Federal Judge Rules Against City of San Francisco's Motion to Dismiss Festival First Amendment Lawsuit

The Federal District Court in San Francisco declined today a request by the City & County of San Francisco's (CCSF) to dismiss the San Francisco International Arts Festival's (SFIAF) lawsuit seeking parity with other First Amendment protected activities. Instead Judge James Donato invited counsel for both parties to an in-camera meeting in his chambers to discuss the parameters of an agreement. The court is scheduling the meeting within the next two weeks.

SFIAF is seeking declaratory relief asking the court to confirm that the performing arts, as a First Amendment protected activity, has parity under the 14th Amendment with similarly protected activities such as religious worship and protest. On Monday January 25, CCSF lifted all limits on the maximum numbers of people who can participate in outdoor religious services and protests, as long as other COVID-19 precautions (e.g. social distancing) are observed. SFIAF contends that the arts should be allowed similar considerations.

Donato initially expressed displeasure that the case was still before him. In October he threatened to issue a Temporary Restraining Order against CCSF to allow SFIAF's Outdoor Program to take place that month. Faced with this CCSF acquiesced and the event went ahead successfully. Per his direction, it had been the Judge's hope that the two parties would be able to continue a dialogue regarding Safely Reopening the performing arts. However, rather than doing this in good faith as had been expected by the court (and despite Repeated Requests to do so by SFIAF), CCSF instead filed a motion for dismissal. This is the motion that the court rebuffed today.

City Attorney Tara Steeley refused to offer any type of timeline or parameters for when CCSF felt there could be planning to begin discussions about guidelines for reopening the performing arts (despite having done so for most other industries). SFIAF contended, through attorney Matthew Kumin that the arts are able to reopen even more safely than some other industries--as was demonstrated by the prototype event held in October.

SFIAF executive director, Andrew Wood said of the CCSF position, "The law is very clear and I can understand Judge Donato's frustration. The City should have taken us up on our offer to craft safe and careful guidelines for the reopening of the performing arts out-of-doors in line with other First Amendment activities. Instead the City continues to unnecessarily and unconstitutionally take up court time with spurious and illogical arguments. We will not be rebuffed by this and will remain engaged in the legal process until we justly prevail"

SFIAF is seeking resolution so the performing arts can start to plan for outdoor performances beginning in May. Wood continued, "Theatre and music performances don't just spontaneously coalesce. They take months of organizing. We need to know that our industry will be afforded the same guarantees as other similarly protected activities so we can begin planning for them. If the government deems that the pandemic is so severe that it should shut down religious services and protests, as well as non-protected activities such as outdoor dining and non-essential retail, then we will happily close as well. But until such time arrives, the law states that the arts should be treated equally."

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