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?
At what point does Congress finally decide to stop wasting time on matters such as this and actually work for the benefit of the citizenry?
When Wm Lacy Clay lets the matter drop, as he should.
Clay thinks the painting reflects the values and attitude of his constituency about the police and what happened in Ferguson, Missouri. He’s probably right. I doubt he’d be pursuing a legal challenge if he didn’t think he had the support of most of his constituents.
I don’t like it. I think it is degrading and in poor taste. Even if they had the legal right to vote to remove it, they should not have done so. Clay was elected to represent his district and if they support the painting, so be it. It should be re-hung with one stipulation. If there is not one already, a placard identifying the sponsor as Lacy Clay, a Democrat representing Missouri’s First Congressional District, should accompany the painting. The public should know that he alone is responsible for it.
Would this Congressman support the hanging of a Confederate flag in the halls of Congress? What about pornography? In any event, someone has to be vested with the authority to decide which images are so offensive or inflammatory that they would interfere with the normal functioning of the government body. That authority is apparently vested in the Architect and a House Committee. I don’t know of any constitutional provision that confers upon this Congressman the right to have his choice of art hanging in a government building. I think he should be sanctioned by the court for filing a frivolous law suit.
“We may just have to kick somebody’s ass and stop them.”
~ Rep. Cedric Richmond (D-La.)
“In all my experience, I have never been in any accident of any sort worth speaking about. I never saw a wreck and never have been wrecked, nor was I ever in any predicament that threatened to end in disaster of any sort.”
~ RMS Titanic Captain Edward John Smith
I see definite parallels like missing the iceberg dead ahead..
Porky, and pigs in general, are all for upholding the law. WANTED: and you ain’t kiddin, brother! US ARMY
This is just GROSS! Vilify the people that are protecting you and do it in the congress! What next, a painting of women and children being abused? If this isn’t the work of Satan in our world today, I don’t think there can be a better example. This is pure, unadulterated evil and the population needs to open their eyes.
The police in the painting are depicted more like warthogs, a ferocious and noble animal. The other people are depicted as other animals. It seems that the painting is a well balanced expression, a la ‘Animal Farm’. It should receive the same protection and freedoms as speech, etc.
Are you trying to be obtuse or does it just come naturally?
Dems just keep digging that hole your in, maybe we can get rid of 10 more next election.
https://twitter.com/EliotHiggins/status/834025810235387904
His remarks defended pederasty, not paedophilia. I’m sure you can find a vociferously homosexual man who objects to pederasty categorically. Not without some search costs, of course.
https://twitter.com/peterwsinger/status/834026699847249921
If the court rules against the Architect and the commission, they should ignore the court. This is none of the court’s business.
That Clay put the painting there to begin with indicates that he’s unfit for office.
Let’s hear from Porky.
The pigs need to weigh in. And no I am not talking about cops. Pigs have been defamed. To compare a cop to a pig is so denigrating to pigs that they need to have their voices heard. So, on opening day of trial or at the first motion. Some pigs need to herd into the court room and begin oinking and farting. Pigs Lives Matter.
Everyone is so litigious these days. Personally, I do not see why it won the award, but taste in poor art is personal.
If taste was purely personal, awards juries would be selected by lottery. Instead, they’re selected from the ranks of museum donors and the professional arts fraternity. It won the award because it appealed to the prejudices of the panel which made the awards. Their prejudices are asinine.
Are there any prejudices that are not asinine?
Are you speaking of your own prejudices or a normal person’s?
All prejudices are assinine, including the ones you undoubtedly hold. No one is free of prejudices. The task is to be self-reflective enough to identify those you hold and do your best to avoid allowing them to turn you into an a@#hole.
allowing them to turn you into an a@#hole.
You’re not succeeding if that’s you aim.
There’s much we take for granted in everyday life. I prejudge that outlet over there as having an electric current flowing from it, so I’m not sticking a fork in it.
Usually complaints or reproofs about ‘prejudice’ come from people who fancy themselves sophisticated and others rubes, or fancy themselves conscientious and others not. It’s a reasonable wager they have an inflated sense of themselves.
It was you who brought up the subject of prejudice. It was you who first complained of the prejudices of others.
What great powers of divination you must have, assuming as you have that you have figured out all my prejudices on the basis of two comments. You are showing at least one of your own prejudices.
peltonrandy – I am prejudiced against spinach. There is nothing asinine about it. It is visceral.
This clearly is not the type of prejudice of which I was speaking and was meant when desperatelyseekingsusan made her comment about the panel which made the choice having assinine prejudices. But then it doesn’t surprise me that the two of you should purposely equate such a trivial form of prejudice with the kind of prejudice that was the subject of the original comment by desperatelyseekingsusan.
peltonrandy – a visceral response to spinach is not trivial. Your problem here is that you really do not know what you are talking about. When people judge anything a series of criteria kick in that they use to judge it. However, there is a prejudicial over-lay that gives the final score.
Perhaps we should hang the image of the 20,000 KKK which marched as a part of the Democratic convention in the 1920s on the wall next to this disgusting painting and see how they respond?
Fiddling while Rome burns…
Rome’s not burning and you have nothing worthwhile to say on any topic.
Legislative, executive, and judiciary powers are separated. How can someone expect a Court to mess with internal issues of Congress?
They have the audacity to interfere with everything and Congress lacks the audacity to tell the courts to get stuffed.
Good use of tax dollars. Think this is what they were sent to DC to do.
I’m guessing Lacy Clay is fundraising off this … event. And, yes, suing.
What’s depressing is that the culture of those on Clay’s donor list is such that he can actually exploit this for dineiro.
two whole years on their hands to waste and no way to bring home the bacon to the moochers. Mights’ well start working on some campaign money and law suits are as good as any.