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. A lawsuit challenged the actions of the House of Representatives and I expressed my great skepticism over the merits of such a case. It appears that U.S. District Judge John D. Bates agrees with that assessment. In a ruling yesterday, Bates rejected the claim that the Architect’s actions were unlawful in removing the painting by David Pulphus, a student artist from Missouri. Pulphus joined Rep. William Clay, in the legal challenge.
Bates found that Architect of the Capitol Stephen Ayers exercised permitted editorial discretion in the selection and presentation of the piece. The court noted that the rules of the competition prohibit artworks “depicting subjects of contemporary political controversy” or those of a “sensationalistic or gruesome nature.”
Thus, because the speech activity here is likely government speech, plaintiffs have no First Amendment rights at issue. That being so, the Court must also reject plaintiffs’ vagueness challenge to the suitability guidelines. Briefly, plaintiffs argue in the alternative that, if the government did not engage in viewpoint discrimination, the suitability guidelines are void for vagueness. . . . But the argument that the competition rules are void for vagueness because they may chill plaintiffs’ protected speech depends on plaintiffs having speech rights to chill, which the Court has already determined is not the case. When the government speaks, it is free to promulgate vague guidelines and apply them arbitrarily. See Gittens, 414 F.3d at 30 (“[A]s a patron of the arts, the government is free to communicate some viewpoints while disfavoring others, even if it is engaging . . . in utter arbitrariness in choosing which side to defend and which side to renounce.”) (internal quotation marks omitted). This makes sense, as there are no civil or criminal penalties that may be imposed on plaintiffs if they run afoul of the suitability guidelines here, because the government is acting as an arts patron, not as law enforcement. See Finley, 524 U.S. at 588-89 (noting that the content standards for NEA grants are “undeniably opaque” but “when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe”). Therefore, plaintiffs are unlikely to succeed on the merits of either of their First Amendment claims.
Here is the opinion.