An SF Arts Presenter Sues the City and State to Allow Outdoor Performances

Artist Nkechi Emeruwa and the San Francisco International Arts Festival are the plaintiffs in a new lawsuit against Mayor London Breed and Governor Gavin Newsom to allow outdoor arts events. (Courtesy of the San Francisco International Arts Festival)

Update, Oct. 21, 1:34pm: Governor Gavin Newsom’s office has sided with the San Francisco International Arts Festival, stating that it agrees with the plaintiff’s argument that the arts should be subject to the same guidelines as other First Amendment-protected activities, such worship services and protests. Because the state’s guidelines for artistic performances are still being written, Newsom’s office has issued an interim directive that allows performances with audiences of under 100 people. It requires the approval of city and county public health officers. KQED has reached out to Mayor London Breed’s office for comment.

Original post:

The San Francisco International Arts Festival and artist Nkechi Emeruwa are suing Mayor London Breed and Governor Gavin Newsom to allow an outdoor music, theater and dance performance to go forward despite COVID-19 restrictions, citing the right to free speech under the First Amendment.

The lawsuit comes after months of debate about what kinds of public events should be allowed in the city’s phased reopening process.

Since San Francisco began resuming parts of its economy after its initial COVID-19 shutdown, the organizers of the San Francisco International Arts Festival (SFIAF) and other industry leaders, such as the Independent Venue Alliance, have advocated for the city to allow outdoor, socially distanced music and theater performances. They argue that the arts should not be excluded when outdoor dining, political rallies and religious services are allowed; furthermore, artists and arts organizations are struggling financially without robust government aid or a way to generate income.

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In September, the city budged and created the Just Add Music permit, which now allows entertainment to take place in its existing Shared Spaces street closures, outdoor dining areas, drive-ins, outdoor fitness classes and farmers markets. But it still doesn’t allow for standalone concerts or performances.

The permit provides a pathway for arts presenters to throw ticketed performances only if they meet the city’s requirements for these other types of outdoor gatherings, and there are numerous, often confusing restrictions. For instance, a private outdoor gathering can have six people if food is served and 12 if it isn’t, but religious or political gatherings of up to 200 people are allowed. And on Nov. 3, restaurants will be able to offer indoor service at 50% capacity or up to 200 people.

In September, Andrew Wood of SFIAF put plans in motion for a weekend of performances at Fort Mason, Oct. 24–25. Because Fort Mason is on federal land, he obtained a Shared Spaces permit for a nearby street and approval from the National Park Service to host 49 people at a time. Once California released guidelines for multi-household gatherings in October, limiting them to 12 people, the city’s Shared Spaces program revoked the permit, citing a conflict with state public health orders.

The San Francisco International Arts Festival and theater artist Nkechi Emeruwa, who is slated to perform at the event, filed a lawsuit against the city and state on Oct. 19. Their court filing points out that San Francisco allows large religious gatherings and political rallies, and questions why the arts are excluded despite also being a constitutionally protected form of expression. “Defendants acted collectively to violate Plaintiffs rights to freedom of expression and to discriminate against them, but not other, less constitutionally protected outdoor gathers, without justification,” reads the complaint filed by the Law Offices of Matthew Kumin.

“The arts are equally protected under the First Amendment as religious gatherings and protests, so they can’t make a distinction between the two. We expect to win,” says SFIAF director Andrew Wood.

When KQED reached out to Mayor London Breed’s office for comment, the San Francisco City Attorney’s office replied with a statement that cited state rules, calling the SFIAF performance a potential “super-spreader event.”

“We know that gatherings of people from different households is a main way this virus is transmitted,” the statement reads. Currently, San Francisco is averaging 31 new COVID-19 cases per day, according to the latest available data.

“San Francisco has made tremendous progress in managing the virus because our public health approach has been appropriately cautious,” the statement continues. “On October 9, state health officials released binding guidance limiting the size of private gatherings such as this to no more than three households. This event clearly did not qualify. City officials told the festival organizers that in light of this requirement, public health officials cannot approve this event. Public health leaders have made clear that this is not the time to have a major gathering. The last thing San Francisco needs is a super-spreader event. We’ll review this lawsuit and address it in court, but the fact remains that this event is not allowed under state rules.”

When asked a follow-up question about why the city regulates arts events differently than religious gatherings, the city attorney’s spokesperson reiterated state guidelines on gatherings.

The organizers of the San Francisco International Arts Festival say that they will go forward with the weekend of programming as a form of protest, and tickets are still on sale.

This story was updated to include the city attorney's reply to KQED's follow-up question and the new indoor dining restrictions that will take effect Nov. 3.