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.
@desperatelyseekingsasquatch, April 19, 2017 at 4:31 pm
“No one gets paid to listen to you free-associate.”
What do you get paid to do, Desperate Seeker?
If it’s to express the river of authoritarian pus to which you’ve treated us here at Professor Turley’s blog, and you’re being paid by the quart, you should have more than enough to retire by now.
I hope you’ll stay on, regardless, and continue to expose the pock-marked derriere of the oppressive political system you attempt to defend with your evidently very limited intellectual resources.
@ mespo727272, April 19, 2017 at 10:00 am
“And we all love a good kakistocracy? Well, we must.”
Indeed we must, considering how long we’ve had one.
As architect, inventor, and philosopher Buckminster Fuller observed many years ago, “In politics, unlike in the rest of Nature, the densest rises to the top.”
While we’re on the subject, he also made these pertinent observations:
“To ask a politician to lead us is to ask the tail of a dog to lead the dog.”
“Either man is obsolete or war is. War is the ultimate tool of politics. Political leaders look out only for their own side. Politicians are always realistically maneuvering for the next election. They are obsolete as fundamental problem-solvers.” [Emphasis added]
“However, if we leave the industrial machinery and their energy-distribution networks and leave them also all the people who have routine jobs operating the industrial machinery and distributing its products, and we take away from all the industrial countries all their ideologies and all the politicians and political machine workers, people would keep right on eating. Possibly getting on a little better than before.”
https://video.search.yahoo.com/search/video?fr=hp-avast-s&p=buckminster+fuller#id=3&vid=cd7b3b3588f6e6ed574d71c778ff3c4e&action=click
Anti-imperialist Mark Twain, on the other hand (at one time, at least), retained a residue of faith in the US political system:
“Politicians and diapers must be changed often, and for the same reason.”
No one gets paid to listen to you free-associate.
The bigger issue is police/community relations (esp. African American) through this administration. I watched Candidate DJ Trump in the black Michigan churches that the main establishment papers and TV said where unwinnable. I watched Hillary trounce B. Sanders with the black vote. She took the primary vote probably 19 votes to Sander’s one. I also saw Ben Carson in Iowa state fair campaigning. Jobs,jobs,jobs…..that is what prosperity is about. DJT wisely got Carson to take housing and urban development head.
What I also saw was comedian Jeff Ross ride around in a police car in Boston which had not one officer involved shooting that whole year on a TV show were he talked to public, police and police union. They pointed out there are over 40,000 different local police departments in the U.S.
Chicago’s Rahm Emmanuel vacations in Cuba. The inner cities have Democrat party leadership. The valence has to be law and order with community relations, plain and simple.
Ahh, the power of inanimate objects.
I think the removal of the painting was censorship and an improper violation of the first amendment. The government publicly announced the rules for the competition. Its rules of “suitability” are laughably vague, but even if more detailed, the competition itself was a “special” event was clearly not to be understood as “government speech”. There was nothing about the announced rules that told the artist of the “suitability” limits for the content. Similarly, there was no reason why the public would think the winners on display had conformed to a “suitability” limit. Plaintiff had clearly won the award for his district, and the only basis for removal was government disapproval of its content. After the fact. But when the government goes so far as to tell the public it is suspending its own control of “government speech”, in a particular situation, it can’t pretend that it is NOT raw censorship to say “oops” I didn’t mean that.
But this is a no-win situation for everyone. The House retains control of how the public sees the art, and can easily arrange that nobody sees it even if the judge had “ordered” it re-hung.
I think the removal of the painting was censorship and an improper violation of the first amendment.
I missed the part of the 1st Amendment where it says you have the right to have your artistic spew displayed in the U.S. Capitol.
If one can impose such “safe zones” in a government venue, why not in one of higher education? And what is the criteria, subjects of contemporary political controversy other than a safe zone from political speech?
And how in the world can a government of the people, by the people and for the people have a rule that the first amendment doesn’t apply to government speech? If anything government speech should MOST be governed by the first amendment.
This sounds like the usual legal mumbo jumbo that adds up to, “rule of law for thee, but not for me”; a breath taking hypocrisy much like the ubiquitous “the first order of business, after voting down the proposed minimum wage hike for the public, is to give our most honorable selves a well deserved and very hefty raise”, which comes up on most every new session of a political body.
If one can impose such “safe zones” in a government venue, why not in one of higher education? And what is the criteria, subjects of contemporary political controversy other than a safe zone from political speech?
Look, squirrel!
Firstly, the cops are treated no differently than the other participants in the ‘scene’. Two cops are depicted as ‘warthogs’ a somewhat feral and out of control rendition of a common perception. Another cop is depicted as a human. The angry youth is also portrayed as feral and out of control. The scene depicts the ‘out of control’ savage condition of the world as seen through the eyes of the artist, perhaps the eyes in the back of the painting. The painting represents a condition out of control, more than a put down on cops.
Secondly, the system in place, ‘the architect’, allowed the painting to be hung. Case closed. Any dissent should be channeled throughout the filtering system in place. The person who took it upon themselves to remove the painting should be charged with, whatever the appropriate charge might be.
I disagree that the races were treated as equally savage.
The crucified black man clearly refers to Jesus, the only sinless person/God in existence. The scales of justice he holds weights the white side. One black man is a Black Panther in a position of defending the crucified black man. And he’s facing off against a cop portrayed as a boar, which can only refer to the epithet that cops are “pigs.” The marchers are not threatening but merely holding a unifying sign of “history” referring to black oppression, and they also have a peace sign in front of the culturally iconic beauty shop.
So no, they are most definitely not depicted as equally out of control.
It is repugnant for an entire public service sector to be so discriminated against in government speech.
I wonder what the reaction would be if a painting celebrating the 20,000 members of the KKK who marched in support of the 1920s Democratic Convention might be since the Black Caucus is open to racist art?
Good Idea! We could have contending factions put up competing murals and eventually recreate the July Days of the Russian Revolution:
https://www.britannica.com/event/July-Days
July Days, (July 16–20 [July 3–7, old style], 1917), a period in the Russian Revolution during which workers and soldiers of Petrograd staged armed demonstrations against the Provisional Government that resulted in a temporary decline of Bolshevik influence and in the formation of a new Provisional Government, headed by Aleksandr Kerensky. In June dissatisfied Petrograd workers and soldiers, using Bolshevik slogans, staged a demonstration and adopted resolutions against the government. On July 3 protestors, motivated in part by the resignation of the government’s Kadet (Constitutional Democratic) ministers, marched through Petrograd to the Tauride Palace to demand that the Soviet of Workers’ and Soldiers’ Deputies assume formal power. The Bolsheviks, initially reluctant, attempted to prevent the demonstration but subsequently decided to support it.
On July 4 the Bolsheviks planned a peaceful demonstration; but confused armed clashes broke out, injuring about 400 persons. Neither the Provisional Government nor the Soviet could control the situation. But the Soviet refused to take power, and the Bolshevik Party refrained from actually staging an insurrection.
Right now the artist is putting the frame on another painting. It will hang in Lacy’s office and thus be protected. It will be all over the internet. The gay judge will be up on the bench in his courtroom and the pigs will be celebrating all around the room. Some pigs are in cop outfits and at least one looks like an architect. Lacy is at the front door asking where the white women are at. The movie Blazing Saddles is being played on a screen on the judge’s bench.
I just heard all this on Cloud 9.
I have always stood with the Capitol Architect on this one. I thought the painting, though well done for a high school student, was racist and inflammatory. Additionally, the Congressman who hung it showed poor taste and foresight.
Yes. Who isn’t tired of JT’s blogging about Trump’s betrayals on everything he pledged to do to make America greater than it has been for the past 40 years. It’s time to do as all his predecessors since Reagan – and leave the banksters alone as they pay 1% for the money they charge us 20% to borrow, and frankly, these whiny hineys going on about a livable wage need to just suck it up and go back to
arguing about real issues – such as displays of art which depict truth as experienced in the hood.
billmcwilliams – you are clearly off the rails. 🙂
Did the original ‘hanger’ get permission?
Where it belongs is over in the Smithhsonian in the new Museum To Celebrate Racism.
It appears that U.S. District Judge John D. Bates agrees with that assessment.
Who gives a s***? Had he ruled the other way, the Speaker should have told him the federal courts have no franchise to redecorate the Capitol, and if he wants to take the painting down himself, he’ll have to contend with the Capitol Police.
While we’re at it, Richmond and Clay are a pair of adolescents. You’d think their constituents might wish to do better than a kakistocracy. (Well, at least Alcee Hastings is not their congressman).
And we all love a good kakistocracy? Well, we must.