US judge may allow San Francisco arts festival proceed

SAN FRANCISCO -- Arts events are being unlawfully restricted under San Francisco's COVID-19 guidelines despite being a constitutionally protected form of expression like religious gatherings and political protests, an attorney representing an arts festival argued Thursday.

In spite of claims from the city that the event is not safe, U.S. District Judge James Donato found San Francisco International Arts Festival's show meets the county's directives to hold outdoor gatherings.

"The state has said that political speech, religious gatherings and art events are in the same tier," he said. "I'm struggling to see how St. Mary's Cathedral can have seven masses a day of up to 200 people each going forward, but an arts group under the same criteria can't do it."

San Francisco International Arts Festival was granted a permit in September to host outdoor performances for 49 people at a time on Oct. 24 and 25. It sued the city after it revoked its permit based on California guidelines released this month limiting multi-household gatherings to 12 people. The festival organizers argued violation of constitutional rights to free speech and equal protection of the law.

Gov. Gavin Newsom has stated that the arts are subject to the same guidelines as other First Amendment-protected activities but opposed allowing the festival to proceed since local public health officials determined it not to be safe. He issued interim directives Wednesday allowing events with audiences of less than 100 people as long as the city and county hosting them approve.

Newsom's office did not immediately respond to a request for comment. San Francisco International Arts Festival v. Breed, 20-cv-07314 (N.D. Cal., filed Oct. 19, 2020).

During Thursday's video hearing, Deputy City Attorney Tara M. Steeley argued the arts festival is not being treated differently than religious gatherings and political protests. She noted the event will host numerous simultaneous performances throughout the day with up to 588 total people planning to attend.

The San Francisco Department of Public Health has prohibited multiple outdoor gatherings from taking place in the same space at the same time in directives announced a day before the state issued its interim guidelines.

Deputy Attorney General Sharon L. O'Grady sided with San Francisco that it lawfully revoked the plaintiff's permit since local authorities are in the best position to determine what's safe.

"This event appears to satisfy the [state's] guidelines that came up yesterday," she said. "But again, that's the floor, not the maximum protections that can be put in place."

The plaintiff's attorney, Matthew W. Kumin, clarified there will never be more than 49 people at any given time during the event. Asked by Donato about simultaneous performances taking place on Saturday, he responded that one has 36 people attending and the other has 12. He said his client will stagger them if it's a problem since it understood directives to allow for simultaneous events as long as they're under 50 total attendees, calling the guidelines a "moving target."

"We're committed to doing exactly what the city says for religious gatherings," the Oakland-based attorney said. "They will be sequential and not simultaneous."

With the plaintiff's commitment to the change, Donato asked whether the city would reconsider allowing the festival to proceed.

"I drive around the city, and I see people sitting in restaurants, in barber shops and coming in and out of stores," he said. "The city should be careful, but it sounds to me like a permit could be issued that meets all the requirements."

Steeley countered that San Francisco's public health director's decision to revoke the event's permit should be respected. She said there's good reason that San Francisco -- the second densest city in the nation -- is having better success than others fighting COVID-19 spread.

There's still an equal protections issue, Donato replied.

Kumin urged the judge to rule on the temporary restraining order by the end of the day since the festival is Saturday and the city has refused to negotiate further. He claimed there's "complete discrimination against this event versus religious gatherings and political protests."