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19 Fulton Street, Suite 407

New York, NY 10038
tel: (212) 807-6222
fax: (212) 807-6245
e-mail: ncac@ncac.org
web: www.ncac.org

Joan E. Bertin
Executive Director

NCAC PARTICIPATING
ORGANIZATIONS
Actors Equity Association
American Association of
School Administrators
American Association of
University Professors
American Association of
University Women
American Booksellers
for Free Expression
American Civil Liberties Union
American Ethical Union
American Federation of Teachers
American Jewish Committee
American Library Association
American Literary Translators
Association
American Orthopsychiatric Association
American Society of Journalists

Grace Crunican, General Manager

San Francisco Bay Area Rapid Transit District (BART)
P.O. Box 12688
Oakland, CA 94604-2688
gcrunic@bart.gov

& Authors
Americans United for Separation of
Church & State
Association of American Publishers
Authors Guild
Catholics for Choice
Childrens Literature Association
College Art Association

BART Board of Directors

P.O. Box 12688
Oakland, CA 94604-2688
BoardofDirectors@bart.gov

Comic Book Legal Defense Fund

The Creative Coalition
Directors Guild of America
Dramatists Guild of America
First Amendment Lawyers Association
International Reading Association
Lambda Legal

December 4, 2015

Modern Language Association

National Center for Science Education
National Communication Association
National Council for the Social Studies

Ms. Crunican and Directors,

We are writing to express concern regarding the decision by San Francisco Bay
Area Rapid Transit (BART) to deny a permit to exhibit artwork by artist and art
professor Victor De La Rosa, selected for the San Francisco Planning
Department Mission Street Art on MUNI Series. The decision appears to be
based on the political viewpoint and message of the work, which raises serious
First Amendment concerns.

National Council of Churches

National Council of Jewish Women
National Council of Teachers of English
National Education Association
National Youth Rights Association
The Newspaper Guild/CWA
PEN American Center
People for the American Way
Planned Parenthood Federation
of America
Project Censored

It is our understanding that De La Rosa was one of five artists selected in

February 2015 for inclusion in the series. The open call sought artists who
represent the distinct identity of Mission Street, and offered to temporarily
display their artwork at the 16th Street Plaza, as well as the exterior and interior
of MUNI vehicles that travel through the Mission District.

SAG-AFTRA
Sexuality Information & Education
Council of the U.S.
Society of Childrens Book Writers
& Illustrators
Student Press Law Center
Union for Reform Judaism
Union of Democratic Intellectuals

In August, De La Rosa finished his piece, entitled: La Gente De Tu Barrio / The

People of Your Neighborhood [The Mission Suite]. It consists of four textile
posters portraying local residents Sarah, Jesse, Paul & Mickey surrounded

Unitarian Universalist Association

United Church of Christ
Office of Communication
United Methodist Church
United Methodist Communications
Womens American ORT
Woodhull Sexual Freedom Alliance
Writers Guild of America, East
Writers Guild of America, West

by text based on quotes De La Rosa overheard in the Mission or on stories told by the residents
in the portraits.
The Planning Department shared the art with BART, which holds the permit rights for the 16th
Street Plaza. BART denied a permit to display the work because one of the four posters,
Mickey, has text (drawn from a story Mickey herself told the artist) that refers to social tensions
between new and old residents of the Mission. BART appears to have rejected the piece and
refused an offer to change specific language because of the overall demeaning tone of the
message in that panel, according to a statement by BARTs Media Relations Manager.1
It appears that BART officials are engaging in viewpoint discrimination by refusing an exhibition
permit because they disapprove of the works message, thus raising serious First Amendment
concerns. Art can express thoughts and ideas that might not always be to the taste of every
single member of a community, but that are nonetheless fully protected by the First
Amendment.2 Victor De La Rosa's work addresses the important issues of gentrification and
inequality through imagery that enjoys full constitutional protection a protection which is not
affected by the possibility that some viewers may be made to feel uncomfortable by the
message of the work.
While the government may never engage in such viewpoint discrimination,3 it is even more
constrained in a designated public forum.4 BART, by opening the 16th Street Plaza to
expressive activity by the public, has created such a forum.5 There, any regulation of the content
of speech in the Plaza must be necessary to serve a compelling government interest and
narrowly drawn to achieve that end.6 In a designated public forum, to refuse to display a work
because of its political viewpoint is impermissible.7
In deciding to reject this proposal, BART reportedly applied its Advertising Standards, which
prohibit demeaning or disparaging material determined by whether a reasonably prudent
personusing prevailing community standards, would believe that the advertisement contains
material that ridicules or mocks, is abusive or hostile to, or debases the dignity or stature of, an
individual or group of individuals.8 This overly broad and vague standard could be used to
suppress expression on a wide variety of social and political subjects.9 De La Rosas piece is a

BART Media Relations Manager Jim Allison, quoted in Ashley Bowen, Art Professor Takes Stand Against BART
Censorship, Golden Gate Express (Nov. 3, 2015), http://goldengatexpress.org/2015/11/03/art-professor-takes-standagainst-bart-censorship/.
2 See Snyder v. Phelps, 562 U.S. 443, 458-59 (2011) (holding that even highly controversial speech on matters of
public concern is entitled to full First Amendment protection).
3 See R.A.V. v. City of St. Paul, 505 U.S. 377, 383-86 (1992).
4 BART, through its rules and representatives, has repeatedly referred to the 16th Street Plaza and similar areas as
public fora. In 2011, then-BART spokesman Linton Johnson stated that the plaza is a public forum area because it
is outside the fare gates. Quoted in Phil Bronstein, BART spokesperson: No right to free speech inside BART, SF
Gate (Aug. 16, 2011), http://blog.sfgate.com/bronstein/2011/08/16/bart-spokesperson-no-right-to-free-speech-insidebart/. BARTs own Rules Pertaining To Use Of District Facilities For Expressive Activities specify that the Free
Areas of BART Stations (where access is available to the general public) shall be open for expressive activity, which
is otherwise lawful[.] www.bart.gov/sites/default/files/docs/Permit%20Rules%20Updated%20Feb%202014.pdf.
5 See Hopper v. City of Pasco, 241 F.3d 1067, 1075-81 (9th Cir. 2001) (holding that art exhibit inside City Hall was a
designated public forum for non-commercial speech in spite of policy claiming the contrary).
6 Hopper, 241 F.3d at 1081 (quoting Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45-46 (1983)).
7 See OSU Student All. v. Ray, 699 F.3d 1053, 1066-67 (9th Cir. 2012).
8 BART Advertising Content Guidelines (2008), https://www.bart.gov/sites/default/files/docs/adpolicy.pdf.
9 See NAACP v. Button, 371 U.S. 415, 438 (1963) ([S]tandards of permissible vagueness are strict in the area of
free expression.).

case in point: it refers to social tension, but certainly does not contain a message defaming a
specific individual or group. As the U.S. Supreme Court has previously acknowledged, It is
axiomatic that the government may not regulate speech based on its substantive content or the
message it conveys.10
As BART officials have previously acknowledged, It shouldn't be up to a government official to
determine whose opinion is right and whose is wrong.11 We urge you to reconsider your
decision and approve the display of Victor De La Rosa's work as part of the Mission Street Art
on MUNI Series.
This controversy underscores the need for BART to develop rules to accommodate and protect
artistic expression. When considering standards for artistic or other expressive activity we
urge you to closely tailor these to follow constitutional and legal norms regarding freedom of
expression. The NCAC would be happy to help you develop such guidelines.
Sincerely,

Sventlana Mintcheva
Director of Programs
National Coalition Against Censorship

Matt Cagle
Technology and Civil Liberties
Policy Attorney
ACLU of Northern California

cc:
Abigail Thorne-Lyman
Principal Planner
BART Planning & Development
300 Lakeside Drive, 22nd Floor
Oakland, CA 94612
athorne@bart.gov
Ilaria Salvadori
Manager, Pavement to Parks
San Francisco Planning Department
1650 Mission Street- 5th floor
Ilaria.Salvadori@sfgov.org

10

Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828 (1995).
BART Spokesperson Linton Johnson, quoted in Michael Cabanatuan, Anti-abortion ad on BART angers activists,
SF Gate (Jan. 13, 2006), http://www.sfgate.com/bayarea/article/BAY-AREA-Anti-abortion-ad-on-BART-angers2543958.php.
11