Doug Mirell on First Amendment Protections for the Arts

On May 15, 2025, Nolan Heimann LLP partner Douglas Mirell addressed attendees at the “Nonprofit Arts: Creative Leadership in Uncertain Times” conference hosted by UCLA School of Law’s Lowell Center for Philanthropy and Nonprofits.

In an address titled “The First Amendment and the Arts,” Mirell explored how artistic expression — from literature to film to modern social media commentary — is constitutionally protected under the First Amendment. He highlighted key Supreme Court rulings, including the recognition of motion pictures as a “significant medium for the communication of ideas,” and discussed the legal battles that continue to shape the landscape of artistic freedom in the United States.

Following his lecture, Mirell fielded questions from nonprofit and arts community leaders on how increased governmental scrutiny, including funding cuts and regulatory pressure, are impacting their ability to operate and express themselves freely.

Listen to the entire presentation or view the transcript below:

Transcript

Rose:
Welcome back. We are fortunate to have as our next speaker, Doug Mirell, a partner at the law firm of Nolan Heimann. Doug is a driving force in First Amendment and entertainment industry lawsuits, new and traditional media law issues, invasion of privacy and defamation claims, anti-SLAPP motions and copyright and trademark infringement actions. And most importantly for this particular session, Doug has taught constitutional law, the First Amendment at USC Gould School of Law, as well as legal journalism at Loyola Law School.

And also, important I think for this session, he has been involved with the ACLU since he was a law student and continues to serve on ACLU SoCal's 501(c)(3), as well as 501(c)(4) boards of directors. Thank you.

Douglas Mirell:
All right. Rose, thank you so much and good morning to all of you. I'd like to start out because I neglected to mention my educational background in the materials you got providing biographies of all of us. For this reason, I'd like to dedicate this presentation to the fellow who gave me my first job after graduating from Claremont Men's College in 1977. The person who did so was a guy named Alan Sieroty, who was a state legislator for 10 years in the state assembly until an opening arose and he was able to run in a special election for the state senate.

And it so happened that his election coincided with my graduation from Claremont and he offered me the position of handling press for his first state senate campaign. Notwithstanding my efforts, he won and he invited me to come up to Sacramento with him. And I, having nothing better to do, said of course, "Alan, I'm happy to do that." And then after I was there for a bit, he who was himself a lawyer said, "You know Doug, it would really be a good idea if you went to law school."

And I said, "Well, Alan, I like working for you." And he said, "Yeah. But there's a law school 15 minutes down the road called UC Davis. Maybe you want to go there." And therein lies a tale. I did so and so continued to work with Alan while I was a law student. Unfortunately, he passed away at the age of 93 last year. And so, is no longer able to be a driving force in this community. But before when he was in the legislature and even prior to then and subsequently, he was a patron of the arts, he was an inveterate art collector.

He was a founder of the Venice Art Walk. He chaired the Arts Task Force of the National Conference of State Legislatures and he authored California's Resale Royalty Act, which entitled artists to a royalty payment of 5%, the resale price of works for transactions taking place in this state or where sellers were located in California. That Act, unfortunately in 2018, was declared to be unconstitutional by the Ninth Circuit and preempted by the Copyright Act of 1976.

But Alan nevertheless was still a stalwart defender of the arts. And even after leaving the legislature, he became the founding vice president of the California State Summer School for the Arts and continued to serve as a trustee of that entity until his death. So, the other aspect of Alan's life, which perhaps resonates with the title of this presentation, is that he and his family were inveterate and longtime and very generous supporters of the ACLU, particularly the ACLU of Southern California with which I've been affiliated.

So, I have no PowerPoint and I'm so obliged as a consequence to captivate you solely with my oratory. So, here it goes for what it's worth. Up until now, it's been a fairly decent 233 years since the First Amendment along with the rest of the Bill of Rights was ratified on December the 15th, 1791. And as you know from civics classes of blessed memory, the First Amendment reads as follows, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble to petition the government for a redress of grievances."

Now, apropos of the presentation you just heard from Rose and Casey, I'd like to initially call your attention to the first five words of the First Amendment. Congress shall make no law. Now, why does it say Congress rather than Congress and the President? Well, for the simple reason that under Article I of the Constitution, it is Congress and emphatically not the President who is delegated with the exclusive responsibility for making our laws.

Article I, Section 1 of the Constitution couldn't be clearer on this point. It reads, "All legislative powers herein granted shall be vested in a Congress of the United States." Likewise, Article II, Section 3 of the Constitution makes abundantly clear that it is the President's responsibility not to make laws, but rather to "Take care that the laws be faithfully executed." Now, what you may have also noticed is missing from the text of the First Amendment is any mention of the arts. And that's because it took our court some time to fully appreciate that freedom of speech is a subset of something broader, the freedom of expression.

And that is an idea that dates back to at least Ancient Greece. Specifically in Athens, the concept of freedom of expression was tied to the democratic process and to the right to participate in public discourse. Athenians valued the ability to speak openly and to debate issues in the ecclesia, the assembly. And their speech was facilitated by two concepts, isegoria, which translates into equality of speech, and parrhesia or speaking candidly.

Now, isegoria was understood to allow all citizens the right to participate, I'm sorry, in public debate and to address the assembly. Parrhesia was focused more on the freedom to express one's true thoughts and feelings, even if they were unpopular or controversial. Athenians were encouraged to speak openly and honestly even if it meant going against established norms or power structures. So, it's the concept of parrhesia that's the progenitor of our modern notions of freedom of expression.

And that freedom, of course, is in no way limited to verbal speech. It encompasses the written word including, for example, clothing bearing the words, fuck the draft, worn inside a courthouse; as well as symbolic speech including burning the American flag and even in some cases the burning of crosses by the Ku Klux Klan on private property. You may also have noted that the prohibition embodied in the First Amendment is a prohibition upon Congress and not the states.

And while it was always understood that this reference to Congress was meant to apply to the entirety of the federal government, it took until 1925, just over a century ago for the US Supreme Court to rule that the First Amendment's guarantee of free speech also applied to the actions of state governments, which includes counties, cities, towns, villages, school districts, and other lower-level governmental entities.

But what about the arts and artistic endeavors, are those forms of expression that themselves are likewise encompassed within the protections of the First Amendment? The short answer is, thankfully, yes. And if one were looking for a case that supports this proposition, look no further than the 1977 Supreme Court decision unanimously affirming the rights of workers to unionize in the public sector in which the court wrote, and I quote, "Our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters is not entitled to full First Amendment protection."

But notwithstanding this oratory declaration, First Amendment protection for artistic expression was not always certain or clear. For example, it took until 1952 for the Supreme Court to expressly recognize that motion pictures "Are a significant medium for the communication of ideas." And as the court explained, "They may affect public attitudes and behavior in a variety of ways ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression."

And it wasn't until 1981 that the Supreme Court expressly acknowledged that live entertainment was deserving of First Amendment protection in a case that allowed for naked burlesque dancing, of all things, in the commercial zone of a Camden County, New Jersey borough. In that case, the Supreme Court declared "Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment's guarantee."

Eight years later, in 1989, the Supreme Court reaffirmed that music as a form of expression and communication is protected under the First Amendment. However, it did so in a case upholding a New York City regulation that mandated the use of city-provided sound systems and technicians to control the volume of concerts held in Central Park. And it took until 1995 for the Supreme Court to declare unequivocally that painting, music and poetry are "Unquestionably shielded by the First Amendment," albeit in an opinion authored as it happens by the recently deceased Justice David Souter that allowed the organizers of a St. Patrick's Day parade to exclude from that parade members of an LGB organization whose members were Irish descendants.

But in his unanimous opinion for the court, Justice Souter made specific mention of three things, the paintings of Jackson Pollock, the music of Arnold Schoenberg and the Jabberwocky verse of Lewis Carroll. All of which at the time of their creation were viewed as rather less than mainstream examples of artistic expression. So, that's the good news.

Now, let's talk about some of the limitations that the courts have recognized involving artistic expression. Well, first we have obscenity and child pornography. In 1973, the Supreme Court adopted a three-part test which requires affirmative answers to each of the following questions to find that an expressive work is legally obscene and therefore not eligible for First Amendment protection.

First question, whether "The average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest." Second, "Whether the work depicts or describes in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law." And third, "Whether the work taken as a whole lacks serious literary, artistic, political or scientific value."

I might digress here for a moment. One of my heroes of all time is a guy named Tom Lehrer who had a song called Smut, and one of the lyrics in that song is when correctly viewed, everything is lewd. Anyway, I digress. This three-part test supplanted what was thought to be, and at the time Tom recorded his song, a more liberal definition of obscenity that the Supreme Court promulgated in 1966, which held that a work could not be legally obscene unless it was "Utterly without redeeming social value."

However, since the court's '73 decision, which now governs the state of the law, successful obscenity prosecutions for publishing at least textual media have been limited to a handful of cases. And each of the three prongs of the obscenity definition make it exceedingly difficult to obtain a conviction, especially in major metropolitan jurisdictions where contemporary community standards are rather more malleable, shall we say, and where juries are willing to find some serious artistic value in many types of expressive works.

So, while obscenity remains an exception to the First Amendment, it is largely unenforced. By contrast, child pornography, which is likewise exempt from First Amendment protection, shows no signs of abating. It's a form of child sexual exploitation that federal law defines as any visual depiction of sexually explicit conduct involving a person under 18 years of age. Its production, distribution, importation, reception ... I'm sorry, importation, reception, or possession are all crimes that carry severe penalties.

In fiscal year 2023, for example, the US Sentencing Commission reported 1,408 cases in which individuals had been convicted and sentenced for a variety of child pornography offenses. And its prevalence is due in no small measure to the pervasive influence of social media, which I'll briefly address at the end of this presentation. So, one final word on obscenity and child pornography.

In 2002, the Supreme Court struck down portions of the Federal Child Pornography Protection Act of 1996 that banned "virtual child pornography," meaning a depiction that merely appears to be or conveys the impression of a minor engaging in sexually explicit conduct but doesn't involve an actual child. The court held that such virtual depictions were neither obscene nor child pornography and were therefore protected by the First Amendment.

A second limitation is indecency. And in 1978, the Supreme Court held that even non-obscene works that contain patently offensive terms to describe sexuality or bodily functions, think George Carlin's famous seven dirty words routine, can be restricted on over the air TV and radio broadcasts to specific times when children might not typically view or hear them. And that's not the only circumstance under which so-called indecent speech has been restricted.

The federal government itself did not become significantly involved with sponsoring the arts until Congress created the National Endowment for the Arts that you've just heard about, the NEA in 1965. In the 1980s, the NEA sparked a public and political uproar when it helped fund exhibits with controversial themes. The first of these involved the NEA's funding of a 1989 exhibition of Andres Serrano's work, which included his 1987 photograph called Piss Christ that depicted a crucifix submerged in a small glass tank containing the artist's urine. What could go wrong?

This controversy subsequently expanded to include the works of Robert Mapplethorpe and Annie Sprinkle among other artists. Mapplethorpe 's photographs, particularly those featuring homoeroticism and other potentially offensive themes were initially displayed as part of an NEA-funded exhibit at the Corcoran Gallery of Art in Washington, DC. However, the exhibit ignited a firestorm of criticism from the likes of Senator Jesse Helms and led the Corcoran to cancel the show in June of 1989.

It also encouraged then freshman representative Dana Rohrabacher, a Republican from San Diego, who Politico would later dub "Putin's favorite congressman" to urge Congress to abolish the NEA in its entirety. Sound familiar? Though this earlier attempt to eradicate the NEA floundered, its critics nevertheless continued to accuse the NEA of financing obscenity. As an attempt at compromise Congress passed an arts funding law in 1990 that required the NEA's chairperson to ensure, and it still does, to ensure that artistic excellence and artistic merit are the criteria by which grant applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.

Now that law was subsequently challenged under the First Amendment on the grounds that it impermissibly discriminated on the basis of viewpoint and was therefore void for vagueness. However, in 1998, the Supreme Court affirmed that law's validity, thus effectively ruling that the government need not subsidize art that it considers indecent. But please note, this decision does not mean that the government can censor disagreeable art. But it does appear to mean that the government need not fund or otherwise sponsor art that it finds offensive.

A third limitation upon the First Amendment arises when the government itself speaks. And so, in cases involving controversial art displays, government officials have successfully invoked the so-called government speech doctrine. Thus, for example, a controversy ensued in 2017 over a high school student's painting that was supposed to have been displayed for approximately 11 months in the tunnel that connects the US Capitol to the Cannon House office building. The painting, which won the 2016 Congressional Art Competition depicted police officers as pigs with guns terrorizing a Black neighborhood.

After receiving complaints from some members of Congress, the architect of the Capitol ordered the painting removed and the student artist sued to have it restored. However, the federal district court ruled that the art display was a form of government speech, largely because the government had retained the ability to exercise editorial control over which paintings were displayed. And by the time the case reached the Court of Appeals for the District of Columbia, the annual competition was over and the student artist's appeal was dismissed as moot.

Thankfully though, for art's sake, not all such challenges have been successful. In 1999, then New York City Mayor Rudy Giuliani, a practicing Catholic, didn't like the publicly-funded Brooklyn Museum's display of artist Chris Ofili's painting the Holy Virgin Mary that incorporated, I should say, elephant dung and bare butts cut out from pornographic magazines. Giuliani called this mixed media painting "Sick and Sacrilegious."

Rudy not only threatened to cancel a larger exhibition at the museum if the piece wasn't removed, but he also eliminated the museum's budget and threatened to make it vacate its building. After the museum sued, a federal judge ruled that Giuliani's actions violated the First Amendment and Ofili's work returned to New York in 2018 after being donated to the Museum of Modern Art.

The final First Amendment limitation comes under the rubric of content and viewpoint discrimination. In general, the First Amendment embodies a principle that speech, including art, cannot be precluded based upon its content or the viewpoint being expressed. So, content discrimination arises where certain subject matters or topics are precluded. So, for example, barring only political art from a public forum would be a form of content discrimination.

Viewpoint discrimination arises where specific opinions or perspectives on a subject are precluded. So, for example, if you tried to ban art that extolled communism in a public forum, that would be a forum of impermissible viewpoint discrimination. These concepts have played out in many cities and states that have adopted laws against graffiti and even sidewalk chalking in public spaces. Broadly speaking, these laws do not violate the First Amendment, because while speech is protected, property destruction and vandalism are not.

However, challenges to such local laws have raised questions about how they're enforced and whether they violate the First Amendment. And here are three examples. First, in 2020, city officials in Selah, Washington drew national attention for erasing chalked messages in streets and on sidewalks supporting the Black Lives Matter movement that arose following the murder of George Floyd in Minneapolis. The city erased the messages with water and threatened one family who lived in a cul-de-sac with prosecution for felony mischief.

Now, some legal experts argued that the city's actions violated the First Amendment if officials selectively targeted the family and art based upon the content of the message. After several instances of the city removing these messages from the street, neighbors began writing similar ones on their private driveways, a location where the city could not legally enforce its anti-graffiti laws.

Second example, in 2023, a federal judge stopped Seattle from enforcing its anti-graffiti law, calling it overbroad. The successful challenge was brought by people who were arrested after writing, again, Black Lives Matter and anti-police messages with sidewalk chalk this time outside a police precinct of all places. The judge said the city's law impermissibly allowed police to arrest or cite people based on the content of their message and one police officer's personal views, a classic example of viewpoint discrimination. And to prove their point in the lawsuit, the plaintiffs showed images of police officers themselves writing messages with sidewalk chalk at pro-police community events.

And finally, more recently, in March of this year, Washington, DC Mayor Muriel Bowser authorized work crews to remove the large yellow Black Lives Matter words painted on the street at the intersection of 16th and 8th streets one block away from the White House. She did so in response to pressure from Republicans in Congress. And when the painting was first ordered and the intersection renamed Black Lives Matter Plaza in June of 2020, it was seen as an act of government-sponsored defiance during President Trump's first term. Its removal, by contrast, amounts to a public capitulation and acknowledgement of the district's vulnerability now that Trump has returned to the presidency and Republicans control both houses of Congress.

Finally, a word about social media companies. Social media platforms are not government actors. Hence, they're not bound by the First Amendment. They have the right to moderate or not moderate content as they wish. And when it comes to user-generated content, nearly 30 years ago when the internet was still in its crib, in its infancy, Congress enacted Section 230 of the Communications Decency Act that effectively accords all social media platforms, blanket immunity for virtually everything that such users post, even, even if it is defamatory or invasive of personal privacy and even after courts have said so.

That being said, many social media platforms' terms of service or community guidelines prohibit pornography but allow nudity for educational news or artistic purposes. However, the decision about whether and when to enforce or not enforce those internal policies lies exclusively with the platforms themselves. These standards do not give rise to an enforceable legal obligation that you could sue upon. And the platform's desire and willingness to consistently or evenhandedly enforce their own policies is oftentimes quite unpredictable.

One notable example is Associated Press photojournalist Nick Ut's famous Vietnam War photo, popularly known as Napalm Girl, in which he captured the image of a terrorized young naked girl fleeing the scene of a napalm bombing run. Facebook initially removed this photo from its site for violating its nudity policy, though it later reversed that decision. Both artistic and news images raised deeply troubling questions about how social media platforms' content moderation policies that are meant to protect people from harmful material may unintentionally censor legitimate works of art.

And while not implicating the First Amendment itself, the ubiquity of social media outlets and their ostensibly protective policies do raise a more general question about how the gatekeepers of these platforms view their obligation to abide by the kind of normative principles of free expression that our Athenian ancestors understood and practiced. Think X, formerly Twitter.

In this regard allow me to close with the words of journalist A.J. Liebling, who, in an essay for the New Yorker in 1960 wrote and I quote, "Freedom of the press is guaranteed only to those who own one." Thank you very much for your patience and attention. In the limited time we've got left, I'd be happy to entertain any questions you may have. Yes, sir.

Speaker 3:
I just had a question. It's a big question, but I'm just curious. It's the first thing you said about Congress shall not ... Basically, the president doesn't have all that power. It's in writing. But if there's nobody to enforce it, so it's like what does one do because it's spelled out, it's just no one's listening. Just curious your thoughts on that.

Douglas Mirell:
Well, we do have a third branch. It is populated by folks who are there by virtue of the actions of the current and then former president. And we need, I think, to be constantly vigilant in terms of watching what that court is doing and what the lower courts are doing and how they're pushing back against some of the things that Rose and Casey talked about out. One example that has already made it to the court, obviously, is the question of revocation of birthright citizenship, which is guaranteed by the 14th Amendment. And no legitimate argument that I have read has suggested that there is any way that an executive order can, in any way, overrule that or should I say Trump that.

And so, the court will be hearing arguments in that case. We'll watch how that plays out. We'll also watch for how the court is going to be dealing with issues of contempt when judges have issued orders that have said return this detainee to the United States, facilitate his return. And the executive branch does nothing to facilitate it. So, the jury is out as we in the law biz like to say. I'm not being Pollyannish about this and suggesting that the courts will be our saviors.

But it's the last refuge given the fact that at least until the midterm elections arise, we will be dealing with an executive who is prepared to issue orders at the drop of a hat and with a Congress that is completely unwilling to speak up against anything that he does or says in those executive orders. Yes, ma'am.

Speaker 4:
Could you speak a little bit to any issues regarding defamation as it's related to the press? I understood that there were some cases that were going that might loosen some of the ... or actually tighten some of the defamation protections that process.

Douglas Mirell:
No. You're quite right. Indeed, at least two justices on the current court, Justice Thomas and Justice Gorsuch have expressed the view that a case that was decided by the Supreme Court in 1964 called New York Times versus Sullivan, which establishes the principle that if you are a public figure, you can only successfully sue for defamation if you prove that what was published was done with knowing falsity or with reckless disregard for the truth, if you're a public figure.

Those two justices have more or less indicated that if the right case were presented to them and the court took it that they would vote to effectively repeal New York Times versus Sullivan and effectively allow even public figures to be sued. And all that would need to be shown by a plaintiff is that there was negligence involved not requiring an intent in that way. And so, that is a cornerstone of what has protected free speech rights in defamation cases.

And the question then is, will this court take a case for that purpose? Two out of nine isn't a majority. And it takes four, there's a rule of four in the Supreme Court that in order to take a case at all, four justices have to agree. And there's not yet been any indication that the support for the abandonment of Times versus Sullivan extends beyond those two justices. But time will tell and we'll have to see. Other questions. Yes, sir.

Speaker 5:
Hi, thank you. My question is just going back to the very end when you were talking about social media and Section 230. So, I'm sure a lot of our organizations have Facebook pages and Instagram pages and things like that, and we get comments on those. And sometimes we want to delete or block those comments because they might be hateful content. And then thinking more broadly about these conversations and statements being put out by organizations that might be inflammatory to some people.

So, do nonprofits and organizations have the same protections under Section 230 and if we were to get blocked by Facebook for whatever reason, what recourse would we have?

Douglas Mirell:
So, the answer to the first question is yes, you do. That the immunity that extends to all platforms for user-generated content extends to profit-making entities as well as nonprofits. If Facebook or whatever the platform is, is pursuing you because you have violated the community guidelines that they have established, typically the people who are pursued for that are those who post the content themselves. And some of these platforms have what they call three strikes policies that could lead to the deactivation of your account if you are a multiple offender.

With respect to platforms themselves, the guidelines would seem to be applicable only if it is you as the organization that is posting on the platform itself. And so, you would need to likewise abide by the terms of service or community guidelines or whatever exists and ensure that your content doesn't fall on the wrong side of those community guidelines. But the same thing would happen to you.

Typically, the platform would contact you and say, "This item that you've posted that you created yourself is problematic under guideline ABCD, please remove it or explain why it's not." So, typically, you've got an opportunity to do the right thing. But obviously, keep on the correct side of the community guidelines.

Back there. I saw back there first. Then I'll get you.

Speaker 6:
Could you speak a little bit about how the Fairness Doctrine was deemed to constrict the First Amendment rights and what impacts we're seeing now 30 plus years later?

Douglas Mirell:
Well, for those of you who want to lesson in history, yes, the Fairness Doctrine used to exist. It used to be that broadcasters were obligated to provide equal time to various political candidates who might be offered a platform. It's why there are still vestiges of it with certain mainstream media outlets. You'll recall that before he decided to sue my good friend, Bill Whitaker, at 60 Minutes over his interview of Kamala Harris, 60 Minutes offered both Harris and Trump the opportunity to appear on 60 Minutes and before the election. Trump declined that opportunity.

The Fairness Doctrine as it existed is no longer. And so, broadcast media for whom it was only applicable under the FCC's guidelines when it was in effect have absolutely ... had never had any bearing upon what cable outlets did. They didn't have any bearing upon what social media outlets do. And so, all of those outlets are free to either expound views that they hold or decline to expound upon views that they dislike. And it's indeed, I would suggest the reason why you have seen the rise of things like Fox and OAN and Newsmax, that unashamedly are partisan outlets that do not worry one whit about being fair or even-handed or balanced as one of the monikers would suggest.

So, really there is no refuge anymore in that. And I think we are witnessing the outcome of the abandonment of that doctrine and the abandonment of a notion that part of the public trust that comes with being given a broadcast license or being allowed to use the internet is some degree of accountability and fairness and balance. And that doesn't exist. And so, people have to vote with their feet and with their dollars to either support or not support entities that seem to be upholding those principles or abandoning them.

Rose:
Two questions ...

Douglas Mirell:
Sure.

Speaker 7:
Can you speak a little bit about the First Amendment rights in relation to what's deemed as terrorist speech, like anti-Semitic speech or pro-Palestinian, anti-Israel speech and that whole creep that's happening?

Douglas Mirell:
How much time do we have? Let me address that by simply saying this, people do have the right to speak. And the notion, for example, recently that you can order somebody deported for having co-authored a pro-Palestinian article in a student newspaper is beyond unfathomable under the First Amendment.

But that having been said, a lot of what happened in the prior academic year was a function of schools not appreciating the fact that the First Amendment contains something that I didn't address, which is time, place, and manner restrictions. Entities that control fora, like on this campus for instance, have the ability to implement and enforce in an even-handed way regulations that say, "Thou shalt not allow amplified speech. During particular hours, thou shalt not allow encampments."

And many of the universities that are now the subject of the administration's ire failed to appreciate the fact that that's an integral component of what the First Amendment likewise requires. You can impose reasonable time, place, and manner restrictions and many of those institutions could have, should have done so before the proverbial feces hit the fan. And so, I could talk more at length about the subject. But for now, let me just keep it there. Last question.

Rose:
Hi, it's me.

Douglas Mirell:
Hey.

Rose:
I'm going to sneak in two. One is very specific and you were leading there. But I remember I was in New York City during the first ... lead-up to the first Trump administration. And in New York City, the Department of Cultural Affairs oversees many of the city-owned cultural institutions, think the Met Museum, the Public Theater, et cetera. And we got a lot of questions. We had to give them guidance on something that a lot of arts organizations in this room might do, which is event rentals.

Because many organizations that have cultural facilities often allow event rent, third-party event rentals, everything from weddings to whatever. And they were getting requests from think tanks, et cetera, that were very conservative and frankly they wanted to say no. And we had to advise them that actually they couldn't say no to some rentals based on a viewpoint or something like that. But I also remember they were city-owned properties even if they were operated by a nonprofit.

Can you just share with this group, which is probably mostly private nonprofit organizations, but some might be on government-owned center theater group, others might be on government-owned, LA County-owned or whatever. What if they do allow event rentals, what guidance do they need to follow for content or viewpoint of the person wanting to rent it?

Douglas Mirell:
Yeah. So, if you're a purely private organization, you get to do what you want to do. You get to rent who you want to. You get to deny rental space to those who you don't want. Let me give you one brief example the other way where you are dealing with a governmental entity. There was a famous lawyer in Los Angeles who actually was the first legal director of the ACLU of Southern California by the name of A.L. Wirin. A.L. stood for Abraham Lincoln, Wirin.

Wirin, who is famously known as Al, went to court because effectively a racist neo-Nazi or Nazi at the time wanted to speak at the Long Beach Civic Auditorium, which was government-owned property. And the city was denying him the right to do so. Wirin went to court, got an order that said, "No. Long Beach, you got to let him. Got the Civic Auditorium be rented to him." And it was. And on the night of his speech, Wirin was out in front with a picket sign demonstrating against the message that his client was purveying inside.

And so, that's the cognitive dissonance, I think, you need to live with if you're a civil libertarian who appreciates the notion that people do have free speech rights, but you also have the right to speak up against somebody else's speech. You have that equal right.

Rose:
Thank you. And finally, I just want to say thank you so much for sharing all of this with us. If there is even one thing arts organizations or funders might take away from this conversation about what they can do with their First Amendment rights, what would you say it is?

Douglas Mirell:
Don't be afraid. Don't let yourselves be intimidated. There have been too many examples. And here, I'm ashamed to say that the legal profession has buckled under pressure from the administration to capitulate in ways that I could never have imagined would happen. Fortunately, there are counter-examples of other law firms that are currently standing up to and are successfully standing up to the administration and there are educational institutions. We heard about Harvard earlier, that are doing so as well.

And again, in general, I would say that the goal ought to ensure that you are standing upon the principles that you believe in and you need to articulate those principles as clearly and forcefully as you can now more than ever. And to the extent that you need help from attorneys, to the extent that you are being ... the promulgation of those views are being challenged by the government, you need to seek out help and help is there for you to assist you and to support your efforts.

Rose:
Thank you so much for that inspiration, Doug. That's exactly why we wanted you here for this presentation on the First Amendment.