Festival Re-Files Against State of California As City of San Francisco Stonewalls In First Amendment Case

Reluctantly, the San Francisco International Arts Festival (SFIAF) this week brought the State of California (CAL) back into court as part of its ongoing First and Fourteenth Amendment lawsuit against the City & County of San Francisco (CCSF). The latest filing documents are AT THIS LINK.

SFIAF initially sued both CAL and CCSF in October 2020 to be able to successfully stage its Outdoor Prototype Program to safely test reopening guidelines for the performing arts. SFIAF released CAL from the case after State's counsel acknowledged in court that the arts enjoyed equal protection with religious worship and protest under the Fourteenth Amendment AND that CAL would issue guidelines for the performing arts consistent with that position.

This left CCSF as the sole defendant in the case. As such (under judicial threat of a Temporary Restraining Order), CCSF agreed to work with the arts community to develop safe reopening guidelines for the summer of 2021. However following the successful and safe events in October, rather than working with the arts, CCSF double-crossed both the arts community and the court by instead filing to have the case dismissed.

As such, when the case reappeared in his courtroom in February 2021, Judge James Donato expressed annoyance that CCSF had not followed through on the commitments it had made in October. But he gave CCSF the chance to redeem itself and ordered the parties to reach another settlement.

Believing in the jurisprudence of the court, SFIAF developed a corresponding settlement agreement to discuss with CCSF.

However, rather than making a good faith effort to reach an agreement, CCSF instead engaged in tactics of delay and obfuscation. First, CCSF claimed that because CAL had been released from the case, its hands were tied. CCSF was able to make this claim because CAL had also reneged on its commitment and (since October) had neither made any statement acknowledging the First and Fourteenth Amendment protected status of the arts, nor issued guidelines for the safe reopening of outdoor performing arts.

This left SFIAF having to adopt a duel strategy: Ask CCSF to undertake those elements of the settlement that it could, while SFIAF considered its options in hauling Newsom et al back into court.

The elements of the agreement that CCSF can undertake without waiting for State approval and that SFIAF asked it to adopt on February 18 are as follows:

1. All relevant City permitting agencies (the Port, Recreation and Parks, the Entertainment Commission, etc.), must start receiving and expeditiously processing permit applications for outdoor performing arts events commencing on or after April 1, 2021.
2. The San Francisco Department of Public Health must also immediately publish health and safety guidelines for outdoor performing arts (before April 1, 2021).
3. The City must 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.

In the three weeks since, CCSF HAS NOT ACTED (OR EVEN RESPONDED) TO ANY OF THE ABOVE POINTS. This is critical. By the government's own admission, it takes between eight to 16 weeks to process event permit applications. If the government waits until events are allowed before their front line departments start processing the permits, it will take another eight weeks before outdoor events can take place on public premises.

Meanwhile, on March 5, 2021 the State did release GUIDELINES FOR PROFESSIONAL SPORTING EVENTS held outdoors that could be utilized by some of the largest performing arts organizations (i.e. the Hollywood Bowl), but that disregarded all other types of outdoor public performances. In response, on March 10, SFIAF filed the above referenced motion to have the State returned to the case.

SFIAF Director, Andrew Wood said, "The case is becoming an ongoing morass of government incompetence that borders on malfeasance. It has nothing to do with health and safety and is very much about incompetence and bad management. Not only have they treated the arts community with derision and contempt, they have also needlessly wasted thousands of tax payer dollars in the process and jeopardized revenue potential at both the municipal and state levels.

"Our industry has proved that we take healthcare and the pandemic seriously and we have done our utmost to develop and implement comprehensive safety guidelines.

"Rather than working with the arts, which are acknowledged by all as a critical factor in the recovery of the economy, government officials have used falsehoods and delay tactics to keep the arts closed. Inexplicably, they have done this even as other industries that do not enjoy First Amendment protections, are encouraged to open. CCSF has even had to sue to get its own School District to start in-person classes.

"Live performances don't just spontaneously coalesce. They take weeks of organizing. We need to know that our industry will be afforded the same guarantees as other similarly protected activities and other industries, so we can begin to plan accordingly."

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.

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