I love the idea of protected public space within the culture. National parks are the physical analog for the kind of thing I’m talking about: public libraries, public radio, monuments and murals of the type muralist Judy Baca calls “sites of public memory.” These are spaces of meaning freely available to each and every one of us, the king and commoner equally. For me, a livable society without them is unimaginable. This is a story about how the unimaginable is taking shape.
Protected public space has been getting scarcer and scarcer for the last few decades, certainly since the sea change of Reaganism. In 1980 the elevation to the U.S. presidency of this pure Hollywood product heralded the imminent expiration of the social contract prevailing since the New Deal of the 1930s. Today, in many parts of the country, people pinch pennies to send their kids to private school, having given up on mortally wounded public education; the diehards hold bake sales and raffles to pay for school supplies. Viewers pay for television, which now seems normal. A couple of weeks ago, there was even a news story about a soldier who’d been billed by the Army for the body armor that went missing in the chaos after he was wounded. (Read about it on CNN, and rejoice that the resulting scandal cancelled the bill.)
One of the largest and most repulsive encroachments on public cultural space is commercial advertising, which has now become so ubiquitous I half expect to hear a jingle every time I open the refrigerator. Try for a moment to imagine how life would be if every product you buy, every program you watch, every Web page you open and nearly every page of every periodical didn’t try to sell you something else while you were consuming it. Difficult to imagine? That’s understandable: total U.S. advertising revenue is projected to top $152 billion in 2006. This is just the cost of buying advertising time and space in print, broadcast, online and other media; it doesn’t take in the humongous cost of producing all the material in the first place.
One of my favorite policy proposals for supporting access and creation in the real live arts is a small tax on advertising revenues. Just a penny on every one of those dollars spent to place advertising would generate a fund of $1.5 billion, twelve times the current National Endowment for the Arts budget.
Now comes Clear Channel, a Fortune 500 advertising company valued at $20 billion (from global radio, TV and outdoor advertising), to proclaim an end to protected public cultural space. In 1998, an advertising company since bought out by Clear Channel won a court ruling that it was unconstitutional for the city of Portland, Oregon, to regulate billboards but not murals, thus erasing the legal distinction between art and signage. (For its trouble, the judge also awarded Clear Channel judgments and court costs amounting to $1 million, still tied up in litigation.)
This decision effectively created a six-year moratorium on community murals. Murals were to be treated as signs. To apply for a waiver of the signage code to permit a mural, artists and their community sponsors had to put up a fee of $1,400 (which they would lose if the application were denied). The City tried to wire around the court decision by creating a special status for public art whereby City authorization to create murals would be contingent on the owner of the wall deeding the mural to the City, effectively making it part of the city art collection. As such, murals would be exempt from sign ordinances. Inventive (if imperfect), but as it turned out, not all property owners were willing to enter into this type of relationship with the city, and several proposed projects went down over the lack of a signed easement from the property owner.
Even this highly restrictive compromise did not satisfy Clear Channel. Declaring the City’s new policy part of a “jihad” against sign companies, the corporation went back to court, claiming the new program violated the Constitution by favoring “art over other types of painted wall signs.” Local muralists (who obviously hold a stake in the decision) are trying to have a voice in the court case, which is finally set to come to trial next month. Clear Channel has objected to having artists represented in the case. A good article on the matter from Portland muralists details Clear Channel’s censorship of expression even in paid advertising, refusing to rent billboard space to progressive causes.
The article ends with a series of questions about why Clear Channel is fighting so hard to defeat community murals. I’m sure the corporation’s attorneys have a full array of whiplash-inducing arguments about protecting their client’s free speech, but truly, does Clear Channel need a reason? Like the old joke says: “Where does the 800-pound gorilla sleep? Anywhere it wants.”
There could hardly be a clearer expression of the conflict between freedom of expression and the rampant commercialization of absolutely everything, a different type of culture war, one that protected public space seems to be losing. Michael Schwartz, the Philadelphia muralist who alerted me to this issue, puts it succinctly: “I do not think murals are the only place where grassroots democracy is practiced, but I see it as being an important distinction between signs or billboards.”
Calling attention to Clear Channel’s destructive greed might help, so spread it around. You might also want to write to Clear Channel’s CEO, Mark P. Mays: markmays @clearchannel.com. For more information, contact portlandmuraldefense @yahoo.com.
Dear Arlene,
Thank you for posting this article. I have been in touch with Michael Schwartz about this issue and he had some helpful suggestions. There was a trial, AK Media (Clear Channel) v City of Portland scheduled for April 12, 2006. It has been rescheduled for October 2nd, 2006 at the Multnomah County Courthouse, Portland Oregon. I have been allowed to intervene in the case as a mural artist with the ability to call witnesses etc. I filed a trial brief on February 28th and I am waiting for Clear Channel’s response. The Billboard companies won a huge lawsuit last week in the Oregon Supreme Court (Outdoor Media Dimensions) and Clear Channel was all over it. The decision invalidates a distinction allowed in the Federal Highway beautification Act between on and off premises signs. It also invalidated the permit process for signs of all types so it may be a free for all for billboards until the Oregon Legislature acts.
We are moving ahead with our case for public art but we are running against a tide of case law affirming corporate personhood and trivializing individual rights of expression.
Thanks again for your concern. Joe Cotter
Dear mural artists and supporters,
The Clear Channel trial actually did provide a forum for Portland area mural artists and arts advocates to express themselves about the differences between murals and billboards. It turned out to be a lesson in media, the different constituencies expressing themselves through public art and billboards, the mural process, the use of murals to express political and social concerns and the fact that billboards are all about the money. We are hoping that this effort may result in some real change in the coming months and years.
There was a pretrial hearing on September 21st and the City filed some pretrial motions that were approved by Judge Michael H. Marcus. Clear Channel’s case was limited and the mural program removed from constitutional scrutiny by the decision. Unfortunately, my case was decimated by the rulings as well. I offered to withdraw as a party because I could no longer see how the case I was planning to present was viable anymore. Judge Marcus encouraged me to think it over. Fortunately I stayed in the trial.
The trial commenced Monday. I had already filed a motion to reconsider the ruling to limit the evidence but the judge once again ruled against me. Over the next day and a half, I managed to construct a foundation to call witnesses by eliciting favorable
testimony from the City and Clear Channel witnesses during cross examination.
We were finally able to put on a case at the Clear Channel trial. I found out on Wednesday morning at 10:30 a.m. that we would be able to call witnesses and introduce evidence. We had several people waiting for a phone call and willing to testify. Kathy Oliver, Director of Outside In was the first to testify. Jenny Joyce and Kolieha Bush, both mural artists, testified and then Gideon Hughes, speaking of an earlier PCASC (Portland Central America Solidarity Committee) mural (1988) on the Riverway Inn was next. Gideon was followed by Isaka Shamsud-Din, a retired professor at Portland State University and nationally recognized mural artist who was followed by me.
Thursday morning, John Frohnmayer, former head of the National Endowment for the Arts and former Oregon Arts Commission member testified and then Henry Sayre, a professor at Oregon State University in Bend and author of art text books and other books as well as a 10 part series on OPB television.
The testimony of the witnesses for art was very well presented we managed to get most of our points on the record. All of the witnesses complemented one another. Isaka Shamsud-Din’s testimony was riveting and John Frohnmayer and Henry Sayre’s presence went a long way to add legitimacy to our effort with the other parties.
By the way, Isaka, Hector Hernandez, Baba Wague Diakite and I are painting an 1800 square foot mural on the south wall of the Musicians Union on NE 20th between Burnside and Sandy. Isaka Shamsud-Din is the coordinator. We hope to be finished in a week or so.
Our closing arguments are scheduled for November 30, 2006. We are encouraging people to attend. Room 538, Multnomah County Courthouse, Portland.
I want to thank everyone who has worked to get the word out about the mural issue in Portland. In particular, I want to thank Joanne Oleksiak of Portland Mural Defense for the incredible amount of work she has put into this effort over the years. I also want to thank and acknowledge the witnesses and those who were willing to be witnesses but were unable to be called due to the twists and turns in the trial. I can’t thank you enough. That includes the people who were willing to travel to Portland to support this effort and those who provided a venue for us to address this issue as well. Thank you. A special thanks to Susan and Mac at Ash Creek Press and Kathy Oliver at Outside In. You too Mark! And I can’t forget the sign counters, Robin, Gideon and Rin. Actually, the list is very long and I thank you all from the bottom of my heart!
Finally, the fact that we were able to get on record is a step in the right direction but only a step. Nothing is likely to change legally as a result of this phase of the trial and we’ll see what the judge’s opinion says and what the Portland City Council is willing to do. The climate for mural painting has improved since murals and other art in the public forum were first reclassified as signs in 1998 but it is a far cry from what the City of Portland says it stands for and it is unacceptable as a permanent solution. So, please keep the word out. This is a good time to write the Mayor, the City Commissioners and the various media outlets. Maybe we can finally achieve real support for murals in Portland.
Thank you and Peace. Joe Cotter, Portland Mural Defense
Closing (oral) arguments in this case will be presented by all three parties on March 22, 2007 at 9:00 am, in Multnomah County Court in downtown Portland.
Please join us in the courtroom for a summation of the issues (and meet some great Portland mural artists, while you are there!).
Judge Marcus’ decision will come some months after these last oral arguments.
Please contact Portland Mural Defense for more information.
Here is the e-mail address for Portland Mural Defense (see below) if you’d like information about the Clear Channel v City of Portland (murals) case.
PMD is a not-for-profit arts advocacy project.
We represent concerned citizens who are concerned about the terrible lack of independent voices represented by our US media, particularly outdoor media.
Billboards are impossible for the public to avoid.
You can’t change the channel, turn it off, or shut your eyes.
In the end- the biggest question is : “Who gets to speak in public?”
More and more the answer is “multinational corporations”.
If you have ideas to share, or are just curious about where things stand now, please write to us.
And, thank you, Arlene, for keeping up on the Portland mural scene!
Portland Mural Defense
Box 33098
Portland, OR 97292-3098
portlandmuraldefense@yahoo.com
The closing arguments at the Clear Channel v City of Portland trial will take place at the Multnomah County Courthouse on Thursday, March 22nd at 9:30 a.m. in Room 538. The parties are Clear Channel as well asThe City of Portland and I will be arguing from the artist’s point of view. There are some new developments in the case. I hope to come back to the Portland City Council before long to discuss revisiting the rules for art in the public realm.
I will post the outcomeof the hearing tomorrow.
Thank you, Joe Cotter, Portland Mural Defense
[…] More than a year ago, I wrote about a court case in Portland, Oregon. A mega-corporate billboard company claimed that it was unconstitutional for the city of Portland, Oregon, to regulate billboards but not murals, thus erasing the legal distinction between art and signage. Astoundingly, they won a decision and damages, and community murals started being officially treated like billboards, with a chilling effect on community-based public art. After a long string of appeals, the arguments made by Joe Cotter, who was permitted to intervene as a friend of murals, have prevailed. Here’s a bit from Judge Michael Marcus’s May 8th opinion: The intervener’s evidence demonstrated a number of ways in which the channel of communication that is characterized by mural art is vastly distinct from the channel of communication that is characterized by standardized billboard posters and bulletins. There are substantial differences in the manner of production and distribution, the expected duration and permanency, and, at least potentially, in the relationship between the owner of the surface and the persons and entity who apply media to that surface. It is easy to predict how attempts to articulate regulatory definitions might stray into prohibited distinctions based on content. There may be challenges in avoiding content-based regulations with respect to wall murals whose proponents wish to employ them for commercial purposes. But nothing in this court’s Opinions say that the City cannot attempt to free wall murals from sign regulations in ways that do not depend on the content of the message displayed. […]
A mural or a sign? Portland’s battle may visit Manzanita
I am one of many concerned citizens here in a village fewer than 1000 (officially) – caused by a new draft sign ordinance from the Manzanita Planning Commission. There are numerous local “signs” (actually murals, art paintings or objects, painted or cast metal benches) that would appear be banned by this draft ordinance.
I hope the Commission here will see the error of its ways a week from Monday, when they hear public input … but they may not. They have not even attempted so far to save art from bans on commercial signage.
We would very much appreciate help and guidance … key arguments, good articles, bumper stickers, legal briefs, and contact info for Joe Cotter and the expert witnesses (like John Frohnmayer) who came to Judge Marcus’ courtroom.
All assistance would be greatly appreciated.
Stewart Martin and others
[…] April and October of 2006, muralist Joe Cotter responded to a post from Arlene Goldbard with some great insights into the long running AK Media (Clear Channel) v City of Portland suit, in […]