By John Klar

“Black Lives Matter” is painted before the Vermont State House, in the capital city of Montpelier.  On July 7, the City Council rejected an application to paint “Liberty and Justice for All” beside the “Black Lives Matter” street painting, imputing racist motives to the applicant. The city claimed that it was exercising “government speech” — that the BLM message was not that of the private citizens who had applied for and painted the street mural, but that of the city of Montpelier.

John Klar

This magical invocation of a “government speech” exception to basic free speech protections sprang into existence after the BLM message was created. It is clear that the City Council concocted this shallow legal shield in direct opposition to the application to paint “Liberty and Justice for All.” Particularly strange, the city councilors claim that the statehouse (and the state- and federal-funded highway) as their municipal possession to administrate, to advertise their personal political viewpoint, under the pretext of their power to “speak” as the voice of Vermont’s citizenry.

In challenge, 25 candidates for political office in Vermont jointly filed a second street-painting application with the city of Montpelier on August 5, again seeking to paint the phrase “Liberty and Justice for All” alongside the “Black Lives Matter” painting. The city promptly interposed new rules, which it adopted on August 12, requiring that a city councilor be a “sponsor” of any application for street painting in the Vermont capital.

Montpelier city manager William Fraser issued a memorandum the day before the August 26 hearing on the second application, asserting that these new applicants must have a sponsor, and if not:

In the event that the request was considered under the former (non-existent) process, this identical application was already reviewed and denied on July 7th. There is no obligation to revisit the same request.

This too was a bureaucratic ploy to avoid basic fairness using an ex post facto analysis — of course the applications are not identical; they were filed by different people, who also have rights. By suggesting that the same result is mandated as when the council openly labeled the applicant’s motives as racist in the first application, the city manager is calling all of these applicants racists.

Defying that vile characterization, a number of applicants spoke valiantly at the August 26 hearing about the rationale for this effort to unify Vermonters around a constitutional message rather than the divisive BLM political mantra. Ericka Redic, a GOP candidate for the Vermont Senate, stated (at 39:40): “… I don’t think ‘With Liberty and Justice for All’ is diluting the message. I think Black Lives Matter is diluting its own message with things like ‘All cops are B-words’ and ‘F the police’ and ‘abolish the police’ and a lot of other things that the majority of Americans are not behind …”

After summarily dismissing the application without vote, Montpelier mayor Anne Watson eagerly shared her personal position (at 45:43): “I want to say for myself I think we are representing the values of our community. I’m proud that we painted Black Lives Matter on the street and I’m glad that we are not book-ending it with a different message[.] … [I’m] all for patriotism and, you know, being American, at the same time believing that we can hold ourselves to a higher standard than where we’re at right now as Americans.”

The problem is, that “higher standard” has not been defined by Mayor Watson, or by the left, or by BLM.  It is undefined but aspired toward, the new utopian promise that is just “felt.” The mayor and council have superseded the U.S. Constitution with this ideological tyranny. Mayor Anne is “proud” and “glad” to have advanced what she characterizes as a political message with higher standing than current American jurisprudence — imposed by government action, on public property, using taxpayer time and funds, through an Orwellian “sponsor.”

One cannot be “all for patriotism” while dismantling the constitutional foundations that secure citizens’ rights. This council retroactively contrived a “government speech” rationale for the original application, concocted new rules to ensure that no one attempts free speech on “their” turf again, then applied that unconstitutional absurdity ex post facto to the second application.  One is reminded of Soviet jurisprudence, or a Kafka novel.

It is shocking to witness public servants so ignorant of their proper roles. But that too is reminiscent of Kafka: “It’s only because of their stupidity that they’re able to be so sure of themselves” (The Trial).

There is no new utopia. We have the Constitution to protect us from such folly.

John Klar is an attorney and farmer residing in Brookfield, and the former pastor of the First Congregational Church of Westfield.