Judge Orders State Back to Court to Participate in Resolution of SFIAF First Amendment Case

This week, Federal Judge James Donato issued a ruling that hauled the Newsom Administration back into court for not following through on (and subsequently breaking) commitments, assurances and promises it made in his presence in October 2020.

At that time, Deputy Attorney General Sharon O'Grady declared to the Court that the State should be released from the San Francisco International Arts Festival's Lawsuit because: THE STATE AGREES WITH THE ARTS COMMUNITY'S FIRST & FOURTEENTH AMENDMENT POSITIONS AND IS GOING TO ISSUE STATEMENTS AND GUIDELINES TO THAT EFFECT.

SFIAF released the State in good faith based on these statements to the court by the Newsom Administration. But, instead of following through on its commitments, the State took no action for five months, allowing the City & County of San Francisco to hide behind State directives that left Newsom's unconstitutional prohibition on First Amendment protected arts activities in place.

Now that the State is back in the case, it allows the arts community's duel strategy for reopening outdoor performing arts to proceed and (finally) be resolved. In the upcoming court mandated meetings, the strategy is to demand that the defendants in this matter immediately do as follows:

• The State must IMMEDIATELY proclaim that the arts have parity (equal protection) under the Fourteenth Amendment with other First Amendment activities and issue statewide guidelines that unequivocally demonstrate that.
• The City & County of San Francisco (in anticipation of the State's corrective rulings) must:

1. Instruct all relevant City permitting agencies (the Port, Recreation and Parks, the Entertainment Commission, etc.), to immediately start receiving and expeditiously processing permit applications for outdoor performing arts events commencing on or after April 1, 2021.
2. Tell the San Francisco Department of Public Health to immediately publish health and safety guidelines for outdoor performing arts (before April 1, 2021).
3. Waive any fees and compliance costs associated with performing arts permit applications. These need to be roughly consistent with the relief offered by City Hall to other industries that have been permitted to open outdoors (including the cost of crowd barriers that might be required for health and safety purposes).
4. The City must announce the implementation of these policies via public notice and directly to the arts and entertainment industries.
5. Likewise, confirm that the arts are a First Amendment protected activity that must have parity under the Fourteenth Amendment with other First Amendment protected practices.

SFIAF Director Andrew Wood said, "The arts community made the correct call on this issue in October 2020. We demonstrated unequivocally that we knew how we could safely stage and professionally manage outdoor performance activities with the best interests of the public at heart. But instead of working with us in good faith (as competent and efficient government bodies should have) to simultaneously protect our communities and prepare for the reopening of society and the economy this coming summer, both the State of California and the City of San Francisco have willfully obstructed us.

They have acted in a manner that is (either) highly incompetent and / or grossly deceitful. They have used their authority to deliberately delay and obstruct justice. They have deliberately wasted taxpayer money by forcing us into the judicial system to seek proper and constitutionally mandated redress. It would have been far more constructive, efficient and much less draining on the public purse to have worked with us five months ago to create a rationale and sensible timeline and health conscience guidelines to safely reopen our industry. We demand that both the State and City stop behaving in this way and work with our industry."

SFIAF had been working since the summer of 2020, in consultation with over 100 Bay Area based artists and arts organizations to decide on a strategy for reopening the performing arts safely outdoors in 2021.The October Prototype Program was the first manifestation of that. SFIAF is also a member of Californians for the Arts and has worked as part of that organization's Reopening Arts Task force.

SFIAF's most recent filing asks the court to reconsider the case in the first week of April.