Art Work Censored at U.S. Capitol Building - Free Speech Lawsuit Ensues
GPAC Joins 16 other nonprofits, filing amicus brief supporting St. Louis artist David Pulphus and U.S. Rep. Lacy Clay
January 11, 2018….. Greater Pittsburgh Arts Council has joined the National Coalition against Censorship and 15 other nonprofits from across the country to file an amicus brief in the U.S. Court of Appeals in support of Rep. William Lacy Clay (D, District 1, Missouri) and his constituent, artist David Pulphus. The brief was filed in the U.S. Court of Appeals for the District of Columbia, urging reversal of a ruling that permitted removal of Pulphus’s painting from an exhibit at the U.S. Capitol Building. Pulphus’s artwork Untitled #1 was one of more than 400 works selected for display in the Capitol’s Cannon Tunnel as part of the 2016 Congressional Art Competition. Members of the House created the annual competition in 1982 for the “purpose of encouraging nationwide artistic creativity by high school students.” Untitled #1 was chosen by a jury of independent art professionals appointed by Rep. Lacy Clay and hung in the show among hundreds of other winning artworks for more than six months without incident. Untitled #1 is an allegorical depiction of clashes between protesters and police in a civil rights demonstration in Ferguson, MO. After several Congressmen called the portrayal of police officers disrespectful, the appellee in the case, Architect of the Capitol Stephen Ayers, retroactively determined that the painting did not comply with the competition’s suitability guidelines. Mr. Ayers removed the work from the exhibit, while other art works addressing race relations and the treatment of African-Americans by law enforcement remained on view.
Mr. Ayers contended that the exhibition was “government speech” which the government could censor at will. But the amicus brief argues that art exhibitions such as this one are classic limited purpose public forums at which viewpoint censorship is forbidden. The brief argues that the lower court’s decision permitting the censorship constitutes a radical expansion of the government speech doctrine that contravenes Supreme Court precedent and lacks any limiting principle. Briefings: full text of the amicus brief; the appellants’ brief; and the lower court’s decision.
Mitch Swain, CEO of Greater Pittsburgh Arts Council, states: “GPAC supports the rights of artists, including the freedom of artistic expression. We are proud to work with our arts partners from across the nation and the national network of pro bono legal volunteers for the arts in this effort, and are thankful for the more than 190 attorneys who volunteer their time in Allegheny County with pro bono support for the arts. Our partnerships with these legal professionals provide the expertise that allows Pittsburgh to be a great place for artists to live and work.” GPAC’s VLA program handled about 100 requests for legal help in 2016 alone, and since the VLA program began in the mid 1990s, GPAC has provided more than $1 million in free legal services to artists and arts nonprofits in Southwestern PA.
Affiliated organizations that signed on to the brief include: Arts & Business Council of Greater Boston, California Lawyers for the Arts, Greater Pittsburgh Arts Council, Lawyers for the Creative Arts (Chicago), Maryland Volunteer Lawyers for the Arts, Oregon Volunteer Lawyers for the Arts, Springboard for the Arts (St. Paul); St. Louis Volunteer Lawyers and Accountants for the Arts, Volunteer Lawyers for the Arts (New York) and Washington Area Lawyers for the Arts. Other organizations signing the brief are: Americans for the Arts, College Art Association of America, Comic Book Legal Defense Fund, Free Speech Coalition, Index on Censorship, National Coalition Against Censorship and Pen American Center.
About the amicus brief and the lower court findings:
In the amicus brief in the case known as Pulphus v. Ayers, the amici noted their common interest in protecting freedom of artistic expression and expressed “special concerns about the possibility of future viewpoint censorship of core political speech in customary art exhibition venues such as public libraries, universities and government buildings (from village halls to the Capitol).” Washington, D.C.-based Covington & Burling drafted the amicus brief. Oral argument has not yet been scheduled.
The lower court found “little doubt” of viewpoint discrimination by the Architect but nonetheless ruled that exhibit was government speech, and could be censored on viewpoint grounds. The amicus brief argues that the District Court erred in the government speech designation because “the government is not “speaking” when it creates and hosts an art competition to showcase the speech of its citizens.” It also explains, using historical example and illustrations, the expressive rights that apply even to art that involves some government sponsorship or support.
Amicus briefs typically supplement, rather than duplicate, the supported party’s legal arguments by providing context, additional information and policy arguments. In this brief, the amici make the distinction between art competitions and commissions and between art competitions and permanent public monuments. The brief also references accepted curatorial practices, as outlined in the Code of Ethics for Curators and the Museum Best Practices for Managing Controversy. It includes cartoons to illustrate the long and distinguished tradition of using animal caricatures to criticize the government. The brief also argues that the suitability guidelines, which do not allow “exhibits depicting subjects of contemporary political controversy or a sensationalistic or gruesome nature,” are unconstitutionally vague, require subjective judgments, were applied inconsistently and as a pretext to chill core political speech.
As the brief’s conclusion notes, “the censorship in the Capitol was a terrible civics lesson,” and, quoting University Georgia law school professor Sonja West, “punishing students for their speech robs our public debate of needed voices, and it teaches our children — who, of course, one day will become adults — that censorship, even broad and sometimes arbitrary censorship is acceptable.”
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