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Americans for the Arts Joins Federal Amicus Brief in Support of Free Speech Rights of Congressional Art Competition Student Artist

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On January 5, 2018, Americans for the Arts joined 17 national, state, and local arts service organizations as amicus curiae in the Pulphus v. Ayers case in the U.S. Court of Appeals for the District of Columbia, urging reversal of a ruling that permitted Architect of the Capitol Stephen Ayers to remove a painting by St. Louis high school student David Pulphus from a Congressional Art Competition exhibit at the U.S. Capitol. Left unchallenged, this case could create bad legal precedence for many local and state arts or education agencies that install temporary art exhibits in government buildings.

Americans for the Arts believes that arts education and creative expression is a central right of every young person. A vital component of learning in and through the arts is connecting artwork to one’s self, one’s community, and the greater world, as well as presenting the work to real audiences. This type of quality arts learning is what happened in the case of David Pulphus. In alignment with the Statement on Cultural Equity, Americans for the Arts supports a full creative life for all by championing policies and practices of cultural equity that empower a just, inclusive, equitable nation—thus, Americans for the Arts stands for arts education in all of its forms and against censorship in all of its forms.

Americans for the Arts is supporting the free speech rights of St. Louis student artist David Pulphus.

The highly respected Washington, D.C.-based law firm of Covington & Burling drafted the amicus brief with substantial input from St. Louis Volunteer Lawyers and Accountants for the Arts’ (VLAA) Volunteer Attorney Mark Sableman of Thompson Coburn LLP. “Our brief points out the inherent expressive freedom when art works are displayed in exhibitions,” Sableman explained. “Even when a government entity is involved in exhibiting or making available selections of expressive works, viewpoint censorship should be forbidden. The Supreme Court has made this clear with books in public school libraries, and the same principle should apply to art in public exhibitions.” The brief argues that the lower court’s decision permitting the censorship constitutes a radical expansion of the government speech doctrine that contravenes Supreme Court precedent and lacks any limiting principle. Special thanks to the National Coalition Against Censorship for their leadership and to the St. Louis VLAA for the following synopsis of the case.

What’s the Story?

The defendant in the case, the Architect of the U.S. Capitol, who removed the painting under pressure from a small group of Congressmen, contended that the exhibition was “government speech” which the government could censor at will. But the amicus brief argues that art exhibitions are in fact “limited purpose public forums” at which viewpoint censorship is forbidden.

David Pulphus, who lives in Rep. William Lacy Clay’s (D-MO) Congressional district, completed Untitled #1 while he was a student at Cardinal Ritter College Prep High School. He is currently studying studio art in college.

His allegorical post-Ferguson painting depicts a civil rights demonstration. It includes two police officers with boar heads; one is pointing his gun at a protester with the head of wolf. Untitled #1 was one of more than 400 works selected for display in the Capitol’s Cannon House Office Building tunnel as part of the 2016 Congressional Art Competition. Members of the House created the annual competition in 1982 for the “purpose of encouraging nationwide artistic creativity by high school students.”

The removal of the painting “Untitled #1” by David Pulphus is the focus of the Capitol Hill controversy.

Untitled #1 was chosen by a jury of independent art professionals appointed by Rep. Clay and hung in the show for more than six months without incident. After several Congressmen called the portrayal of police officers disrespectful, the Architect of the Capitol retroactively determined that the painting did not comply with the competition’s suitability guidelines. He removed the work from the exhibit, effectively resulting in what is known as a heckler’s veto. Other works addressing race relations and the treatment of African-Americans by law enforcement remained on view.

The lower court found “little doubt” of viewpoint discrimination by the Architect but nonetheless ruled that exhibit was government speech, and could be censored on viewpoint grounds. The amicus brief argues that the District Court erred in the government speech designation because “the government is not ‘speaking’ when it creates and hosts an art competition to showcase the speech of its citizens.” It also explains, using historical example and illustrations, the expressive rights that apply even to art that involves some government sponsorship or support.

What’s the Legal Grounding?

Amicus briefs typically supplement, rather than duplicate, the supported party’s legal arguments by providing context, additional information, and policy arguments. In this brief, the amici make the distinction between art competitions and commissions and between art competitions and permanent public monuments. The brief also references accepted curatorial practices, as outlined in the Code of Ethics for Curators and the Museum Best Practices for Managing Controversy. It includes cartoons to illustrate the long and distinguished tradition of using animal caricatures to criticize the government. The brief also argues that the suitability guidelines, which do not allow “exhibits depicting subjects of contemporary political controversy or a sensationalistic or gruesome nature,” are unconstitutionally vague, require subjective judgments, and were applied inconsistently and as a pretext to chill core political speech.

As the brief’s conclusion notes, “the censorship in the Capitol was a terrible civics lesson,” and, quoting University Georgia law school professor Sonja West, “punishing students for their speech robs our public debate of needed voices, and it teaches our children—who, of course, one day will become adults—that censorship, even broad and sometimes arbitrary censorship, is acceptable.”

“I greatly appreciate the strong and principled support of the St. Louis Lawyers and Accountants for the Arts and the other amici as they join my efforts to defend the First Amendment rights of my talented young constituent, David Pulphus,” said Rep. Clay. “We are confident that the Court of Appeals will eventually vindicate not only David’s legal rights, but will also reaffirm that freedom of speech is protected everywhere, including the U.S. Capitol.”

The date for oral argument has not yet been scheduled.

Amici Curiae in Pulphus v. Ayers

  • Americans for the Arts
  • Arts & Business Council of Greater Boston
  • California Lawyers for the Arts
  • College Art Association of America
  • Comic Book Legal Defense Fund
  • The Free Speech Coalition
  • Greater Pittsburgh Arts Council
  • Index on Censorship
  • Lawyers for the Creative Arts
  • Maryland Lawyers for the Arts
  • National Coalition Against Censorship
  • Oregon Volunteer Lawyers for the Arts
  • Pen American Center
  • Springboard for the Arts
  • St. Louis Volunteer Lawyers and Accountants for the Arts
  • Volunteer Lawyers for the Arts
  • Washington Area Lawyers for the Arts

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