San Francisco Int'l Arts Festival and the City of San Francisco Head to Court Tomorrow

The San Francisco International Arts Festival's First Amendment lawsuit against the City & County of San Francisco will be heard in San Francisco Federal District Court on Thursday October 22 at 10:30am, Judge James Donato presiding. The Festival will be represented by litigation counsel Matthew Kumin of Kumin Law.

The live hearing represents an interesting development in this instance. The majority of these proceedings are decided by a judge without hearing oral arguments from counsel. This particular case took an interesting turn when the City's co-defendants, the State of California withdrew from the case leaving the City as the sole defendant.

The State's withdrawing brief read in part (emphasis added)

Plaintiffs seek to conduct an arts festival this weekend in San Francisco. They object that such festivals should not be subject to general restrictions applicable to gatherings when more lenient and closely tailored restrictions are imposed on other activities protected by the First Amendment such as worship services and protests. The State agrees and, indeed, has been formulating guidance for musical, theatrical and other artistic performances, as part of the development of industry-specific guidance documents the State has been publishing throughout this pandemic to guide public health and safety during this time. As these guidelines are not complete, this morning the State is issuing an interim directive which permits performances before audiences of less than 100 individuals in counties such as San Francisco but requires approval of the safety precautions taken for such performances by the local public health officer

The suit itself 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.

A PDF summary of the Festival's filed complaint can be viewed at THIS LINK.

The program that the Festival is planning for this weekend can be viewed at THIS LINK.