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The San Francisco International Arts Festival Prevails In First Amendment Lawsuit

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The settlement will allow the organization's two-day outdoor program to proceed this weekend.

The San Francisco International Arts Festival finally prevailed in its First Amendment Rights case against the City & County of San Francisco today.

The settlement, finally announced following an obdurate two-day argument by City Attorneys, will allow the organization's two-day outdoor program to proceed this weekend, October 24-25 at Fort Mason.

As the City (and State of California) allow multiple types of business to reopen, the performing arts have been forbidden from opening for audiences of more than 12 -- even outdoors. The Festival's suit claimed the First Amendment rights of artists were being violated.

The case confirmed that outdoor performing arts events could take place in the City and County of San Francisco at the same levels as religious groups and political protests. The law was clearly on the side of the Festival as plaintiff, but the outcome was by no means certain when arguing a case against the government. One eye catching element of the case that surprised Festival staff and attorneys was the government's decision to back down on its ban on singing, brass and woodwind instruments. Artists will incorporate these features into their performances over the weekend.

The saddest thing from the Festival's point of view is that seven individual artists and ensembles had to be dropped from the lineup and will lose income because of it. Despite losing, City Attorneys held out for 20 minute delays between performance (even though the events take place in different outdoor sites separated by considerable distances). This caused major disruption to the schedule and Devorah Major, Abdul Kenyatta, Kimi Sugioka, JP Frary, ViBO Simfani, Concept 04 and Maya Burke had to be cut from the program lineup.

The suit itself was the result of a bizarre series of events that ended inexplicably 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.

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