Squelching Speech

Miami, like an adolescent who won't learn from his mistakes, keeps stomping on the First Amendment

In Miami one man's art is another's politics. To wit: In 1988 city fathers attempted to evict the Cuban Museum of Art and Culture after an auction of works by painters sympathetic to Fidel Castro. Someone even detonated a bomb there. Then this past October, the city attempted to cancel a show by the Cuban dance band Los Van Van. The American Civil Liberties Union helped broker a deal for the group to play at the Miami Arena. Thousands of exiles protested outside as hundreds of police officers kept an uneasy peace.

Now you'd think city leaders would have learned they can't squelch speech because they object to the message, right? Apparently not. In a November 24 federal lawsuit, Outdoor Images, an advertising company based in Portland, Oregon, accuses the City of Miami of employing a vague and unconstitutional law passed in 1998 to regulate the content of large signs downtown. The company seeks to strike down the measure.

Assistant city attorney Joel Maxwell, who is litigating the case, declined to comment on ordinance 926.12, which states the city will judge signs based on their "graphic or artistic value." Members of a volunteer group that reviews all applications, the Urban Development Review Board (UDRB), say their oversight is justified to protect the citizenry from aesthetic monstrosities.

Outdoor Images is hoping the federal courts will reign in the City of Miami
Steve Satterwhite
Outdoor Images is hoping the federal courts will reign in the City of Miami

The controversy started in early March, when Outdoor Images secured permission from the owners of three downtown office buildings to hang 1000-square-foot ads high up on blank exterior walls. The advertising company placed a banner depicting a box of Post Honey Nut SnackēAbouts cereal on the east side of a six-story building at 223 East Flagler St. Several days later code-enforcement inspector Israel Ibanez informed Outdoor Images it needed a permit.

Ad executives didn't complain, says their lawyer, Matthew Buttrick. They proposed a replacement mural that would include a photo of a vast field of golden wheat in a sun-drenched valley. Along the left margin was the cereal's logo. In May the ten-member UDRB, which includes volunteer architects and is chaired by activist and political animal Willy Bermello, rejected the application. The board argued Miamians would hate the illustration. "The [UDRB] wanted to see something with a connection to Miami," Buttrick wrote in the lawsuit. "Thus at the conclusion of the hearing, the UDRB asked Outdoor Images to submit a different design for the property."

The company returned in June with the concept of replacing the giant cereal box with a depiction of a green tropical paradise, complete with palm trees and inviting blue water. This was "Miami" enough, right? Nope. The UDRB requested yet another proposal. And members added a requirement "that Outdoor Images make available the artist of whatever design they submitted at the next hearing to explain the 'meaning' of his or her artwork."

Outdoor Images scrapped the cereal idea and replaced it with a plan for a new banner displaying yellow and green splotches on a white background. Attached to the abstract work was an advertisement for NikeTown, a sports apparel store located in South Miami's Shops at Sunset Place. The UDRB liked the new idea and approved it in July. The board even termed it "art."

During a July 27 commission meeting, J.L. Plummer added another hurdle. The former commissioner objected to the placement of a downtown ad for a store outside city limits. "I want to have people driving downtown to leave and go out to [shop at] Sunset Drive?" Plummer asked sarcastically. When Outdoor Images said the address could be removed, Plummer responded: "You bet your bippy it's going to be deleted."

Seemingly sensing the commissioner might be overstepping the bounds of the law, assistant city attorney Maxwell intervened: "I would suggest that ... you not discuss that any further."

Soon after that encounter, Outdoor Images removed the SnackēAbouts banner and replaced it with NikeTown's ad -- sans address. Then, recently, the advertising firm hauled away NikeTown and hung a huge picture of eight people in a redwood forest, craning their necks as they look for something. Above their heads are the words "In Search of Voyager." Royal Caribbean Cruise Lines' logo is printed in the bottom right-hand corner. The Code Enforcement Board has threatened to fine the company $250 per day until it removes the picture or obtains a permit.

While Outdoor Images cites 223 East Flagler St. as the city's most egregious violation of the company's rights, it includes two other instances of purported discrimination in the suit. In May the company proposed a banner that depicted a camera-wielding woman standing on a rock-covered beach. Outdoor Images wanted to place it at 1 NE First St. The image included no apparent commercial message. Seven months later, the UDRB has not ruled on the application, Buttrick says.

A third application involved another Nike image at 100 East Flagler St. In September, Outdoor Images submitted five designs to the UDRB. They ranged from an aquarium stuffed with fish to a photo of Miami's skyline. The architects rejected all the applications. "Various members of the UDRB expressed to Outdoor Images that they were not 'moved' by the designs, did not find them 'appealing,' and were 'less than impressed,'" Buttrick noted in the lawsuit.

The board suggested a proposed photo of a player shooting a basketball toward a hoop might pass muster if the company changed the color scheme and eliminated the player. Outdoor Images adopted the suggestions and presented the new design in October. The architects responded with more suggested changes. Outdoor Images consulted with Nike, which balked at further revisions. The UDRB responded by rejecting the plan in November.

"This case is pretty simple. The city has said you can put up these signs if we like them," says Buttrick. "The fundamental problem with that is that the Constitution does not allow government to censor speech. This ordinance and the way it has been applied has been used to censor speech."

The city passed the law in 1998 to give leaders some control over the large advertising signs proposed for the sides of downtown office buildings, explains architect Clyde Judson, UDRB vice chairman. One of the most famous shows Tim Hardaway's smiling mug, which appears on a building across the street from the new American Airlines Arena on Biscayne Boulevard. "When someone wants to do a mural, it's going to impact all of us," comments Judson, who does not recall Outdoor Images appearances before the board. "We are looking at how it fits into the larger context of the surroundings."

The law limits the written part of the commercial message to no more than ten percent of the sign's surface area. The UDRB is assigned to determine whether "the image is of graphic or artistic value." Another chapter of the ordinance notes that "consideration for approvals shall be given to the appropriateness of the proposed sign on an existing building." Permits require a $5000 fee.

Buttrick argues the standards are illegal. Numerous courts have ruled that cities must provide "narrow, objective, and definite standards" for signs. "The board and the commission are making subjective decisions with no guidelines to go by," notes John De Leon, president of the local ACLU chapter. "They can regulate the size of the mural or the size of the words. They can't regulate the content."

jose.jimenez@miaminewtimes.com

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