Legal analysis of Hunter art take-down

For several weeks earlier this year, an odd battle was waged in the halls of the U.S. Capitol over a controversial work of art by a high school student placed there after an art competition in St. Louis.

At issue is whether the Architect of the Capitol had the right to direct the permanent removal of the painting, or whether doing so violated the student’s (or his Congressman’s) First Amendment Rights.

That student, and the Congressman, have now gone to U.S. District Court in Washington, DC to get an answer. As in the past, strong feelings on all sides about police officers in particular have sharpened the debate about how, when, and whether the government can be selective in its displays of expressive visual art.

With that said, the ostensibly retroactive application of Capitol rules to disqualify a painting that had previously passed those very same guidelines seems unlikely to pass First Amendment muster.

The painting, Untitled #1, shows a confrontation in downtown St. Louis between protestors, who are largely African American, and police, who are depicted as pigs. Among the more over connotations was the context of the clashes in Ferguson, Missouri following the death of Michael Brown in 2014.

It was chosen last year as the winner of an initiative by then-Speaker of the House, Thomas P. (“Tip”) O’Neill, Jr. in 1982. The initiative encourages individual Representatives to hold competitions in their own districts, and then display the winners in the tunnels connecting the Capitol to the House office buildings. The artist, student David Pulphus, was the winner in the district of William Lacy Clay (D-MO).

Starting in early January, 2017, however, the painting was repeatedly removed and returned to the office of Rep. Clay who, in turn, re-hung the painting each time. Among the individuals who removed the painting were Duncan Hunter (R-CA), and Dave Reichert (R-WA), the latter of which referred to the work as “insulting to police officers.”

Seeking resolution, Rep. Reichert wrote to the Architect of the Capitol to request the permanent removal of the work as in violation of House rules concerning “subjects of contemporary political controversy or a sensationalistic or gruesome nature.”

Pulphus and Rep. Clay filed suit last week, alleging infringement of their respective First Amendment rights. As alleged in the Complaint, the Architect had already reviewed the painting for compliance with House guidelines (focusing mostly on size and format) earlier in 2016 and accepted it for display.

Nonetheless, according to the Complaint, on “January 13, 2017, Representative Reichert’s office reported that the AOC had re-reviewed “Untitled #1” and rescinded its initial determination that the Painting was in full compliance with the Competition guidelines” and the painting was removed the next day.

This is the first place artwork by a St. Louis high school student ripped down from the U.S. Capitol complex walls Friday by Rep. Duncan Hunter because he objected to its content.

What comes now? If the Capitol itself, or the House of Representatives, had supervised the competition, the First Amendment violation would be beyond dispute. We have had occasion to cover the clash between controversial art and government displays several times before, including involving students.

Had the artist been invited or permitted in the first instance by the House to display his painting, then taking it down because of its content would be conclusive viewpoint discrimination, which the First Amendment prohibits.

To review, there are (1) “traditional public forums” like public parks, sidewalks and areas that have been traditionally open to political speech and debate; (2) “designated public forums,” in which the government opens public property for expression that is not ordinarily a forum for public expression; and (3) “limited public forums” for certain kinds of expression or speech.

No one has the right simply to walk into the Capitol and simply hang one’s painting, so there seems little chance this could be considered a traditional public forum. The Complaint does not take a position yet on which type of forum the Plaintiffs consider the Capitol to be.

If it is a designated public forum, then the Architect would be permitted to close the forum in its entirety, but so long as it is open to anyone, it must be open to all regardless of the specific expression.

If it is a limited public forum, the government may discriminate against certain classes of speakers, but not based on viewpoints.

So which is it?

Constitutional blogger Eugene Vololkh frames the question as not whether, but who? Should Congressional leadership decide what is hung on the walls, or should local Congressmen? He concludes that the former is reasonable, but here I’m not so sure. That would be a defensible approach prospectively, perhaps. Moreover, Clay is a Congressman, not someone off the street.

His choice to hang Pulphus’s painting seems deserving of strong protection, and the retroactive disqualification seems hard to justify using the House regulations (which the painting originally passed). Taking a step back, there is little question that the painting was removed because of the viewpoint it advanced. Sometimes things are not that complicated.

One critical thing to remember here is that the government is always free to speak or not to speak, and that choice does not affect the initial artist if government property is involved.

So whether removing Richard Serra’s Tilted Arc from the Federal Plaza in New York City in 1981 or the covering of a mural at a government office in Maine, the government is not compelled to provide a platform for any particular form of expression. But these works are not government property.

Pulphus and Clay have sought a preliminary injunction to restore the painting to display, so there should be a ruling before long on the Court’s view of their likelihood of success on the merits. A hearing has been scheduled for March 13, 2017.

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Nicholas O’Donnell

Used by permission, this piece was written by Nicholas M. O’Donnell, partner in the Litigation Department of Sullivan & Worcester LLP’s Boston office. O’Donnell’s practice focuses primarily on complex civil litigation. He represents manufacturers, individuals, investment advisers, banks, and others around the world in contract, securities, consumer protection, tort and domestic relations cases, with particular experience in the German-speaking world. He also is the editor of the Art Law Report, a blog that provides timely updates and commentary on legal issues in the museum and visual arts communities, one of his areas of expertise. O’Donnell is a member of the Art Law Committee of the New York City Bar Association.