A controversial painting depicting police officers and protests in Ferguson, Missouri, will not return to the walls of the U.S. Capitol anytime soon.
On Friday, a federal court ruled against artist David Pulphus and Democratic Missouri Congressman William Lacy Clay, who brought a First Amendment lawsuit to immediately rehang the work after the Architect of the Capitol (AOC), the government office which oversees that building, took it down in January.
Painted by Pulphus while he was a high school student in Missouri, Untitled #1
shows a scene of civil unrest in Ferguson, which erupted in 2014 following the police killing of unarmed African-American teenager Michael Brown. While hailed
by some critics as a thoughtful and powerful depiction, the portrayal of law enforcement as warthogs—with one officer pointing a gun at an unarmed protesters—drew ire from conservatives.
Friday’s judgment is a victory for Republican representatives who, though not party to the lawsuit, repeatedly removed the painting over the course of a week in January without authorization following an outcry over its depiction of police from conservative media and law enforcement unions.
“We are obviously disappointed by the judge’s ruling,” said Leah J. Tulin, one of the attorneys who represented Pulphus and Clay. While she was still reviewing and analyzing the judge’s opinion, Tulin said an appeal was almost certain.
The painting was displayed as part of the “Congressional Art Competition,” a three-decade old program which lets representatives spotlight the work of a student artist from their district. Chosen by an independent panel and sponsored by Congressman Clay, Untitled #1 went up in the Cannon Tunnel, which connects the Capitol Building to the Cannon House Office Building, on June 9th of last year, alongside hundreds of other paintings.
In late December, conservative media outlets blasted its alleged anti-police content. A week after the first critical reports emerged, police unions from San Francisco to New York signed a letter
to House Speaker Paul Ryan, asking for him to “immediately remove the reprehensible and repugnant ‘art.’”
On January 6th, California Republican Duncan Hunter unilaterally removed the piece, returning it to Clay with a note explaining the art competition’s suitability guidelines. Work showing a “contemporary political controversy” or pieces that are “sensationalistic or gruesome” are not permitted, according to the guidelines.
that removal amounted to “censorship,” Clay re-hung the work, only for it to be taken down twice more by Republican representatives. On January 11th, Washington Republican Dave Reichert formally filed a request for removal with the AOC, the government steward that oversees the hallway where the work was displayed. After an informal hearing, the AOC officially removed the work.
Clay and Pulphus sued the AOC, arguing the decision violated Pulphus’s First Amendment rights by discriminating against his viewpoint. They asked the court to issue a preliminary injunction and order the work to be restored to the hallway as part of the arts competition, which ends later in April.
The central question was whether the exhibition amounted to “government speech” or a “limited public forum.”
The plaintiffs argued that the art exhibition constituted a “limited public forum” in which the government can only exert “reasonable” regulation of exhibition’s content. As such, they asserted the AOC must remain neutral towards the opinions shown in the exhibited works, and could not remove Pulphus’s painting for its content.
In contrast, the AOC argued that the exhibition was “government speech,” a relatively murky legal doctrine which holds that the government is not violating individual First Amendment rights when it expresses a certain viewpoint and not others. In other words, when the government is speaking for itself it does not have to be neutral. A government program fostering education, for example, doesn’t have to include the viewpoint of creationists.
In denying Pulphus’s and Clay’s request for an injunction, the court agreed with the AOC, finding that a reasonable viewer would interpret the works on display as sanctioned by the government—a key legal point in determining if the exhibition qualified as “government speech.”
In his opinion, Judge John D. Bates wrote “there is little doubt that the removal of the painting was based on its viewpoint.” But he noted the AOC is “free to discriminate based on viewpoint” given his determination that the exhibition is “government speech.”
To reach this determination, the court highlighted that the work was sponsored by a congressman and displayed in a government building accessible only with congressional escort. Dismissing the plaintiff’s assertion that Pulphus’s work was selected by a private panel, the court noted that the works were accompanied by wall text identifying the district and representative who selected the piece for inclusion.
The plaintiffs also asserted that no reasonable observer would interpret the roughly 400 winning works on view as messengers of the government’s viewpoint. But the court noted the government exerted editorial control over the exhibition, which amounted to “expressive conduct,” even if the resulting show didn’t convey a single unified message. In doing so, the court also rejected the notion that the AOC had created a “de facto” public forum by rarely exerting editorial control in the past.
“The danger of this precedent is that this new doctrine of government speech has the potential to really swallow the concept of public forum or limited public forum,” said Tulin. “Our appeal will show the D.C. circuit what is at stake.”