Safety & The First Amendment

Equal Protection for the Arts

SFIAF is in the bizarre and (some would say) unenviable position of suing both the City & County of San Francisco and the State of California over First Amendment protections. That we in this situation is something of a quirk of fate in that we found ourselves in the wrong place at the wrong time. But ostensibly we are the only performing arts organization in the country that has a First Amendment case related to the COVID-19 pandemic currently pending in Federal Court. So, here we are!

We should state that it is not our preference to sue anyone. We want the government to create sensible and safe guidelines for the performing arts to be able to take place out-of-doors in the spring of 2021 (in line with other First Amendment protected activities). But unfortunately the City refuses to discuss the matter with us. We won the first part of our case when Judge James Donato ordered that San Francisco allow our prototype event to go ahead in October. The purpose of the program was to test health and safety protocols that could be implemented in the spring of 2021.

Based on this successful event, we have now created guidelines and the next step of the plan is to follow up with the Department of Public Health to discuss having these guidelines written into law. The idea being that performing artists and arts organizations will have time to apply for the relevant permits prior to the return of warmer, drier weather in April and May.

But instead of communicating with us, the City has returned to a position of non-negotiation, which inevitably puts us back in court. Further the City Attorney has also filed to have the case dismissed. There is a hearing before Judge Donato currently scheduled for January 7, 2021.

So we are asking for the support of the public in three ways.

First, please read and sign our petition to San Francisco Mayor London Breed and the Director and Health Officer at the San Francisco Department of Public Health asking them to communicate with the performing arts community about reopening guidelines (without the need to go back to court).

Second, on Giving Tuesday (December 1), please consider making a donation towards covering our legal costs as we seek to confirm the arts as a First Amendment protected activity.

Third, find out more about the case and see some great performances by zooming into our First Amendment Update, Fundraiser and Holiday Party on Saturday December 12.

We are requesting your financial help to enable the safe outdoor reopening of the performing arts this coming spring. This includes our plans for a program kicking off on May 1 to celebrate International Workers Day and the possible costs of continued litigation to ensure that we are able to do so.

In addition to safely providing renewed access to live performances for the public (and paid employment for artists and support staff), SFIAF’s primary goals in filing for protection and equality under the First Amendment are to:

• Show how the arts can demonstrate national leadership by providing reliable and safe guidelines for the reopening of society during a continuing contagion.
  
  
• Educate the public (and the government) about the importance of activities protected by the First Amendment.
  
  
• Provide the hope, inspiration and solace that live arts gatherings offer people during times of crisis.
  
  
• If our best case scenario (i.e. talking in good faith directly to the Department of Public Health without a Judge forcing them) fails, then using our case as a precedent for arts organizations in other parts of the State and country to be able to reopen safely outdoors as well.

It is a sobering reflection on the diminished civic status of the arts that we had to resort to legal action just to be able to begin a dialogue with the Department of Public Health. As other sectors of the economy were given consideration when governments looked to instigate reopening and recovery, the arts (to quote one City Hall arts advocate) were "kicked to the curb." The stark reality is we lack the political juice to be given the time of day within the corridors of power. Whereas we advocated for a sensible conversation, the City's preference was to force us to take them to court.

We should be clear that with this case we are not arguing for a carte blanche license to gather freely in crowds. We are asking that as other First Amendment protected activities are acknowledged as such, the arts are not excluded. We understand this includes bearing the responsibilities that come with reopening during a pandemic. But we contend that not only are the arts just as important as other First Amendment rights; our modus operandi is safer and more conscious of public health than nearly every other industry being allowed to do business during the current crisis.

We have written at length regarding our rationale for reopening the arts. Both the REASONING and the GUIDELINES for safely staging public performances can be reviewed at the links in the highlighted text.

In addition to standard procedures such as distancing, face coverings and sanitizer, SFIAF has led on arts industry-centric practices such as: advance screening for artists, workers and attendees; mandatory ticket refunds for people who are feeling unwell (or just nervous) and, most fundamentally, contact tracing.

Contact tracing is something that, in general, health departments have not prioritized in the United States. But when we look at the best practices of our colleagues in countries such as South Korea and Taiwan (where the coronavirus has been largely brought under control), contact tracing is an integral part of their respective strategies.

So we were encouraged to learn that President elect Biden's coronavirus plan calls for (among a number of things) …… the creation of a public health workforce to carry out contact tracing. This is something the performing arts industry already does very efficiently through that universal but underrated mechanism popularly referred to as the box office.

As we continue to navigate the political waters towards reopening, we are turning to the general public to support our plans for implementing our ideas in the spring of 2021 and, if necessary, to give us a credible financial option for continuing to pursue a legal strategy.

We would not be in the non-profit performance business if we did not believe in the intrinsic value of artists and the arts. But it is in thinking through the protocols and guidelines for reopening that we were able to better understand the value of our own best practices when it comes to public health and safety. Further, we began to realize how we can share these practices with other industries for whom public gatherings are necessary in order to operate. To that end, if we can reopen safely there are benefits for the broader population beyond our own audiences and employees. Please support us in our efforts to achieve this.