and The Plain Dealer seeking confirmation that city prosecutors had provided Price with laws applicable to the case of the light display on Terminal Tower.

In an email, Hunter Hayes said only that projecting a light display sign on anothers property without the property owners permission, and without a permit when required, would violate city laws governing signs.

Obtaining a permit is the responsibility of a property owner, she said, but did not say whether a permit would have been needed by the United Steelworkers.

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First Amendment scholars weigh in on legality of Terminal Tower Biden Harris light display - cleveland.com

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