We previously discussed the controversy over a painting by a constituent of Democratic Rep. William Lacy Clay that depicted police as pigs in Ferguson, Missouri. As we discussed, the House had a right to remove the art and eventually did precisely that. However, before that decision from the House, Rep. Duncan Hunter (R., Cal.) took down the painting. Clay called for criminal charges. When the painting was rehung, another Republican member removed it. At the time, Rep. Cedric Richmond (D-La.), chairman of the Congressional Black Caucus, said “We may just have to kick somebody’s ass and stop them. Then the architect stepped in and barred the hanging of the picture. Now Clay has announced that he will file a lawsuit challenging the actions of the House of Representatives. It is hard to see a strong legal basis for such a challenge. The odds heavily favor the House of Representatives in the action.
One can certainly question the authority of the two members in taking unilateral action to remove the painting. However, the architect generally controls what art may be featured in the Capitol and the rules of this competition expressly bar art with “subjects of contemporary political controversy or a sensationalistic” nature. Depicting police as pigs would seem to meet that definition.
Moreover, reports indicate that the actual decision was made by a three-member board, comprised of Speaker Paul Ryan, R-Wis., Majority Leader Kevin McCarthy, R-Calif., and Minority Leader Nancy Pelosi, D-Calif., to remove the painting. Thus both the Capitol Architect and the House Office Building Commission agreed on the decision. Pelosi said that she was overruled by the two Republicans in appealing the decision of the architect and demanded that the painting be re-hung. She insisted that this is the first time that art had ever been removed since the competition began in 1982. She called the action “highly suspect.”
That would not likely be enough. A federal court would have to rule that the architect (and the House commission) does not have the discretion over removing art. Generally courts leave such internal rules to Congress and this is an area where art is hung at the invitation and discretion of the House. Courts tend to avoid drawing such lines in the control of public spaces, though there are contrary cases where religious displays are barred under the Establishment Clause. Those are cases where the government is accused of taking sides or advancing a religious viewpoint. Here the rules are designed to avoid such controversies. Of course, Clay could argue that the rules are ambiguous and, in this case, amounted to viewpoint-based censorship. Yet, it is also difficult to see where a court would draw a line. Would this mean that art glorifying genocide or racism or criminal conduct could not be removed? How about part that is openly partisan against a president or a particular party? This is a painting with a strong political and controversial element. It is not clear if Clay can point to other paintings with controversial themes of this kind where the House took no action to remove the art.
In a prior letter with Clay, Congressman Jamie Raskin (D) Maryland (a former law professor from American University) cited Texas v. Johnson (1989) for the proposition stated by Justice William Brennan that “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” However, that was a flag burning case and not a case involving the control of government over a space like the United States Capitol. The letter also quotes (but does not cite) Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819 (1985) for the position that “[o]nce it has opened a limited [public] forum, the State must respect the lawful boundaries it has itself set” and may “not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, … nor may it discriminate against speech on the basis of … viewpoint.”
However, that was a university case where the school engaged in discrimination of student views and organizations. The courts generally look at the type of forum in determining the level of scrutiny to apply. Those forums include traditional public forums, limited public forums, and nonpublic forums. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983). Traditional public forums like parks and streets have the greatest protections. Limited public forums are those public areas that the government “has opened for use by the public as a place for expressive activity” and are “created for a limited purpose such as use by certain groups . . . or for the discussion of certain subjects. . . .”Id. at 45 n. 7. Finally, nonpublic forums have the least protection.
At best, the walls of the Capitol would appear a limited public forum. In such a forum, there is a requirement for a narrow drawing of rules to protect a compelling state interest but in Rosenberger the Court also stated that “[t]he necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics.” The government must in such cases respect the boundaries that it has set out for the forum and draw reasonable conclusions. Thus the Court held that “a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Id. at 829-30.
The House could also argue that this is a nonpublic forum since demonstrations and protests are generally not allowed in the Capitol building itself as opposed to the grounds surrounding the building. In Perry, the Court held that simply because the government owns property does not mean that it is a public forum. Thus, it may reserve a forum “for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view” and “`[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is dedicated.'” Id.
The standard here of barring sensational and controversial speech is clearly ambiguous, but the Congress can argue that this is a context that defies more specific elaboration of prohibited content.
What do you think?
Two generations of Clays are enough. William and now Lacy.
This is an example of throwing gasoline on a candle flame.
This should have been able to be worked out between adults talking about the problem. No harm was done. The painting was not defaced and was returned to the owner. This seems like another tiresome “stand” to garner votes. “I work for YOU. Vote for ME. Those dang cops are all pigs. Hey, where’s my security detail at?”
I suppose police could just boycott giving Wm Lacy Clay any protection or bodyguard services. Would the prohibition against first responders striking extend to refusing to help Mr Clay? Or maybe they could show up in hog costumes.
It’s offensive to hang art that depicts cops as pigs, especially in the context of the BLM chant, “cops are pigs, fry ’em like bacon.” I take it as threatening against the cops. A more proper context to use this piece to discuss the deep mistrust and acrimony between neighborhoods with high crime rates and cops would be a different venue – a panel discussion, art show, or some other venue. But the capitol is supposed to represent us all. To have art hung there showing an entire segment of our society, those who serve, as hogs sends the message that government is NOT for everyone.
How does this art encourage community policing, or the unification between community and police? It doesn’t. It’s like shouting in an argument. No one listens to you when you scream obscenities. They just go on the defensive or tune you out. It’s calm rational discussion that solves problems. This artwork is the equivalent of screaming. It’s neither subtle nor does it reveal any new perspectives, but it was done by a child. The child artist should be encouraged to continue to create, but that does not mean that his art is appropriate in this venue. It’s still hurtful, and makes me wonder how he was raised, and what his early life was like. Does he identify more with criminals than with cops?
It’s calm rational discussion that solves problems. T
Discussion solves no problems. Only implementation solves problems.
How does this art encourage community policing, or the unification between community and police? It doesn’t.
That’s not the object of the artist, or Lacy Clay, or the shmuck who runs the Congressional black caucus.
It’s a reasonable wager he had perfectly ordinary black kid upbringing, e.g. has lived with his mother all his life and a succession of men of varying degrees of durability (perhaps a stepfather right now). His grandmother and his aunt Yolanda sometimes look after him. His mother has one other child and his sire has one other child, but he is the only issue of the two of them jointly. His mother is 43 years old, his sire and his stepfather (or this year’s common law) are both about 45.
The child artist should be encouraged to continue to create, but that does not mean that his art is appropriate in this venue. It’s still hurtful,
Karen, kid isn’t your mother or anyone else’s. His business is to make a point. He doesn’t care if you ‘feel’ ‘hurt’ by it and dollars-to-doughnuts no police officer will feel ‘hurt’ by this. Irked, bored, impatient, disgusted, or enraged, perhaps. Not hurt. Life ain’t an elementary school classroom and you ain’t taking to a child of 5 when you address him or anyone but your grandchildren.
The child artist should be encouraged to continue to create, but that does not mean that his art is appropriate in this venue. It’s still hurtful,
Karen, kid isn’t your mother or anyone else’s. His business is to make a point. He doesn’t care if you ‘feel’ ‘hurt’ by it and dollars-to-doughnuts no police officer will feel ‘hurt’ by this. Irked, bored, impatient, disgusted, or enraged, perhaps. Not hurt. Life ain’t an elementary school classroom and you ain’t taking to a child of 5 when you address him or anyone but your grandchildren.
and makes me wonder how he was raised, and what his early life was like. Does he identify more with criminals than with cops?
He’s an adolescent male. It’s not surprising he doesn’t identify with cops. Adolescents need strong government. They don’t necessarily appreciate strong government.
It’s a reasonable guess his mothers a certified aide at one of the local nursing homes. She’s about 43. Her current man drives a bus for the transit authority. The sire of this particular son is a building super for Home Properties. She’s about 43. The men are about 45. She could benefit from losing some weight.
His mother has a bad temper and a big heart. The man currently in residence is forgiving about the former – up until the moment he isn’t. They rent a garden apartment of a shady once-commercial venue. Everyone in the house is adequately fed, they both have medical insurance from their employers, they’ve got a used Chevy and a used Ford in the driveway, and the house has some consumer electronics. They’ve got $38 in their bank account. The man of the house is not adverse to spending an evening at a local shebeen and he’s been known to have problems of concupiscence, which gets back to his woman and triggers her bad temper.
DSS – you remind me of one of my favorite activities – people watching and making up stories about them. I don’t believe I’ve heard concupiscence in a sentence outside of CCD. I love words like that. 🙂
You wanted to know what his home life was like. That’s your single best guess. It had to be broken up in pieces because of Turley’s dysfunctional spam filter. Kid’s probably perfectly normal (as that’s understood in black populations). If he’s an ordinary black (male) youth of 17, he’s seen the inside of a courtroom as well (for disorderly conduct or drug possession or shoplifting or whatever).