1 2 3 4 5 6 7 8 9 10 11 12 13

JENNER & BLOCK LLP ANDREW J. THOMAS (Bar No. 159533) ajthomas@jenner.com LISA J. KOHN (Bar No. 260236) lkohn@jenner.com CHRISTINA AVEDISSIAN (Bar No. 288067) cavedissian@jenner.com 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Telephone: 213 239-5100 Facsimile: 213 239-5199 ACLU FOUNDATION OF SOUTHERN CALIFORNIA PETER J. ELIASBERG (Bar No. 189110) peliasberg@aclu-sc.org 1313 West 8th Street Los Angeles, CA 90017 Telephone: 213 977-9500 Facsimile: 213 977-5299 Attorneys for Plaintiff, EFREN MONTIEL JIMENEZ UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15 16 17 18

EFREN MONTIEL JIMENEZ, v. Plaintiff,

Case No. EDCV13-02163 DSF (RZx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: ENTRY OF PRELIMINARY INJUNCTION

19

COUNTY OF SAN BERNARDINO

20

Defendant.
21 22 23 24 25 26 27 28

Memorandum ISO Plaintiffs Application for a TRO

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1 2 3 4 II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 1 STATEMENT OF FACTS.............................................................................. 2 A. The Countys Policy and Practice of Hosting Art Exhibits in the Second-Floor Gallery of the Government Center Rotunda ............ 2 Plaintiffs First Amendment-Protected Paintings ................................. 4 The Countys Removal of Plaintiffs Paintings from the 2013 Exhibit ................................................................................................... 5

B. C.

III.

ARGUMENT .................................................................................................. 7 A. B. Temporary Restraining Order Standards .............................................. 7 Plaintiff Is Likely to Succeed on the Merits of His First Amendment Claim ................................................................................ 7 1. Plaintiffs Paintings Are a Protected Form of Expression Under the First Amendment ....................................................... 8 Defendant Created a Designated Public Forum by Intentionally Opening the Government Center to Expressive Activity..................................................................... 9 a. Defendants Lack of Policy and Practice Demonstrates Its Intent to Create a Designated Public Forum. ................................................................. 10 The Nature of Defendants Property Is Compatible with the Expressive Activity at Issue ............................. 12

2.

b.

3.

Defendants Removal of Plaintiffs Artwork Cannot Survive Strict Scrutiny Because It Was Not Narrowly Tailored in Furtherance of a Compelling Governmental Interest ...................................................................................... 14

i
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a.

Defendant Censored the Paintings on the Basis of Content ........................................................................... 14 Defendant Has Failed to Articulate a Compelling Interest for Excluding Plaintiffs Artwork from the Exhibit ............................................................................ 15 Defendants Standard for the Exclusion of Artworks in the Exhibit Failed to Adequately Limit the Discretion of County Officials ....................... 17

b.

c.

4.

The County, Not the Hispanic Employees Alliance, Demanded That The Paintings Be Removed ........................... 19

C. D.

Absent Injunctive Relief, Plaintiff Will Suffer Irreparable Harm ...... 20 The Balance of The Hardships Weighs Decidedly in Plaintiffs Favor ................................................................................................... 21 An Interim Injunction Would Serve the Public Interest ..................... 22 Requiring That the Previously Censored Paintings Remain on Display for the Period of Time They Were Removed from Display Is the Appropriate Remedy Here ........................................... 23

E. F.

V.
18 19 20 21 22 23 24 25 26 27 28

CONCLUSION ............................................................................................. 25

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TABLE OF AUTHORITIES CASES PAGE(S)

ACLU v. Reno, 929 F. Supp. 824 (E.D. Penn. 1996)............................................................. 21, 22 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .............................................................................. 7 Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983) .......................................................................... 22 Cohen v. California, 403 U.S. 15 (1971) ............................................................................................. 16 Conn. General Life Insurance v. New Images of Beverly Hills, 321 F.3d 878 (9th Cir. 2003) .............................................................................. 23 Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985) ................................................................................. 8, 10, 14

Crowley v. Local No. 82, 679 F.2d 978 (1st Cir. 1982), revd on other grounds, 467 U.S. 526 (1984)..................................................... 23 17
16 18

DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999) .......................................................................... 9, 14 19
20

Ebel v. City of Corona, 698 F.2d 390 (9th Cir. 1983) .............................................................................. 20 21
22

Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................................... 20 23

24

Erznoznik v. Jacksonville, 422 U.S. 205 (1975) ........................................................................................... 15 25

26

Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) ........................................................................................... 15 27

28 iii
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Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389 (9th Cir. 1984) .............................................................................. 7

3 G & V Lounge, Inc. v. Mich. Liquor Control Commn, 4 5 Henderson v. City of Murfreesboro, 6 7 8 9 Iowa Right to Life Comm., Inc. v. Williams, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

23 F.3d 1071 (6th Cir. 1994) .............................................................................. 22

960 F. Supp. 1292 (M.D. Tenn. 1997) ............................................. 13, 17, 18, 19

Hopper v. City of Pasco, 241 F.3d 1067 (9th Cir. 2000) ..................................................................... passim

187 F.3d 963 (8th Cir. 1999) .............................................................................. 22

Jenkins v. Georgia, 418 U.S. 153 (1974) ......................................................................................... 8, 9 Kaplan v. California, 413 U.S. 115 (1973) ............................................................................................. 8 Louisiana v. United States, 380 U.S. 145, 13 L. Ed. 2d 709, 85 S. Ct. 817 (1965) ....................................... 24 Milliken v. Bradley, 433 U.S. 267, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977) ..................................... 24 Monterey Cnty. Democratic Cent. Comm. v. U.S. Postal Serv., 812 F.2d 1194 (9th Cir. 1987) ............................................................................ 22 Natl Endowment for the Arts v. Finley, 524 U.S. 569 (1998) ............................................................................................. 8 NML Capital, Ltd. v. Spaceport Sys. Intl, Ltd., 788 F. Supp. 2d 1111 (C.D. Cal. 2011) ................................................................ 7 Osborne v. Ohio, 495 U.S. 103 (1990) ............................................................................................. 9 Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45 (1983) ................................................................................... 9, 14
iv
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Sammartano v. First Judicial Dist. Ct., 303 F.3d 959 (9th Cir. 2002) ........................................................................ 21, 22 Schad v. Mt. Ephraim, 452 U.S. 61 (1981) ........................................................................................... 8, 9 Sefick v. Chicago, 485 F. Supp. 644 (N.D. Ill. 1979)......................................................................... 9 Sefick v. Gardner, 164 F.3d 370 (7th Cir. 1998) .............................................................................. 24 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ........................................................................................... 17 United States v. Playboy Entmt Group, 529 U.S. 803 (2000) ..................................................................................... 14, 15 United States v. Virginia, 518 U.S. 515 (1996) ........................................................................................... 24 Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ............................................................................................. 7

18 Winter v. NRDC, Inc., 19

555 U.S. 7 (2008) ................................................................................................. 7

20 White v. City of Sparks, 21 22 23 24 25 26 27 28 v

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500 F.3d 953 (9th Cir. 2007) ................................................................................ 8

1 2

I. INTRODUCTION This case presents a clear and egregious violation of plaintiff Efren Montiel

3 Jimenezs First Amendment rights by the County of San Bernardino. Simply put, 4 the County invited Plaintiff and other local artists to display their artwork at the 5 Countys Government Center in honor of National Hispanic Heritage Month and 6 then summarily censored artworks depicting nudity. This content-based restriction 7 of speech, based purely on a matter of taste, is improper and unlawful. By this 8 Application, Plaintiff seeks a temporary restraining order (TRO) enjoining the 9 County from censoring his artworks and depriving him of his right to free 10 expression under the First Amendment to the United States Constitution. 11

The facts of this case closely mirror those of Hopper v. City of Pasco, 241

12 F.3d 1067 (9th Cir. 2001), in which the Ninth Circuit held that the City of Pasco 13 violated artists First Amendment rights by creating a designated public forum and 14 then excluding their artwork without a compelling governmental interest. As in 15 Hopper, the County turned the rotunda of the County Government Center into a 16 designated public forum by consistently opening the space to local artists to 17 display their artwork without any restrictions on the content of works displayed. 18 Five of Plaintiffs paintings were initially displayed at the exhibit, but after 19 purportedly receiving complaints from visitors or County employees, the County 20 required that two of Plaintiffs paintings and one painting by artist Armando 21 Aleman be removed from the Government Center because they depict nude 22 figures. 23

As in Hopper, the Countys assertion that children or County employees

24 might be offended by the nude images does not constitute a compelling 25 government interest for removing Plaintiffs paintings from the Government 26 Center. It is well established that nudity alone is not sufficient to justify censorship 27 of free expression. Indeed, artworks depicting nude human figures have been a 28 part of our government buildings and public spaces for millennia. Nude images 1 Memorandum ISO Plaintiffs Application for a TRO

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can be found at our most esteemed government buildings, including the Stanley Mosk Library and Courts Building in Sacramento, the County Courthouse in Riverside, and the U.S. Department of Justice Building and the Rayburn House Office Building in Washington, D.C. Accordingly, it is improper and unlawful for the County to censor Plaintiffs artworks solely because they depict nude images. the Countys refusal to display Plaintiffs paintings constitutes a violation of his First Amendment rights Plaintiff respectfully requests that this Court grant this Application for a TRO and enjoin the County from continuing to unlawfully refuse to display Plaintiffs paintings at the Government Center. Plaintiff has already suffered harm to his First Amendment rights as a result of the Countys actions and will continue to suffer irreparable injury in the absence of a TRO. II. STATEMENT OF FACTS The County of San Bernardino (the County) has been inviting diverse groups of artists to display their work at its Government Center since the building opened in 1985. Among the annual art exhibits that take place at the Government Center is the Hispanic Heritage Month Art Exhibit. Declaration of Rudy Ramirez (Ramirez Decl.), 2; Declaration of Lisa J. Kohn (Kohn Decl.), Exs. T-U. This years Hispanic Heritage Art Month Art Exhibit included five paintings by Plaintiff until County officials ordered the removal of two of the paintings from display based on their purportedly offensive subject matter. Ramirez Decl., 6-7; Declaration of Brad Borrero (Borrero Decl.), 5. A. The Countys Policy and Practice of Hosting Art Exhibits in the Second-Floor Gallery of the Government Center Rotunda. The County of San Bernardino has a long history of displaying artwork at its Government Center. Kohn Decl., 8-9 and Exs. K-DD. For decades, the County has been using the second-floor gallery of the Government Center as an exhibition space for a number of recurring and one-time art exhibits. Kohn Decl., 8 and
2 Memorandum ISO Plaintiffs Application for a TRO

Exs. K-CC.1 Among its recurring art exhibits are the Recycled Art show,

2 Young Artists Gallery, Arts Council Members Exhibition, and a series of 3 exhibits to honor Black History Month and Mental Health Month. Id. at Exs. K-S. 4 Over the years, the County has hosted a wide range of one-time art exhibits, 5 including Children of Children: Portraits and Stories of Teenage Parenting, 6 Liquid Art (a photographic exhibit of the Metropolitan Water District of 7 Southern California), EKPHRASTIC SHOW, Allensworth: 100 years of the 8 California Dream, and Heart Gallery of America (a traveling photography and 9 audio exhibit of hard-to-place foster children). Id. at Exs. V-CC. 10

In addition to these various art exhibits, the County commemorates Hispanic

11 Heritage Month each year with an art exhibit at the Government Center. Ramirez 12 Decl., 2. The Hispanic Heritage Month Art Exhibit is hosted by the San 13 Bernardino County Hispanic Employees Alliance (HEP) and the Inland Empire 14 Latino Art Association (IELAA). Id. The purpose behind the Hispanic Heritage 15 Month Art Exhibit is to showcase the diversity and talent of local artists and 16 educate the general public about the Hispanic creative experience. Id. The first 17 Hispanic Heritage Month Art Exhibit was held in September October 2009 and it 18 has since become a beloved annual tradition within the San Bernardino 19 community. Id. This year marks the fifth annual Hispanic Heritage Month Art 20 Exhibit (the 2013 Exhibit). Id. 21

When the County invited local artists and County employees to submit their

22 artwork for display at the 2013 Exhibit, the County had no policy or written 23 guidelines governing what art could or could not be displayed at the Government 24 Center as a County spokesperson freely admitted to the press. Kohn Decl., Ex. 25 HH. The County did not inform the IELLA of any restrictions on types of works 26 or content of works that could be displayed. Ramirez Decl., 4; Borrero Decl., 27 28
1

The Government Center is also home to several permanent art installations. Kohn Decl., 5.
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4; Kohn Decl., Ex. GG. A County flyer soliciting submissions did not include any restrictions for the content of the artwork submitted. Borrero Decl., Ex. D. The County did not pre-screen any of the artworks to be displayed in the Hispanic Heritage Month Art Exhibit. Kohn Decl., Ex. GG. For the past five years, all artworks submitted by artists have been displayed in the Hispanic Heritage Month Art Exhibit. Ramirez Decl., 4. B. Plaintiffs First Amendment-Protected Paintings. Plaintiff is a Mexican-born surrealist artist, whose paintings have been displayed at numerous exhibitions in Mexico and California. He is an accomplished visual artist and has garnered several awards and distinctions for his paintings over the course of his career. Ramirez Decl., 5. Plaintiff had five of his paintings displayed at the 2013 Exhibit, including a painting entitled Connection and another entitled Allegory and Fantasy. Id. at 6. Plaintiffs painting Connection portrays a series of sculpturesoversized profiles of a womans face and silhouettes of a female body. In front of the towering sculptures are two nude female figures. The first of the two figures is seated at the lower righthand corner of the canvas, with one arm draped around a bent leg and head turned to face the ocean. Behind this figure is a sculpture whose shape mimics her posture. The second, more diminutive, female figure is situated standing behind the sculpture, which partially obstructs the view of the lower part of the figure. In the upper left-hand corner of the painting, a womans face appears faintly in the sky. The painting explores the connection between the female form and its representation in modern art. See Ramirez Decl., Ex. A.
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Plaintiffs painting Allegory and Fantasy centers on the profile of a womans face. A snake wraps around her ears while large, colorful butterfly wings extending from either side of her head. A nude female figure is depicted reclining overhead, while two nude female figures play the flute, nestled within nature-filled scenery, including birds, mushrooms, green grapes, and flora and fauna. This painting explores the interplay between nature and beauty. See Ramirez Decl., Ex. B. C. The Countys Removal of Plaintiffs Paintings from the 2013 Exhibit. Shortly after the 2013 Exhibit opened on September 16, 2013, the County demanded that three paintings be removed from display in the second-floor gallery. On or about September 17 or 18, 2013, Falisa Cardona, Deputy Public Information Officer at the County, informed IELAA President Rudy Ramirez and IELAA member Brad Borrero that three of the displayed paintings must be removed because someone complained. Ramirez Decl., 8; Borrero Decl., 6. Ms. Cardona identified the three paintings at issue Connection and Allegory and Fantasy by Plaintiff and a third painting Prayers to the Gods by artist Armando Aleman.
Prayers to the Gods by Armando Aleman Allegory and Fantasy by Efren Montiel Jimenez

Id. The one commonality shared by the three removed paintings is the depiction of nudity. When asked who had commanded the paintings removal, Ms. Cardona named Dena Smith, Deputy Executive Officer of the County. Ramirez Decl., 9;
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Borrero Decl., 6. At Ms. Cardonas behest, Mr. Ramirez removed the paintings from display and returned them to the artists. Ramirez Decl., 9. According to spokesperson for the County of San Bernardino, David Wert, the paintings had been removed from display because it was [not] fair for people in their workplace to be subjected to something that they felt was offensive. Kohn Decl., Ex. GG. Mr. Wert emphasized, We [] have personnel rules that guarantee employees a work environment where theyre not subjected to offensive images. Id., Ex. HH. Mr. Wert also insisted that [p]eople dont go to the Government Center to see art, but rather to attend to administrative business. Id. The removal of the three paintings from the 2013 Exhibit marks the first time that artwork has been removed for inappropriate content in the five-year run of the Hispanic Heritage Month Art Exhibit. Ramirez Decl., 11. The unprecedented removal of the paintings from the 2013 Exhibit has already had a chilling effect on free expression in the community. Following the removal of the paintings from the 2013 Exhibit, local artist Brad Borrero worried that three of his displayed paintings that depicted female nudity were vulnerable to removal by the County. Borrero Decl., 8. As a result, Mr. Borrero felt compelled to censor three of his own paintings depicting female nudity, to ensure their continued display at the 2013 Exhibit. Id.

Who Demonized the Female Form? by Brad Borrero

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III. ARGUMENT Temporary Restraining Order Standards. The standard for issuing a temporary restraining order is identical to the

4 standard for issuing a preliminary injunction. NML Capital, Ltd. v. Spaceport Sys. 5 Intl, Ltd., 788 F. Supp. 2d 1111, 1117 (C.D. Cal. 2011). A party seeking a 6 preliminary injunction must show: (1) he is likely to succeed on the merits, (2) he 7 is likely to suffer irreparable harm in the absence of preliminary relief, (3) the 8 balance of equities tip in his favor, and (4) an injunction is in the public interest. 9 Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Alternatively, an injunction also 10 should issue if Plaintiff can show serious questions going to the merits and a 11 balance of hardships that tips sharply towards [plaintiff], so long as he also 12 shows that there is a likelihood of irreparable injury and that the injunction is in the 13 public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 14 (9th Cir. 2011).2 15 16 17 18 19 20 21

B.

Plaintiff Is Likely to Succeed on the Merits of His First Amendment Claim. Plaintiff is likely to succeed on his claim for violation of 42 U.S.C. 1983

for the deprivation of his First Amendment right to freedom of expression, because his paintings are forms of expression entitled to full First Amendment protection, and the County created a designated public forum and then excluded Plaintiffs artwork without a compelling governmental interest or a narrowly tailored scheme

22 for exclusion. See Hopper, 241 F.3d at 1070. [I]n assessing a First Amendment 23 24 25 26 27 28

Plaintiffs may provide a broad range of evidence to support an injunction. [A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). The evidentiary rules are relaxed because courts recognize the difficulties associated with gathering evidence while pressed with the urgency of a preliminary injunction motion. See Flynt Distrib. Co., v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). As a result, courts may give even inadmissible evidence some weight, when to do so serves [the] purpose of preventing irreparable harm before trial. Id.
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claim for speech on government property, a court must identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic. Id. at 1074 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797 (1985). Where the government property involved is a public or a designated public forum, exclusion on the basis of content is permissible only when it is necessary to serve a compelling state interest and is narrowly drawn to achieve that interest. Id. 1. Plaintiffs Paintings Are a Protected Form of Expression Under the First Amendment. Freedom of expression is a fundamental right protected by the First

11 Amendment to the U.S. Constitution. The visual arts, including paintings, 12 constitute a quintessential form of expression protected by the First Amendment. 13 See Natl Endowment for the Arts v. Finley, 524 U.S. 569, 602 (1998) (It goes 14 without saying that artistic expression lies within First Amendment 15 protection.); Kaplan v. California, 413 U.S. 115, 119-120 (1973) (Pictures, 16 films, paintings, drawings, and engravings . . . have First Amendment protection). 17 As the Ninth Circuit has recognized, through painting, an artist conveys his sense 18 of form, topic, and perspective . . . . Any artists original painting holds potential to 19 affect public attitudes, by spurring thoughtful reflection in and discussion among 20 its viewers. So long as it is an artists self-expression, a painting will be protected 21 under the First Amendment, because it expresses the artists perspective. White 22 v. City of Sparks, 500 F.3d 953, 956 (9th Cir. 2007) (internal citations omitted). 23

With respect to nudity, the Supreme Court has unequivocally held that

24 nudity alone is not enough to make material legally obscene. Jenkins v. 25 Georgia, 418 U.S. 153, 161 (1974). For example, the Court has held that an 26 entertainment program could not be prohibited solely because it displays a nude 27 human figure. Schad v. Mt. Ephraim, 452 U.S. 61, 66 (1981). Simply put, nudity 28 does not place otherwise protected works outside the ambit of the First 8 Memorandum ISO Plaintiffs Application for a TRO

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Amendment. Id.; see also Osborne v. Ohio, 495 U.S. 103, 112 (1990) (explaining that depictions of nudity, without more, constitute protected expression.). Here, Defendant does not contend that Plaintiffs paintings are obscene or pornographic. Instead, Defendants sole reason for excluding Plaintiffs paintings from the art exhibit was due to the mere depiction of nudity. As reiterated by the

6 Supreme Court, time and time again, the portrayal of nudity alone does not suffice 7 to disqualify a work of art from the protections of the First Amendment. See 8 9 10 11 12 13 14 15 16 17 18

Jenkins, 418 U.S. at 161; Schad, 452 U.S. at 66; Osborne, 495 U.S. at 112. Accordingly, Plaintiffs original paintings are entitled to the full protection of the First Amendment. 2. Defendant Created a Designated Public Forum by Intentionally Opening the Government Center to Expressive Activity. Defendant has turned the second-floor gallery in the rotunda of the County Government Center into a designated public forum by consistently and repeatedly inviting local artists to exhibit their artworks in the space. In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45 (1983). The

19 Constitution forbids a State to enforce certain exclusions on public property 20 which the State has opened for use by the public as a place for expressive activity, 21 even if it was not required to create the forum in the first place. Id. A 22 designated public forum is created when the government intentionally opens a 23 nontraditional forum for public discourse. DiLoreto v. Downey Unified Sch. Dist. 24 Bd. of Educ., 196 F.3d 958, 964 (9th Cir. 1999). For example, in Sefick v. City of 25 Chicago, 485 F. Supp. 644, 650 (N.D. Ill. 1979), the court held that the plaintiff 26 had a First Amendment right where defendants have voluntarily provided a public 27 forum and invited plaintiff to display his form of art at a public facility. In 28 determining whether the government has created a designated public forum, a 9 Memorandum ISO Plaintiffs Application for a TRO

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court looks to the policy and practice of the government, as well as the nature of the property and its compatibility with expressive activity[.] Hopper, 241 F.3d at 1075 (citing Cornelius, 473 U.S. at 802). a. Defendants Lack of Policy and Practice Demonstrates Its Intent to Create a Designated Public Forum. As part of the policy and practice inquiry, courts examine the selectivity with which the forum was open to particular forms of expression. Hopper, 241 F.3d at 1078. [T]he more restrictive the criteria for admission and the more administrative control over access, the less likely a forum will be deemed public. Id. The Ninth Circuit has held that the absence of substantive control over the content of an arts program, lack of content-screening procedures, and nonexistence of definite standards for the exclusion of art resulted in the creation of a designated public forum in a city hall art gallery. Id. In Hopper, the city rejected for exhibition a bronze sculpture depicting a large nude, headless womanwhose naked back side faced the vieweras well as a series of prints capturing the naked couple of Adam and Eve in a variety of landscapes and scenesseveral of which depicted the couple kissing or embracing. Id. at 1072. The court observed that the city had invited artists to submit of art work of any form and opened its doors to all comersevincing an intent to permit unrestricted expression. Id. at 107980. In holding that the exclusion of the artworks violated the artists First Amendment right, the court explained: The record is clear that the Arts Council itself undertook no screening and, that it affirmatively solicited the purportedly controversial works at issue here. Combined with the fact that the city established no specific criteria for exclusion of art from the program, we are bound to conclude that the city opened its halls to expressive activity and thereby created a designated public forum in the art gallery. Id. at 1078. Moreover, the Ninth Circuit found fault with the citys purported policy of avoiding controversial art, where application of the policy was left entirely to
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the discretion of city administrators. Id. at 1079. In particular, the court noted the potential for abuse of such unbounded discretionespecially where the citys enforcement of the policy was in practice, contingent upon the subjective reaction of viewers, as perceived by the city management. Id. at 1079-80. Where the

5 citys policy was simply a ban on controversial art, the court warned that 6 censorship by public opinion only adds to the risk of constitutional 7 impropriety. Id. at 1080. While community standards of decency may 8 permissibly factor into the regulation of government property, the court stressed 9 that such standards [must] be reduced to objective criteria set out in advance. Id. 10

Here, the Government Center has been hosting the Hispanic Heritage Month

11 Art Exhibit for five consecutive years, in addition to art exhibits to commemorate 12 Mental Health Month and Black History Month over the years. Ramirez Decl., 2 13 Kohn Decl., Exs. P-U. As in Hopper, Defendant failed to issue any guidelines in 14 advance to control the content in past or present exhibits and chose not to preview 15 the content of the submissions before the artwork went on display. See Hopper, 16 241 F.3d at 1078-79. Defendants website and promotional materials did not 17 include any guidance or standards for what types of art it sought to include in the 18 exhibit. Kohn Decl., Ex. F. To illustrate, Defendants press release for the 19 Hispanic Heritage Month Art Exhibit simply stated, Residents are encouraged to 20 submit their artwork for display. Id. Defendant cast a wide and undiscriminating 21 net in soliciting art submissions from local artists, and the admissions process was 22 not a selective one. As in Hopper, Defendants exhibit was open to artwork of any 23 form, with no restrictions on the type of content allowed. See Hopper, 241 F.3d at 24 1079. As a result, one artist submitted a painting portraying a persons nude 25 backside, while Plaintiff submitted a pair of paintings depicting nude women 26 sitting and standing all of which Defendant proceeded to display as a part of the 27 2013 Exhibit in the second-floor gallery of the Government Center. However, 28 after the paintings had been displayed in the gallery, Defendant ordered them 11 Memorandum ISO Plaintiffs Application for a TRO

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removed from display on account of their purportedly offensive subject matter. Kohn Decl., Ex. HH. Defendants removal of Plaintiffs paintings from the art exhibit was an entirely post hoc decision, with no reference to a pre-existing policy or practice. Even more problematically, according to the County, its removal of Plaintiffs paintings was driven by the subjective reaction to the paintings by the Government Centers visitors and employees, as perceived by the County officials further underlining the subjectivity involved in the decision to remove the paintings. See Hopper, 241 F.3d at 1080. Defendant was certainly free to incorporate the local community standards of decency in devising a set of objective criteria to govern the display of art in the Government Center. However, Defendant failed to establish any such objective standards in advancesimply entrusting County officials with unrestricted discretion to exclude artwork from display. By inviting artists to submit their work without any stipulations, the County evinced an intent to permit unrestricted expression. See id. As a result, the County created a public forum specifically, a designated public forum in the second-floor gallery of the Government Center. b. The Nature of Defendants Property Is Compatible with the Expressive Activity at Issue. In addition to inspecting the governments policy and practice, courts consider whether the expressive activity is consistent with the principal function of the forum, to determine the public or nonpublic nature of a forum. Id. at 1078. Within this inquiry, courts look at the specific forum to which the would-be speaker seeks access, as well as the property as a whole. Id. In Hopper, the Ninth Circuit explained that where the purpose of an exhibit was to enhance the aesthetic appeal of the city hall, the art exhibit displayed at the city hall was consistent with the nature of the property. Id. at 1081. Despite some
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evidence that unrestricted artist expression could be deemed inappropriate for certain users of city hall, the court found no evidence that the displays, even controversial, would have directly affected the running of the city government. Id. Thus, the court concluded that the compatibility factor weighed in favor of finding a designated public forum. Id. Similarly, in Henderson, the court noted the physical separation of the

7 everyday work areas from the art display in the city halls Rotunda, to conclude 8 that the artworks did not disrupt the principal function of the building. City of 9 Murfreesboro, 960 F. Supp. 1292, 1297-98 (M.D. Tenn. 1997). The court 10 reasoned that [w]hile employees certainly have had access to the Rotunda and 11 might enter it on occasion, it does not comprise the primary workplace of the citys 12 employees. Id. at 1298. Thus, as the bulk of the work areas are not located in or 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

near the Rotunda, the nature of the forum weighed in favor of finding that the Rotunda was a designated public forum. Id. Here, Defendant has regularly hosted themed art exhibits in the Government Centers Rotundain the past, to celebrate Black History Month and to raise awareness of mental illness among its residents. Kohn Decl., Exs. P-S. The purpose behind the present Hispanic Heritage Month Art Exhibit was twofold: to commemorate Hispanic Heritage Month and to continue to provide a stable support system for the local arts. By using the art exhibits to highlight issues of significance to the local community and to promote and display the works of local artists, Defendant has confirmed that the expressive activity is consistent with the nature of the Government Center. See Hopper, 241 F.3d at 1081. Moreover, the majority of the offices in the Government Center are not situated in or near the second-floor gallery, where art exhibits are held. The second floor of the Government Center houses four County departments, while 13 other County departments are located on other floors. Kohn Decl., 6, Ex. I. The Board of Supervisors meetings are held in the Covington Chambers, on the first
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floor of the Government Center. Id., 7, Ex. J. Thus, the art exhibits in the second-floor gallery hardly pose a disruption to any employees regular work day. Most of the work areas are concentrated on other floors of the Government Center, while employees who work on the second floor work within the confines of their own offices. No employee spends his or her regular work day inside the gallery. As discussed earlier, the County has used the second-floor rotunda as an exhibition space for many yearsa practice it surely would have stopped had the exhibits interrupted the work performed by Government Center employees. 3. Defendants Removal of Plaintiffs Artwork Cannot Survive Strict Scrutiny Because It Was Not Narrowly Tailored in Furtherance of a Compelling Governmental Interest. The extent to which the government may limit access to a forum depends on

13 whether the forum is public or nonpublic. Cornelius, 473 U.S. at 797. 14 Restrictions on expressive activity in designated public fora are subject to the 15 same limitations that govern a traditional public forum, i.e., strict scrutiny. 16 Hopper, 241 F.3d at 1074 (citing DiLoreto, 196 F.3d at 964-65 (internal citations 17 omitted)). In a public forum, the rights of the State to limit expressive activity are 18 sharply circumscribed . . . . For the State to enforce a content-based exclusion it 19 must show that its regulation is necessary to serve a compelling state interest and 20 that it is narrowly drawn to achieve that end. Hopper, 241 F.3d at 1081 (citing 21 Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45 (1983)). 22 23

a.

Defendant Censored the Paintings on the Basis of Content.

The County censored Mr. Jimenezs and Mr. Alemans paintings on the

24 basis of their content the inclusion of nude human figures in those paintings. 25 See, e.g., United States v. Playboy Entmt Group, 529 U.S. 803, 812 (2000) (law 26 that restricts only sexually explicit adult programming is a content-based 27 restriction on speech subject to strict scrutiny). To the extent the County contends 28 that it censored the paintings not based on their content, but on the complaints of 14 Memorandum ISO Plaintiffs Application for a TRO

some viewers, that argument is unavailing. See, e.g., Forsyth County v. Nationalist

2 Movement, 505 U.S. 123, 134 (1992) (Listeners reaction to speech is not a 3 content-neutral basis for regulation.). Because the County forced paintings to be 4 taken down based on their content, their actions are valid only if they survive strict 5 scrutiny. See Playboy Entmt , 529 U.S. at 813. 6 7 8

b.

Defendant Has Failed to Articulate a Compelling Interest for Excluding Plaintiffs Artwork from the Exhibit.

In order to survive strict scrutiny analysis, Defendants must show that the

9 exclusion of Plaintiffs paintings was necessary to serve a compelling interest. See 10 Hopper, 241 F.3d at 1074. It is well established that [t]he mere fact that the 11 works caused controversy is, of course, patently insufficient to justify their 12 suppression. Id. at 1081. 13

The Supreme Court and the Ninth Circuit consistently have rejected

14 similarly vague and unsupported rationales for the censorship of art containing 15 nude images. In Hopper, the Ninth Circuit rejected the citys contention that the 16 17 18 19

presence of employees, children, and citizens seeking to conduct their business with the city factored into its decision to take down a painting depicting nudity. Id. The court held that we find none of the citys reasons for excluding the art work compelling. Id. For example, the court reasoned that while children may pass

20 through the hallways of the building, the city offered no evidence to suggest that 21 22

children would be harmed by, or even saw, the works. Id. In Erznoznik v. Jacksonville, 422 U.S. 205, 206, 217 (1975), the Supreme

23 Court invalidated a municipal code that made it a public nuisance to exhibit a 24 motion picture, visible from public streets, in which buttocks and bare breasts were 25 shown. The city argued that it could protect its citizens from unwilling exposure to 26 materials that might be offensive. Id. at 208. The Court declared that the First 27 Amendment strictly limits the power of the government to selectively shield the 28 public from some kinds of speech on the ground that they are more offensive than 15 Memorandum ISO Plaintiffs Application for a TRO

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others. Id. at 209. Such selective exclusions, the Court stressed, were permissible only where the speaker intrudes on the privacy of the home, or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure. Id. (internal citations omitted). Moreover, the captive audience theory had been sharply limited to those instances where substantial privacy interests are being invaded in an essentially intolerable manner. Id. at 210 (citing Cohen v. California, 403 U.S. 15, 21

8 (1971)). In situations where speech might merely be offensive to a viewer, the 9 burden normally falls upon the viewer to avoid further bombardment of [his] 10 sensibilities simply by averting [his] eyes. Id. at 210-11 (internal citations 11 omitted). In Erznoznik, the screen of a drive-in theater was not so obtrusive as to 12 make it impossible to avoid. Id. at 212. In addressing the issue of minor viewers, 13 the Court declared that [i]n most circumstances, the values protected by the First 14 Amendment are no less applicable when government seeks to control the flow of 15 information to minors. Id. at 214. Noting that [c]learly all nudity cannot be 16 deemed obscene even as to minors, the Court held, Speech that is neither 17 obscene as to youths nor subject to some other legitimate proscription cannot be 18 suppressed solely to protect the young from ideas or images that a legislative body 19 thinks unsuitable for them. Id. at 213-14. 20

Here, the County has asserted that the possibility that children will view the

21 artwork justifies removing Plaintiffs paintings. Yet Defendant has never asserted 22 that any children actually noticed Plaintiffs paintings in the second floor of the 23 rotunda or that any children were harmed by the paintings content in any way. 24 Without a scintilla of evidence to support their theory that children were harmed by 25 Plaintiffs paintings, Defendants cannot seriously argue that the removal of the 26 paintings was motivated by a compelling interest to protect children. 27

Plaintiffs paintings do not portray nude figures in a sexually explicit,

28 titillating, or provocative manner. Instead, the nude women in Plaintiffs paintings 16 Memorandum ISO Plaintiffs Application for a TRO

1 2

are portrayed standing, reclining, or sitting serenely, surrounded by a collection of other images butterflies, flowers, grapes, water, and abstract shapes. Ramirez

3 Decl., Exs. A-B. The County does not contend that the excluded art was obscene. 4 However, despite the utter lack of any obscene content in Plaintiffs paintings, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant passed a blanket, un-nuanced judgment on nudity that discounted the artistic and educational value that the paintings could have to both adult and minor viewers. Moreover, visitors or employees of the Government Center would have to make a conscious effort to visit the second-floor gallery to view the art on display and to see Plaintiffs paintings. Even if viewers did not anticipate the exhibits inclusion of artwork depicting nudity, an offended viewer could easily avert his or her eyes to avoid further exposure. c. Defendants Standard for the Exclusion of Artworks in the Exhibit Failed to Adequately Limit the Discretion of County Officials. Even if the County could articulate a compelling interest for taking down Plaintiffs paintings, the County wholly lacked a standard for the exclusion of artworks and failed to consider any remedy other than wholesale censorship thereby failing the constitutional requirement of narrow tailoring. The Supreme Court has recognized that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forums use. Our distaste for censorship reflecting the natural distaste of a free people is deep-written in our law. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) (holding that municipal boards denial of an application to present the musical Hair at a municipal theater was an unconstitutional prior restraint). Restrictions which grant state officers unguided discretion fail to regulate with the narrow specificity required by the First Amendment. Henderson, 960 F. Supp. at 1300 (internal citations omitted).
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Accordingly, a vague standard like controversialness fails the narrow tailoring requirement, because it fails to adequately limit the discretion of the government in approval or disapproval of artworks. Hopper, 241 F.3d at 1082. In Henderson, the government raised the elimination of sexual harassment and discrimination in the workplace as a compelling governmental interest for excluding a semi-nude painting. Henderson, 960 F. Supp. at 1298. However,

7 while recognizing that eradicating discrimination against women was a compelling 8 government interest, the court faulted the manner in which the government had 9 chosen to further this interest. Id. at 1299 (emphasis added). The court found that 10 at the time of the artworks removal, the decision to do so was guided only by the 11 perceptions and common sense of the municipal officers of the defendant. Id. at 12 1300. The city had invited original works of art with no restrictions as to subject 13 matter and with no provisions that it would accept only certain subject matters. Id. 14 at 1299-1300. Thus, the court concluded that the city failed to draw sufficiently 15 narrowly tailored content-based restrictions of First Amendment expression in its 16 17 18 19 20 21 22 23 24 25 26 27 28

initial criteria which guided the action of removing the painting. Id. at 1301. Here, along with the protection of children, Defendant has cited personnel rules that guarantee employees a work environment where theyre not subjected to offensive images as another justification for removing Plaintiffs art. Kohn Decl., Ex. HH. Even if abiding by personnel rules can be considered a compelling government interest, the Countys standard for excluding Plaintiffs art was far from narrowly tailored, as is required by the First Amendment. As in Hopper, this case boils down to a matter of taste and perception. See Hopper, 241 F.3d at 1070. County Spokesperson David Wert explained that the County removed Plaintiffs paintings because they were offensive an explanation that plainly evidences standard-less discretion. At the time of the paintings removal, the County had no guidelines or restrictions on artwork displayed in the Government Center. Kohn Decl., Ex. HH. As a result, the decision to remove Plaintiffs
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paintings from the 2013 Exhibit was guided by nothing other than the subjective perceptions of County officials. See Henderson, 960 F. Supp. at 1300. Absent narrow tailoring in the formulation of a standard for the inclusion and exclusion of art from the public exhibit, the Countys removal of Plaintiffs paintings cannot pass First Amendment muster. 4. The County, Not the Hispanic Employees Alliance, Demanded That The Paintings Be Removed. Recognizing that the County created a designated public forum by inviting artists to exhibit their artworks in the second-floor gallery of the Government Center and that it had no compelling interest in removing Plaintiffs paintings from the 2013 Exhibit, the County now claims that it did not remove Plaintiffs artwork from display. Kohn Decl., 14, Ex, II. However, there is no evidence to support the Countys post-hoc assertion that the HEA was responsible for the removal of

14 the artwork. It was Deputy Public Information Officer Felisa Cardona, a 15 representative of the County (not the HEA), who informed Mr. Ramirez and Mr. 16 Borrero that Plaintiffs paintings must be removed. Ramirez Decl., 8; Borrero 17 Decl., 6. When Mr. Borrero asked her who told her that the paintings had to be 18 removed, she named a high-ranking County official, Deputy Executive Officer 19 Dena Smith (not the president or any member of the HEA). Ramirez Decl., 9; 20 Borrero Decl., 6. Moreover, the Countys Public Information Officer David 21 Wert has made several statements to the media regarding the Countys removal of 22 the paintings. In each instance, Mr. Wert acknowledged and defended the 23 24 25 26

Countys decision to require the paintings to be removed. Kohn Decl., 13, Exs. FF-HH. For example he stated, The county doesnt believe its censorship because the county isnt an art gallery. People dont go to the Government Center to see art. Id., Ex. HH. Clearly, if the County had not demanded that the

27 paintings be removed, Mr. Wert would have told the press exactly that. The 28 19 Memorandum ISO Plaintiffs Application for a TRO

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County cannot shield itself from Plaintiffs First Amendment claims by pointing the finger at the HEA. Furthermore, the County did not remedy its violation of Plaintiffs First Amendment rights when Dena Smith, Deputy Executive Officer of the County of San Bernardino, purportedly sent a letter to HEA President Gloria Perez, stating The space on the second floor of the County Government Center remains available for the display of all artwork as selected by HEA. Kohn Decl., 13, Ex. II. The HEA neither selected the artwork to be displayed in the 2013 Exhibit (the IELAA did), nor ordered its removal (the County did). Furthermore, it is unclear exactly what Ms. Smiths statement meant. She did not even mention the removal of the paintings and certainly did not say that that the removed paintings could be restored. In any event, the County could not possibly remedy its violation of Plaintiffs First Amendment rights by communicating to the HEA that it would display artwork selected by the HEA. Significantly, the County did not provide a copy of this letter and did not communicate any willingness to restore the paintings that it had demanded be removed to Plaintiff, the IELAA, the ACLU, or the NCAC until Plaintiff gave notice of this action. Having violated Plaintiffs rights, the County was obligated to inform Plaintiff that his paintings could be put back on display. Instead, it purposely did not do so and continued to violate Plaintiffs First Amendment rights, making this Application necessary. C. Absent Injunctive Relief, Plaintiff Will Suffer Irreparable Harm. Plaintiff will suffer significant irreparable harm if this injunction is not granted. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir. 1983). Under the law of the Ninth Circuit, a party seeking preliminary injunctive relief in a First Amendment context can establish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment
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claim. Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 973 (9th Cir. 2002). In a case in which the injury alleged is a threat to First Amendment interests, the finding of irreparable injury is often tied to the likelihood of success on the merits. ACLU v. Reno, 929 F. Supp. 824, 851 (E.D. Penn. 1996). Here, Plaintiffs loss of his First Amendment freedoms has extended well beyond a minimal duration of time. Nearly two months have elapsed since the removal of Plaintiffs paintings from the second-floor gallery of the Government Center, despite efforts by the ACLU, the NCAC, and Plaintiffs counsel to resolve this matter. Kohn Decl., 11-12. Because Plaintiff has amply demonstrated not only the existence of a colorable First Amendment claim, but also a likelihood of prevailing on the merits of his claim, Plaintiff has shown that he will suffer irreparable injury absent the issuance of a TRO. D. The Balance of The Hardships Weighs Decidedly in Plaintiffs Favor. In the context of an application for a TRO, a court considers whether the harm to the defendant from issuance of a TRO outweighs the a harm to the plaintiff if such relief is denied. Reno, 929 F. Supp. at 851. Here, the potential harm to Defendant, if any, is the possibility of displeasing the small number of visitors and employees of the Government Center who purportedly complained about the subject matter of Plaintiffs paintings. As discussed above, the presence of the artworks in the Government Center gallery does not interrupt the work of any Government Center employee. Moreover, to encounter Plaintiffs artwork, a visitor or employee would have to voluntarily enter the second-floor gallery to view the art exhibit on display. On the other hand, denying the TRO inevitably would stifle Plaintiffs right to artistic expression. Plaintiff submitted his paintings to the Hispanic Heritage Month Art Exhibit to pay homage to his Hispanic heritage and to join the cultural dialogue between local Latino artists and County residents. As shown above, Defendants exclusion of Plaintiffs art from this dialogue seriously interferes with
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Plaintiffs First Amendment right to free expression. As a result, the balance of hardship tips decidedly in Plaintiffs favor. E. An Interim Injunction Would Serve the Public Interest. A courts inquiry into the public-interest element primarily addresses the impact on non-parties rather than parties. Sammartano, 303 F.3d at 974. In the First Amendment context, the public interest weighs in favor of allowing access to a free exchange of constitutionally protected speech. Reno, 929 F. Supp. at 851. The Ninth Circuit has observed that [c]ourts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles. See Sammartano, 303 F.3d at 974; see also Monterey Cnty. Democratic Cent. Comm. v. U.S. Postal Serv., 812 F.2d 1194, 1196 (9th Cir. 1987) (The values embodied in the first amendment . . . constitut[e] the hallmark of free societies); G & V Lounge, Inc. v. Mich. Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir. 1994) (noting it is always in the public interest to prevent the violation of a partys constitutional rights); Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999) (recognizing the potential harm to independent expression and certainty in public discussion of issues is great and the public interest favors protecting core First Amendment freedoms); Cate v. Oldham, 707 F.2d 1176, 1190 (11th Cir. 1983) (holding the strong public interest in protecting First Amendment values favored granting preliminary injunctive relief). The goal of Defendants Hispanic Heritage Month Art Exhibit was to showcase the complex and diverse culture of local Latino artists in order to educate the general public about the Hispanic creative experience. Ramirez Decl., 2. The removal of Plaintiffs paintings from the 2013 Exhibit infringes not only Plaintiffs First Amendment right to free expression; it also harms the interests of others who wish to visit the 2013 Exhibit and view the uncensored version of the exhibit. The Countys decision to remove Plaintiffs paintings flatly ignores the
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cultural and artistic value that the paintings hold for both minors and adults alike. By removing the paintings from display, the County deprived County residents of the opportunity to view and formulate their own reactions to the paintings. Defendants censorship of Plaintiffs constitutionally protected artwork based on the subjective opinions of a few County officials works an enormous disservice to the community. As a result, it is in the public interest to uphold Plaintiffs First Amendment right to free expression. F. Requiring That the Previously Censored Paintings Remain on Display for the Period of Time They Were Removed from Display Is the Appropriate Remedy Here. Because Mr. Jimenez is highly likely to prevail on the merits of his First

12 Amendment claim and because the other preliminary equitable considerations 13 weigh heavily in his favor, the Court should grant his request for a temporary 14 restraining order and issue an order to show cause as to why a preliminary 15 injunction should not issue. The TRO should require the County to do two things: 16 (1) immediately put his paintings back on display as part of the Hispanic Heritage 17 Month art exhibit, and (2) keep them on display for the full period the TRO 18 remains in effect under FRCP 65, even though the 2013 Exhibit is scheduled to end 19 on November 29, 2013. 20 21 22 23 24 25 26 27 28
3

In this case, it would be appropriate for the Court to waive any bond or require only minimal bond because the plaintiff is an individual and the party the plaintiff seeks to enjoin is a government institution. See Crowley v. Local No. 82, 679 F.2d 978, 1000 (1st Cir. 1982)(A bond requirement would have a greater adverse effect where the applicant [for injunctive relief] is an individual and the enjoined party an institution. . . .), revd on other grounds, 467 U.S. 526 (1984). In addition, Defendants would suffer no damage from the issuance of the injunction. See Conn. General Life Insurance v. New Images of Beverly Hills, 321 F.3d 878 (9th Cir. 2003) (district court has discretion to set bond amount at zero where defendant submits no evidence of damage from entry of preliminary injunction).
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Permitting the paintings to be displayed after the 2013 Exhibit is scheduled to close is necessary to ensure that the Plaintiff receive relief consistent with the basic equitable principle that a remedial order should as much as possible undo the harm the plaintiff has suffered. As the Supreme Court has explained: A remedial decree . . . must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in the position they would have occupied in the absence of [discrimination]. See Milliken v. Bradley, 433 U.S. 267, 280, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977) (internal quotation marks omitted). The constitutional violation in this case is the categorical exclusion of women from an extraordinary educational opportunity afforded men. A proper remedy for an unconstitutional exclusion, we have explained, aims to eliminate [so far as possible] the discriminatory effects of the past and to bar like discrimination in the future. Louisiana v. United States, 380 U.S. 145, 154, 13 L. Ed. 2d 709, 85 S. Ct. 817 (1965). United States v. Virginia, 518 U.S. 515, 547 (1996). If the Court were to order the County to re-display the paintings only until November 29, when the exhibit is scheduled to end, it would provide an incomplete remedy for the illegal censorship that has lasted more than two months. By contrast, requiring that the previously censored paintings remain on display for the full term of a temporary restraining order would be consistent with the purpose of an equitable remedy as set forth in United States v. Virginia.4 The Seventh Circuit has recognized the propriety of an injunctive order of this kind. In Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (Easterbrook, J.), the court stated that a violation of First Amendment rights can be remedied by requiring that the expression that was impermissibly restricted be allowed, even where the government had subsequently closed a forum to all displays. In Sefick,

The preliminary and permanent relief the plaintiff requests will include an order requiring the County to display the censored paintings for same number days they 28 would have been displayed absent the illegal censorship.
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an artist filed a suit against government administrators for their failure to permit his satirical art display in the courthouse. The Seventh Circuit held that the case was not moot because a court could order Seficks sculpture displayed as a remedy for a violation of his first amendment rights in 1996 and 1997, even though in 1998 the GSA stopped considering applications for new displays. Sefick, 164 F.3d at 372. V. CONCLUSION For the above stated reasons, Plaintiff respectfully requests that the Court grant this Application and enter a TRO prohibiting the County from excluding his paintings from the second-floor gallery of the Government Center, pending a hearing on an order to show cause why a preliminary injunction should not be entered.

Dated: November 26, 2013

JENNER & BLOCK LLP

By: /s/ Andrew J. Thomas Andrew J. Thomas

ACLU FOUNDATION OF OF SOUTHERN CALIFORNIA By: /s/ Peter J. Eliasberg Peter J. Eliasberg Attorneys for Plaintiff Efren Montiel Jimenez

25 Memorandum ISO Plaintiffs Application for a TRO