MCGRIFF

v.

CITY OF MIAMI BEACH

____________________________________________/ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT THIS MATTER is before the Court on Defendant’s Motion for Summary Judgment (the “Motion”) (ECF 62), filed August 13, 2021. Plaintiffs filed their response in opposition to the Motion on August 27, 2021. ECF No.

75. Defendant filed its reply in support of the

Motion on September³, 2021. ECF No.

79.

Accordingly, the Motion is ripe for adjudication. The Court having reviewed the Motion, the briefing related thereto, the record, the relevant legal authorities, and being duly advised, finds, for the reasons discussed below, that the Motion should be granted.

BACKGROUND

A. Procedural Background

This case was initially filed on June 23, 2020. ECF No.

1. When filed this case was

assigned to the Honorable Ursula Ungarro, U.S. District Judge. In addition to Miami Beach being identified as a Defendant in this action, Plaintiffs’ initial complaint and First Amended Complaint, also included the Mayor of Miami Beach (Dan Gelber) and the City Manager for Miami Beach (Jimmy Morales) as defendants in this action. The claims against Dan Gelber and Jimmy Morales were brought against them in their official and individual capacities. ECF No. 9, ¶¶ 23-24. Through her Order Granting in Part and Denying In Part Defendants Motion to Dismiss, Judge Ungaro dismissed Dan Gelber and Jimmy Morales from this action. See ECF No.

39. As such, Miami Beach is the sole remaining Defendant in this action. After Judge Ungaro retired from the bench, this matter was re-assigned to the Undersigned.

B. The Parties

Plaintiff Jared McGriff (“McGriff”) is an artist and marketing manager. ECF No. 9, Am. Compl. ¶ 16. Plaintiff Octavia Yearwood (“Yearwood”) is an artist, arts educator, and art curator. Id. ¶ 19. Plaintiff Rodney Jackson (“Jackson”) is an artist and art curator. Id. ¶¶ 12, 15. Plaintiff Naiomy Guerrero (“Guerrero”) is an art curator who, at the time of the events alleged in the First Amended Complaint, was a curatorial fellow at the Pérez Art Museum of Miami (“PAMM”).

Id. ¶ 21. The Plaintiffs shall be collectively referred to herein as “Plaintiffs”. Defendant City of Miami Beach (the “City”, “Miami Beach”, “Defendant”, or “Defendant Miami Beach”) is a municipality organized and existing under the laws of the State of Florida and located in Miami-Dade County, Florida. Id. ¶ 22.

B. ReFrame Miami Beach

According to the First Amended Complaint, Miami Beach has an ugly history of racism, segregation, and discrimination. See id. ¶ 2. In recent years, the response of local law enforcement to the celebration of Memorial Day, which, on Miami Beach, has come to be known as Urban Beach Weekend (“UBW”), has reminded some of that troubled history. Id. ¶ 3. Over the past decade, tens of thousands of students and other young people, most of them Black and Latino, have come to Miami Beach during UBW. Id. ¶ 3. During UBW in 2011, Raymond Herisse (“Herisse”), a Haitian-American man, was shot and killed by Miami Beach police officers. Id. ¶ 5; see also ECF No. 21-1. In the Spring of 2019, the City decided to fund the creation of a series of art installations for display on Miami Beach during that year’s UBW. ECF No. 9, Am. Compl. ¶ 1. Calling the project “ReFrame Miami Beach,” the City said that “ReFrame sparks crucial conversations about inclusion, surveillance, and propaganda using the works of local artists, curators, and organizers.” Id. ¶ 25. The theme of the event was to be “Trust as Currency.” Id.

In April 2019, Plaintiffs McGriff and Yearwood discussed ReFrame Miami Beach with two City employees in the City’s Department of Tourism and Culture: Director Matt Kenney (“Kenney”) and Cultural Affairs Manager Brandi Reddick (“Reddick”). Id. ¶ 26. McGriff and Yearwood began working on the project shortly thereafter and contacted others in the arts community, including Jackson and Guerrero, to participate in the project. Id. ¶¶ 27-28.

On May 9, 2019, McGriff and the City signed a Professional Services Agreement pursuant to which Quinn Projects LLC, McGriff’s production company, would provide certain production services. Id. ¶ 29; ECF No. 9-1. The same day, Yearwood and the City signed a Professional Services Agreement pursuant to which Team Ohhh LLC, Yearwood’s production company, would provide certain production services. ECF No. 13-2. The two Professional Services Agreements are essentially identical and will be referred to herein as the “Agreement” for ease of reference. The Agreement refers to Quinn Projects LLC and Team Ohhh LLC as the Consultant(s), and states “[f]or the purposes of this Agreement, Consultant shall be deemed to be an independent contractor . . . of the City.” ECF No. 9-1 at 1; ECF No. 13-2 at 1. Under the Agreement, Quinn Projects LLC and Team Ohhh LLC were to coproduce the Project described in Exhibit A. ECF No. 9-1 at 2; ECF No. 13-2 at 2. Exhibit A, titled “Scope of Services,” states that Quinn Projects LLC and Team Ohhh LLC “would provide the cultural programming for ‘Trust as Currency’ for Memorial Day Weekend, May 23–27, 2019.” ECF No. 9-1 at 13; ECF No. 13-2 at 13. Exhibit A noted that the art installation that the Quinn Projects LLC and Team Ohhh LLC would exhibit at Lincoln Road in an “empty storefront” was to be called “I See You, Too,” which was to be “about how propaganda and misinformation have compromised us.” ECF No. 9-1 at 13; ECF No. 13-2 at 13. The City entered into a Temporary License Agreement with a third-party limited liability company, whereby the licensee City agreed to license the privately-owned building located at 737 Lincoln Road, Miami Beach, Florida 33139, from May 6, 2019 through May 31, 2019, “for the sole purpose of gallery exhibits.” ECF No. 13-5.

Section 2.1 of the Agreement provides that “all services provided by the Consultant shall be performed in accordance with the Proposal and to the reasonable satisfaction of the City Manager.” Id. Exhibit A states that “[a]ll installations shall be subject to review and approval by the City Manager’s designee.” ECF No. 9-1 at 13; ECF No. 13-2 at 13.

Section 9.3, titled “Patent Rights; Copyright; Confidential Findings,” states that any work produced for the exhibits and installations “are intended to be the sole and exclusive property of the City” and “shall not otherwise be made public and/or disseminated by Consultant, without the prior written consent of the City Manager.” Id. at 7.

Under the Agreement, the I See You, Too installation was to be co-curated by Yearwood and Guerrero; the Agreement does not mention Jackson. ECF No. 9-1 at 13; ECF No. 13-2 at 13. In discussing what would be exhibited in I See You, Too, Plaintiffs stressed that their central commitment, in conformity with the purpose of ReFrame, was depicting the truth about the City’s historical relationship with the Black community, as well as to permit open and honest conversations about that history. ECF No. 9, Am. Compl. ¶ 34.

C. The Herisse Memorial

Plaintiffs curated and/or created works for I See You, Too in accordance with the Agreement. Id. ¶ 35. There were several sections in I See You, Too, including a “Memorial to Raymond Herisse” painting (the “Herisse Memorial”), which Jackson created. Id.; ECF No. 9-2. The Herisse Memorial included a 4x4 foot vinyl portrait, with written text next to it stating the following: Haitian-American Raymond Herisse was 22 years old when he was shot to death by Miami Beach and Hialeah police officers on Collins Avenue during Urban Beach Week in 201. 116 shots were fired by the police, four bystanders were wounded, and 12 police officers participated in the shooting. Police suggested Herisse was firing a gun from his vehicle, gunshot residue tests released years later proved Herisse never fired a weapon that day. An examination of the record by The Miami Herald found the police narrative inconsistent, contradictory, and missing key information. His shooting changed the way Miami Beach police now interact with motorists, as now they cannot shoot into a moving vehicle unless someone inside the vehicle displays a weapon or fires first. This memorial is to honor Herisse, to affirm #blacklivesmatter and call into question the excessive force, racial discrimination, violence, and aggression often present in interactions between police and unarmed black civilians. ECF No. 9-3 (copy of description).

See also Am. Compl, ¶ 35(b) (referring to description in ECR No. 9-3). “In addition, candles had been placed below the image to convey the sense that the piece was intended as a memorial to celebrate the life of Raymond Herisse.” Id.

On May 25, 2019, Kenney spoke to Yearwood and advised that the Miami Beach Police Department objected to the Herisse Memorial and that the City required that the Herisse Memorial be taken down, and that if it was not taken down, the entire I See You, Too installation would be closed. Id. ¶¶ 37. That afternoon, Plaintiffs took down the Herisse Memorial. Id. ¶ 38. In its place, they posted a sign that read, “This artwork has been removed at the request of the Miami Beach Police.” Id. A few days later, a City spokesperson commented on the removal of the Herisse Memorial. Id. ¶ 39. While stating that the “purpose of the ReFrame cultural programming this past weekend was to create an opportunity for inclusiveness and mutual exchange,” the spokesperson said that the “City Manager felt that the panel in the one particular art installation regarding the incidents of Memorial Day weekend in 2011 did not achieve this objective.” Id. (quoting Jessica Lipscomb, Miami Beach Censors Black Artist’s Tribute to Police-Shooting Victim, MIAMI NEW TIMES (May 29, 2019 8:04 a.m.), https://www.miaminewtimes.com/news/miami-beach-city-manager-asks-for-removalofartwork-memorializing-police-shooting-victim-11183147).

On November 7, 2019, at a forum called “Community Night: For Freedoms Town Hall” at PAMM, an audience member, referring to the removal of the Herisse Memorial, asked Mayor Gelber about the “act of censorship” that had occurred the last Memorial Day weekend on Miami Beach. Id. ¶ 41. Mayor Gelber explained that City Manager Morales made the decision to take down the Herisse Memorial. Id. ¶ 42. According to Mayor Gelber, City Manager Morales said, “I don’t like [the Herisse Memorial], and I don’t want it.” Id. He also said that City Manager Morales thought he had the power to order the painting’s removal because the City was “paying for it.” Id. Mayor Gelber stated that he supported City Manager Morales’s decision and would not reverse it, although he had the power to do so. Id. ¶ 43.

D. Plaintiffs’ Cause of Action In their First Amended Complaint, Plaintiffs bring one claim pursuant to 42 U.S.C. § 1983. Id. ¶ 11. In doing so, Plaintiffs allege that Miami Beach’s actions violated their First Amendment rights and amounted to unconstitutional viewpoint censorship. See Id. ¶ 51. Plaintiffs ask the Court to: (1) enter a judgment declaring that Miami Beach violated their First Amendment rights by demanding that Plaintiffs take down the Herisse Memorial; (2) issue a permanent injunction requiring that Miami Beach display the Herisse Memorial in a public place comparable to the space in which it would have been displayed during Memorial Day weekend in 2019, and for a comparable period of time; (3) award Plaintiffs compensatory damages in an amount to be determined at trial; (4) award costs and attorney’s fees pursuant to 42 U.S.C. § 1988; and (5) grant or award such other relief as this Court deems just and proper. Id. at 11.

LEGAL STANDARD

Summary judgment “shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Allen v. Tyson Foods, Inc., 121 F. 3d 642 (11th Cir. 1997) (quoting Fed. R. Civ. P. 56(c)) (internal quotations omitted); Damon v. Fleming Supermarkets of Florida, Inc., 196 F. 3d 1354, 1358 (11th Cir. 1999).

Thus, the entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Leake v. Drinkard, 14 F. 4th 1242, 1247 (11th Cir. 2021). “The moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F. 2d 604, 608 (11th Cir. 1991). “Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Id.

Rule 56, moreover, “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324.

Thus, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks omitted). “A factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Damon, 196 F. 3d at 1358. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Abbes v. Embraer Servs., Inc., 195 F. App’x 898, 899-900 (11th Cir. 2006) (quoting Walker v. Darby, 911 F. 2d 1573, 1577 (11th Cir. 1990)).

When deciding whether summary judgment is appropriate, “the evidence, and all inferences drawn from the facts, must be viewed in the light most favorable to the non-moving party.” Bush v. Houston County Commission, 414 F. App’x 264, 266 (11th Cir. 2011).

ANALYSIS

Defendant Miami Beach argues that it is entitled to summary judgment because Plaintiffs’ claim does not implicate First Amendment rights due to the government speech doctrine.¹ ECF No. 62 at p.

3. Meanwhile, Plaintiffs argue that Defendant Miami Beach is

not entitled to summary judgment as ReFrame was not government speech because:¹) the review and approval language in the Agreement did not give the City the right to control the content of the art exhibited during ReFrame;²) the history of art does not indicate that ReFrame was government speech; and³) a reasonably informed observer would not believe that the City endorsed the art exhibited as part of ReFrame. ECF No.

75.

The Parties agree that the standard this Court should follow to resolve the government speech inquiry in this case was that articulated by the U.S. Supreme Court in Pleasant Grove City v. Summum, 555 U.S. 460 (2009) and Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015).

I. Plaintiffs’ Claim Does Not Implicate First Amendment Rights Because Government Speech is Not Subject to First Amendment Scrutiny The Free Speech Clause of the U.S. Constitution does not regulate government speech. See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009); see also Johanns v. Livestock Marketing Ass’n, 544 550, 553 (2005) (“Government’s own speech . . . is exempt from First Amendment scrutiny.”).

When the government exercises ‘the right to speak for itself,’ it can freely ‘select the views that it wants to express.’” Mech v. Sch. Bd. of Palm Beach Cnty., 806 F. 3d 1070, 1074 (11th Cir. 2015) (quoting Summum, 555 U.S. at 467); see also Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 213–14 (2015). “This freedom includes choosing not to speak and speaking through the removal of speech that the government disapproves.” Mech, 806 F. 3d at 1074 (citations, alterations, and quotation marks omitted).

Further, “[w]hen . . . the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-

speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages.” Johanns, 544 U.S. at 562 (ruling that the message set out in beef promotions pursuant to the Beef Promotion and Research Act of 1985, 7 U.S.C. § 2901 et seq., was government speech even though the government solicited assistance from a nongovernmental source (various cattle farmer associations) in developing specific messages, and rejecting the associations’ contention that the federal beef program did not qualify as government speech because it was funded by a targeted assessment of beef producers rather than by general revenues).

The U.S. Supreme Court’s decisions in Pleasant Grove City v. Summum, 555 U.S. 460 (2009) and Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015) have looked to three factors in identifying government speech: (1) history, (2) endorsement, and (3) control. See Cambridge Christian Sch., Inc. v. Fla. High Sch. Ath. Ass’n, 942 F. 3d 1215, 1223 (11th Cir. 2019); Pulphus v. Ayers, 249 F. Supp. 3d 238, 247 (D.D.C. 2017) (“Walker and Summum discuss three factors relevant to identifying government speech: (1) whether the medium at issue has historically been used to communicate messages from the government; (2) whether the public reasonably interprets the government to be the speaker; and (3) whether the government maintains editorial control over the speech.”).

As such, the Court’s analysis here will be framed around these three factors.

A. Control Factor Weighs in Favor of the City

The control factor asks whether the government “maintains direct control over the messages conveyed” through the speech in question. Walker, 576 U.S. at 213 (holding that the government had control over the message (license plate designs) pursuant to state statute that gave them “final approval authority” over their selection).

Whether the government has the power to approve certain speech is the defining inquiry in evaluating the control factor. In Summum, the Supreme Court held that the city’s rejection of a religious organization’s request to erect a monument at a city park did not violate the Free Speech Clause because the city’s decision was best viewed as a form of government speech. Summum, 555 U.S. at 467. In reaching this conclusion, the Court noted that the city had “rules governing the acceptance of artwork for permanent placement in city parks,” and requiring approval of the finished product before any piece of art would be accepted. Id. at 472.

Similarly, the U.S. Supreme Court, in Walker, ruled that the Texas Department of Motor Vehicles Board’s rejection of a proposed specialty license plate design featuring a Confederate battle flag did not violate the Free Speech Clause because specialty license plates conveyed government speech. 576 U.S. at 213–14. Like the city in Summum, the state of Texas in Walker expressly reserved “final approval authority” over all license plate designs and would reject designs inconsistent with how the state chose “to present itself and its constituency.” Id. at 213.

In another analogous case, Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005), the Court ruled that the federal government’s marketing of beef and beef products amounted to government speech because the government set the overall message to be communicated and approved the words disseminated. Johanns, 544 U.S. at 561-562. More specifically, the Court found that the government exercised final statutory approval authority over the promotional campaign because “[a]ll proposed promotional messages [were] reviewed by Department officials both for substance and for wording,” which indicated that the government was in full control and was truly the speaker. Id. at 561.

In Mech v. School Board of Palm Beach County, 806 F. 3d 1070 (11th Cir. 2015), the Eleventh Circuit followed the framework laid out in Summum and Walker and deemed the removal of banners on public school property as government speech because “final approval authority” pursuant to a school board policy allowed the school “to choose how to present itself to the community. Such authority ensured that the messages on the banners are ‘effectively controlled’ by the schools.” Mech, 806 F. 3d at 1078 (quoting Summum, 555 U.S. at 473).

The schools had approval authority over the banners’ design, typeface, color, contents, size, and location, including mandating that the school’s initials and the phrase “Partner in Excellence” appear on each banner. Id. In the instant case, Plaintiffs contend that Defendant Miami Beach cannot satisfy the control factor because the control factor is satisfied “only when the government, either by practice or by explicit language, demonstrates an intent to approve the message at issue.” ECF No. 75 at p.

6. The Court, however, does not find this argument to be persuasive: as discussed below, the contract gave the City the power to approve and review the art, and Plaintiffs cite no authority indicating that the government must follow a formal explicit process or practice when deciding whether to exercise control over its own speech.

Moreover, in Summum, the U.S. Supreme Court expressly rejected the notion that a governmental entity must adopt a formal process when deciding how to control its own speech. See Summum, 555 U.S. at 473 (stating “Respondent voices the legitimate concern that the government speech doctrine not be used as a subterfuge for favoring certain private speakers over others based on viewpoint. Respondent's suggested solution is to require a government entity accepting a privately donated monument to go through a formal process of adopting a resolution publicly embracing ‘the message’ that the monument conveys. . . . We see no reason for imposing a requirement of this sort. . . . The parks of this country contain thousands of donated monuments that government entities have used for their own expressive purposes, usually without producing the sort of formal documentation that respondent now says is required to escape Free Speech Clause restrictions. Requiring all of these jurisdictions to go back and proclaim formally that they adopt all of these monuments as their own expressive vehicles would be a pointless exercise that the Constitution does not mandate.”).

As such, the Court finds Plaintiffs’ argument to the contrary to be unavailing. Here, the Agreement gave the City control over the message intended to be conveyed in the I See You, Too installation. The Agreement provides that “[a]ll installations shall be subject to review and approval by the City Manager’s designee.” ECF No. 9-1 at p. 13 (emphasis added).

Under section 2.1 of the Agreement, all services were to be performed to “the reasonable satisfaction of the City Manager.” Id. at p.

2. In addition to the “review and approval” language contained within Exhibit A to the Agreement, the full text of Section 9.3 of the Agreement states: Any work product arising out of this Agreement, as well as all information specifications, processes, data and findings, are intended to be the property of the City and shall not otherwise be made public and/or disseminated by Consultant, without the prior written consent of the City Manager, excepting any information, records, etc. which are required to be disclosed pursuant to Court Order and/or Florida Public Records Law. ECF No. 9-1 at p.

7.

Thus, Section 9.3 broadly grants ownership rights of the work product arising out of the Agreement to the City and even prohibits publication of any works arising out of the Agreement without the prior written consent of the City Manager.

Accordingly, the Court finds that the City had the authority to review and approve works arising out of the Agreement given that under the terms of the Agreement those works could not be made public or disseminated without the City Manager’s prior written consent (Section 9.3), the installations were subject to review and approval by the City Manager’s designee (Agreement, Ex. A), and the services performed under the Agreement were to be performed to the reasonable satisfaction of the City Manager (Section 2.1).

Nonetheless, in their opposition to the City’s Motion, Plaintiffs argue that the Plaintiffs “never believed that their artistic choices would be subject to City approval, and that they would never have signed the contract had the City demanded that power.” ECF No. 75 at p. 2 (citing McGriff Affidavit at ¶ 5).

Plaintiffs also argue: The City’s argument that the contract with the Plaintiffs gave it the right of content approval over their art is not only contradicted by the City’s own employees and by the curators, but it is belied by the terms of the contract that the City signed with a production company, RER Consulting Enterprise LLC, prior to contracting with Yearwood and McGriff. ECF 63 Ds SOF ¶ 7) [sic.] That contract contained the following provision: “Any event, including cultural programming produced by Producer during Memorial Day Weekend, pursuant to this Agreement, is subject to the prior written approval of the City Manager.” ECF 63 Ds SOF ¶ 8. By virtue of that provision, “the City explicitly retained complete editorial control over all aspects of the event.” Id. The contrast in the language used in the RER contract and the Plaintiffs’ contract concerning “approval” is stark. Instead of stating that all “cultural programming” shall be “subject to the prior written approval of the City Manager,” Exhibit A of the Plaintiffs’ contract says: “All installations shall be subject to review and approval by the City Manager’s designee.” (emphasis added).

Had the City wanted the City Manager to retain editorial control over the cultural programming – including individual works of art – produced by McGriff and Yearwood, the RER contract provided the language to accomplish that purpose. Instead, the City confined “review and approval” to the “installations” and gave that responsibility, not to the City Manager, but to his designee. The curators interpreted that to mean “practical matters” such as “timing, cost, staffing, and publicity, among others.” ECF 24-1McGriff Aff. ¶ 9. As for the artistic decisions, Kenny agreed that “it was up to the curators to flesh out all of the programming for the entire weekend.” ECF 60-6 Kenny Depo. at p.

34. The “review and approval” language of Exhibit A simply had nothing to do with individual works of art. ECF No. 75 at 3-4. This argument while novel misses the mark. In essence, Plaintiffs ask the Court to go beyond the plain language of the Agreement and rely on deposition testimony and McGriff’s affidavit to discern the Parties’ true intent; however, Plaintiffs provide no legal reason that would justify the Court looking beyond the plain meaning of the terms of the Agreement and its exhibits. “Under general principles of contract interpretation, ‘[t]he plain meaning of a contract’s language governs its interpretation.’” Davis v. Valsamis, Inc., 752 F. App’x 688, 692 (11th Cir. 2018) (quoting In re FFS Data, Inc., 776 F. 3d 1299, 1305 (11th Cir. 2015) (internal quotation marks omitted)). “[A] document should be read to give effect to all its provisions and to render them consistent with each other.” Id. (internal quotation marks omitted) (citing Restatement (Second) of Contracts § 203(a) (Am. Law. Inst. 1981)). “The elementary canon of interpretation is, not that particular words may be isolatedly considered, but that the whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties, and the intention which they have manifested in forming them.” Id. (quoting O’Brien v. Miller, 168 U.S. 287, 297 (1897)). “Thus, courts look to ‘the contract as a whole to determine whether it unambiguously states the parties’ intentions.’” Id. (quoting Sander v. Alexander Richardson Invs., 334 F. 3d 712, 716 (8th Cir. 2003) and citing Feaz v. Wells Fargo Bank, N.A., 745 F. 3d 1098, 1104 (11th Cir. 2014) (stating “Traditional contract-interpretation principles make contract interpretation a question of law, decided by reading the words of a contract in the context of the entire contract and construing the contract to effectuate the parties’ intent.”)). “A contract provision is ambiguous if it ‘is susceptible to two or more reasonable interpretations that can fairly be made.’” Id. (quoting Dahl- Eimers v. Mut. of Omaha Life Ins. Co., 986 F. 2d 1379, 1381 (11th Cir. 1993)).

Here, Plaintiffs have not provided a legal basis for the Court to find the Agreement and its exhibits ambiguous. Indeed, Plaintiffs do not cite to any case law or other legal authority that would warrant the Court’s consideration of parol evidence in this case.

B. History Factor Weighs in Favor of the City

The history factor requires the court to consider whether the medium under scrutiny has traditionally “communicated messages” on behalf of the government. Walker, 576 U.S. at 211. Here, the City argues “history favors the determination of government speech because the use of art as a form of government speech began in ancient history and continues until today.” ECF No. 62 at p.

8. In support of this argument, the City relies upon the Expert Report of Dr. Thomas Folland, Ph. D, an Associate Professor of Art History at Los Angeles Mission College. In his Report, Dr. Folland opined: The use of art as a form of government speech begins in ancient history and continues until the modern period. For a large part of its history, the purpose of art was government speech. Specifically, the use of visual culture (whether it be paintings and sculptures or more recent forms of art like installation or multi-media artwork) by ruling bodies to communicate government-sponsored “messages.” Ancient societies of various world cultures used art to commemorate rulers; to honor exemplary citizens or victorious warriors; to disseminate information; to advocate or even warn potential enemies or invaders; to convey laws and rules of civil society; and even to provide models for education and moral instruction as well as religious instruction. In the modern period, the rise of art as a form of private expression did not supplant the ancient practice of art as government speech; private art co-exists with public art as can be seen in numerous official portraits of government officials, historical figures, and other people of note whose likeness are set up in public parks, government buildings, or on commemorative stamps. Modern Governments often appropriate private art to speak on behalf of government in international art fairs and biennials, or for local cultural events. ECF No. 54-1 at p.

4. Dr. Folland’s Report further provides “an overview of artistic works from ancient culture through the present day in order to highlight their role as a form of government speech and details of the specifics, whenever possible, of their commission, message, and outcome when controversy is sparked.” Id. To this point, a portion of Dr. Folland’s Report provides an analysis of government sponsored artwork throughout history. See id. pp. 4-7. In addition to the above, Dr. Folland’s Report goes on to analyze other governmentsponsored art throughout history including Florida-based art programs like Florida’s Art in State Buildings Program and the Florida Artists Hall of Fame. And, specifically with respect to the City of Miami Beach, Dr. Folland’s Report states: The City of Miami Beach has a long and rich history of using artistic works as government speech by commissioning works over which it retains approval authority. . . . Art in Public Places is a City of Miami Beach program for curating and commissioning public art. The program was created in 1984, with its ordinance adopted in 1995. The program allocates funds totaling 2% of hard costs for City Projects and joint private/public Projects. Appointed by the City Commission, the AiPP Committee’s seven members serve in an advisory capacity to the Mayor and City Commission. Artworks commissioned by the City of Miami Beach Art in Public Places are intended to add value to the public art collection, attract international attention and celebrate the diversity and heritage of Miami Beach. . . . Memorial Art is another form of art as government speech in Miami Beach. Miami Beach has several spanning decades. The most recent is a commemorative portrait bust, erected in 2018, of Barbara Baer Capitman, a writer, artist, and preservationist who was the founder of the Miami Design Preservation League and led the crusade to establish the Miami Beach Art Deco District. Her realist-style portrait bust is displayed on Ocean Drive north of 13th Street. A relief sculpture as part of a plaque commemorates Melvin J Richard, who had emigrated to Miami Beach in 1926 and eventually became the city’s Mayor, is on Collins Avenue south of 22nd Street. Nearby is a portrait bust of Simón Bolívar (erected 1997) atop a stone bock with a commemorative plaque attached that lists the names of elected officials of Miami beach, the Latin Chamber of Commerce, and a committee of private citizens, along with a dedication. Known as “El Libertador,” he was a Venezuelan military and political leader. Almost identical to Bolivar’s is portrait dedicated to José Martí (erected 1986), who had unified the Cuban émigré community in Florida. Carlos J. Finlay Marker, (erected 1949), the Cuban scientist who discovered the transmission of yellow fever and a commemorative plaque and abstract sculpture of Jackie Gleason, the comedian in whose name the City Commission, in 1987, voted to rename the Miami theater. These commemorative portraits range in style but are consistent in the fact that they are all examples of art as government speech in the City of Miami Beach. Id. at p.

15. Importantly, Dr. Folland concluded that “the ReFrame Festival, generally, and the I See You, Too installation specifically, including its Memorial to Raymond Herisse, was consistent with this history of artwork as government speech in that the City of Miami Beach contracted to commission, fund, and own the artwork, contracted to control its exhibition, contracted to control the space in which the exhibition was housed, publicized the event through City press releases, and identified it as a City event.” Id. at p.