Remember that painting depicting the police in Ferguson as pigs which was hanging on Capitol Hill for a while? Back in February it had finally been removed, but a Democratic congressman was going to court to have it put back up. Well, the case has been heard and a judge has tossed the request based on a rather unusual twist of free speech principles. (Daily Caller)
A federal judge denied a legal effort by Democratic Missouri Rep. Lacy Clay to rehang a painting on a Capitol building wall showing the Ferguson neighborhood of St. Louis with police officers depicted as pigs.
Judge John Bates of the District Court for the District of Columbia, ruled Friday that “Untitled #1” was government speech and therefore was legally removed by members of Congress who objected to its content.
The painting was created by former Cardinal Ritter College Prep student David Pulphus as a piece that was entered into the annual art contest Congress holds for high school students in each member’s district.
“There is little doubt that the removal of the painting was based on its viewpoint,” Bates wrote in his ruling.
So basically the judge here is saying that there is no inherent right to have the painting hung where it was (on the Capitol grounds) because it represented Government Speech as opposed to the normal free speech rights of citizens and therefore didn’t have the same protections. In case you’re not quite as familiar with the term there’s a pretty good explanation of it here.
Although the First Amendment’s Free Speech Clause limits government regulation of private speech, it does not restrict the government when the government speaks for itself. For example, if the government allows private groups to hold rallies in a public park, it may not exclude a white supremacist rally solely because it disagrees with the rally’s message… The city is not, however, required to include the white supremacists’ message when it holds diversity programs at its schools. This doctrine does not allow the government to ignore other parts of the Constitution. For example, even though government speech is not regulated by the Free Speech Clause, it is still subject to the Establishment Clause.
I found this a bit on the confusing side (I’m not a lawyer and I’m not allowed to play one on TV), but it seems to come down to the act of displaying the painting rather than creating it. The court is essentially saying that the student is perfectly within his rights to create the painting and to mostly do with it as he likes. But in the circumstances of this contest, when the federal government hangs up the painting on their own property, that act of displaying it constitutes government speech. As such, it doesn’t fall under the same protections as would apply if a private gallery had displayed it and someone had subsequently called for it to be taken down.
I’m not sure if this is the end of the story or not, but I hope so. This seems like one of the most vacuous things imaginable for us to be fighting over when you consider everything else that’s going on. And let’s face it… the painting was offensive and inflammatory. It also wasn’t particularly good to begin with. I’ve no doubt that it will wind up someplace else on private property thanks to a wealthy liberal benefactor and perhaps then everyone can simply get on with their business.