Festival Files First Amendment Lawsuit Against the City of San Francisco

The San Francisco International Arts Festival today filed suit in a Federal court against the City and County of San Francisco and the State of California.

The Festival charges that the arts are First Amendment guaranteed activities protected by the U.S. Constitution. As such, the organization is petitioning the court to allow its previously scheduled program to continue unabated at Fort Mason on October 24-25. SFIAF contends that artist First Amendment right to freedom of speech are protected in the same way that religious gatherings are protected. Following a recent brush with the US Department of Justice and the Archdiocese of San Francisco, the City currently allows outdoor religious gatherings for up to 200 people.

The suit is the result of a bizarre series of events that have inexplicably ended with the Mayor of San Francisco rescinding a previously approved City permit that allowed the Festival to present a series of small, physically-distanced outdoor performance events (that, in a further ironical twist, are underwritten in part by the San Francisco Arts Commission). The Festival is using the series as a prototype to fully test health and safety procedures for outdoor theatrical gatherings. The timing of the event is significant because the end of October represents one of the last weekends when it can be reasonably relied on to be sunny in San Francisco before the onset of winter and the rainy season.

The Festival's goal is to develop comprehensive guidelines that can be replicated by other performing arts organizations in the spring of 2021. It is widely expected that there will be a plethora of applications for outdoor performance permits with the advent of warmer, drier weather in April and May. There is concern in some parts of the arts community that allowing the Health Department to create the guidelines in a vacuum over the winter months will lead to similar critical errors that have been characteristic of the Shared Space and other City reopening initiatives.

Because the Festival program takes place at Fort Mason (which is Federal land controlled by the National Park Service as part of the Golden Gate National Recreation Area), the directive from the Park Service nationally was for local park sites to issue permits in a manner that runs in parallel with the local jurisdiction. What this means is that in order for an event to go ahead at Fort Mason, the Park Service needs to see evidence of similar activities permitted by the City. SFIAF secured a capacity variance under the City's Shared Spaces program (approved on September 17th HERE) that was forwarded to and declared sufficient by the Park Service on September 18 (HERE).

All was well until October 9 when, out of the blue, the Park Service began receiving daily threatening messages from the Mayor's Chief of Staff, Sean Elsbernd demanding that the events be cancelled. Interestingly, the Mayor's office made no attempt to call the Festival. Several attempts by Festival staff to reach the Mayor's office were not responded to. But the Shared Space program office did answer a call and declared that the permit was complete and should be allowed to go ahead as it was. Finally, on Saturday October 17, the Deputy City Attorney representing the Mayor's office (after repeated pressing from SFIAF attorneys) admitted that the Mayor's intention was to revoke the permit, but gave no reason for doing so.

On not seeing any option for redress through orderly and civilized conversations with the Office of the Mayor, SFIAF filed suit in Federal court on today's date.

SFIAF Director, Andrew Wood said, "Even for City Hall, this is a truly bizarre turn of events. We were given a City permit to present an Arts Commission funded project that is expressly for the purposes of developing best health and safety practices. For the Mayor to sneak around and undercut the integrity of her own administration and, just for good measure, try to shred the First Amendment in the process is remarkable. It is more akin to the reprehensible and nonsensical behavior of the current occupant of the White House than what we would expect of a responsible, elected Democratic leader. Fortunately, we believe we have a very strong First Amendment case and will prevail." For Wood's declaration to the Court CLICK HERE.

Artist Nkechi Emeruwa-Neuberg who is scheduled to perform her solo theatre work, Licensed to Drive While Black as part of the program said in a statement to the court, "I am very sad to have to write this letter. I do not understand why the City is placing itself in opposition to this program. Of all the fights to pick, this seems to be the absolutely worst and ill-judged for the least definable reason. The insult is hurtful and the timing unconscionable. As artists we invest time, thought and energy in our practice. To be disregarded in this turbulent and difficult time is tantamount to censorship of the arts and telling us that our voices do not matter. It is a gross disservice to the First Amendment and the values we hold dear as the descendants of slaves, defenders of emancipation and citizens of the United States of America." For Emeruwa-Neuberg's full declaration CLICK HERE.

The Festival fully expects to prevail in court. But in the event that the suit is unsuccessful, the program will continue as a series of First Amendment protests, that can be permitted by the National Park Service.

These performances were funded in part by the San Francisco Arts Commission, the Phyllis C. Wattis Foundation and other individuals and institutions.

Box Office and Information: www.sfiaf.org or 415-399-9554.