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?