Image courtesy of Rodney Jackson
Audio By Carbonatix
A federal appeals court has ruled that Miami Beach’s removal of a portrait honoring a Black man killed by city police officers did not violate the First Amendment.
Ahead of Memorial Day weekend in 2019, Miami Beach’s tourism department recruited local Black artists to curate a series of art installations in hopes of “sparking crucial conversations about inclusion, blackness, and relationships.” Among the works set to be displayed in the citywide project called “ReFrame Miami Beach” was a piece memorializing Raymond Herisse, a young Haitian-American man fatally shot by Miami Beach police in 2011.
Despite heavily promoting the series ahead of its debut, the city quickly ordered the artwork’s removal at the request of the then-city manager who felt it was “potentially divisive.” The decision drew criticism from the American Civil Liberties Union of Florida, which sued Miami Beach in 2020, claiming the portrait’s removal violated the free speech rights of the work’s creator, Miami artist Rodney “Rock” Jackson.
On October 27, the 11th Circuit Court of Appeals ruled that because Miami Beach owned the artworks, ran the exhibit, and controlled who displayed the art, it was not required to display the portrait of Herisse. The decision upheld a Florida federal judge’s 2022 judgment against Jackson and his co-plaintiffs, curators Jared McGriff and Octavia Yearwood.
The three-judge appeals panel was tasked with deciding whether the removal of the artwork was a violation of the plaintiffs’ free speech or a legal exercise of “government speech.”
“We agree with the district court and hold there is no genuine dispute of material fact that the city was speaking when it selected some artwork, but not others, to display at ReFrame,” Senior U.S. Circuit Judge Frank Hull wrote for the court. “Having bought the artwork, the city’s decision to display it, or not display it, was classic government speech.”
In a concurring opinion, U.S. Circuit Judge Adalberto Jordan wrote that while he agreed the city did not violate the First Amendment, that “does not absolve Miami Beach from criticism from its decision.”
“The painting, at least to my eyes, is an unoffending tribute to a man who was shot and killed by Miami Beach police officers,” Jordan wrote.
On Memorial Day 2011, Miami Beach officers shot and killed 22-year-old Herisse after he allegedly drove erratically down Collins Avenue and fled from police, nearly running over officers on bicycle. Police fired a total of 116 bullets, sixteen of which hit Herisse. Four bystanders were wounded by the gunfire.
In light of Miami Beach’s history of hostile relations with Black visitors on Memorial Day weekend, and what the ruling describes as the city’s “troubling and regrettable history of race relations,” Miami Beach organized the Memorial Day 2019 event in an attempt to “reframe the narrative” surrounding Urban Beach Week, the annual hip-hop festival held in South Beach.
The 4-by-4-foot vinyl portrait of Herisse was set to be displayed as part of the series in an exhibit on Lincoln Road called “I See You, Too” eight years after his killing. The piece depicted his face in black and white surrounded by rays of light; a placard beside the piece explained that a Miami Herald investigation found the police’s narrative of the 2011 shooting was “inconsistent, contradictory, and missing key information.”
“This memorial is to honor Herisse, to affirm #blacklivesmatter and call into question the excessive force, racial discrimination, violence, and aggression often present in interactions between police and unarmed Black civilians,” the placard stated.
The artwork caption apparently did not sit well with then-city manager Jimmy Morales, who reportedly told Miami Beach’s mayor and city commission that the painting was “potentially divisive and definitely insulting to our police as depicted and narrated.”
“The purpose of the ReFrame cultural programming this past weekend was to create an opportunity for inclusiveness and mutual exchange,” Melissa Berthier, a city spokeswoman, previously told New Times. “The City Manager felt that the panel in the one particular art installation regarding the incidents of Memorial Day weekend in 2011 did not achieve this objective.”
The subsequent lawsuit filed against the city pointed to Miami Beach mayor Dan Gelber’s comments about the city’s decision during a town hall in November 2019.
During an event called “Community Night: For Freedoms Town Hall” at Perez Art Museum Miami, an audience member asked Gelber why the Herisse piece was censored, to which he responded: “Our manager said, ‘I don’t like it, and I don’t want it…and, frankly, I supported that decision.” When pressed on the matter by another audience member, Gelber said that because the city paid for the work, it had the right to decide “as a consumer and purchaser” whether it wanted the piece or not.
The decision was denounced by local artists and community members. Shannon Ligon, an attorney for Herisse’s family, previously said she was “appalled” by the artwork’s removal.
Jackson litigated the First Amendment lawsuit against Miami Beach for nearly two years before a judge in the Southern District of Florida granted summary judgment in favor of the city. While he and the other plaintiffs claimed Miami Beach stamped on their First Amendment rights to display art and express their views on race relations, the city argued it was within its rights to select which works it displayed as part of the ReFrame project.
In order to determine whether Jackson or Miami Beach was the “speaker,” the judges factored in who “controlled” the artwork, whether the city appeared to endorse it, and if the “mode of expression” (i.e. public art) is historically used for government purposes.
The 11th Circuit sided with Miami Beach in its opinion handed down last week, finding that the artist’s free speech rights were not at stake.
“Here, it is undisputed that the city contracted with the production companies to: fund and take ownership over the art, control how the art was to be disseminated, and subject the art to the reasonable satisfaction of the city manager,” Hull wrote.
Hull, a Bill Clinton appointee, noted that because Miami Beach promoted ReFrame in flyers and press releases, it appeared to endorse the message as well, weighing in favor of the city on the First Amendment issue.
On appeal, Jackson and the art exhibit’s curators had tried to draw a comparison between their case and a lawsuit where a Brooklyn museum won an injunction against New York City and its then-mayor Rudy Giuliani after the city threatened to withhold funding over the museum’s display of Chris Ofili’s “The Holy Virgin Mary.” The mixed media painting had been lambasted for incorporating elephant dung and pornographic images around an image evoking the biblical figure.
Judge Jordan noted, however, that in contrast to the Miami Beach case, New York City did not own the artwork in dispute and had no editorial control over exhibits.
