[59] Counsel for the City pointed to evidence that the Advertisement was tantamount to “dog whistle” politics whereby messages implicit in its visual representations were a call to certain members of society to recognize hidden visual cues and act upon same. Implicit in “dog whistle” politics is the fact that the true meaning of a message may not be readily apparent to the recipient unless that recipient belongs to a specific subset of people. A message cannot, therefore, convey both an obvious meaning and constitute “dog whistle” politics at the same time. Because the Advertisement is a purported “dog whistle” call to certain bus riders, it cannot therefore be said to constitute obvious hate speech or a blatant call to violence as was discussed in Bracken.
[60] As a Court, we offer no comment on whether the Advertisement communicates a “dog whistle” message. It is clear, however, that justifying the removal of political speech as a result of alleged subtle, hidden messages in visual imagery demands that robust explanations be given and demands that the CHP have an opportunity to participate in that inquiry. Absent such explanations, any individual could stifle otherwise valid political speech by citing subliminal messages without having to justify that position. Without denigrating the heartfelt expressions of several witnesses who provided evidence in this case, it cannot be ignored that they each brought their own subjective interpretations to the Advertisements. No two witnesses saw the same hidden message or even agreed as to what the image was actually showing. The fact that counsel for the City did not explain how the image worked as a “dog whistle” therefore causes us considerable concern.