WASHINGTON (AP) — A federal judge has rejected efforts to reinstall in the U.S. Capitol a painting that some lawmakers and police groups found offensive.
David Pulphus, a student artist from Missouri, and Rep. William Clay, his Democratic congressman, had sued Architect of the Capitol Stephen Ayers for removing the painting in January. They sought a preliminary injunction to have the painting restored as the lawsuit proceeds, but the judge denied their motion.
The painting showed what appears to be a pig in a police uniform and divided members of Congress for its depiction of events in Ferguson, Missouri. In August 2014, a white police officer shot and killed an unarmed black teenager, Michael Brown.
U.S. District Judge John D. Bates said in his ruling that the government used its editorial discretion in the selection and presentation of the art. As a result, it was engaging in “government speech” and the plaintiffs have no First Amendment right to display the painting at the Capitol. The First Amendment limits government regulation of private speech, but it does not restrict the government when it speaks for itself.
Bates said he was “sympathetic” to Pulphus and Clay given how the artwork was treated, but he concluded that they were unlikely to succeed on the merits of their arguments. He also noted that all of the paintings in this year’s arts competition are to be taken down May 1, little less than two weeks away.
The plaintiffs in the case had sought a preliminary injunction to have the painting restored to a tunnel that leads to the Capitol from a House office building. That’s where hundreds of winning paintings in an annual Congressional Art Competition are hung.
Ayers had determined, after Republican lawmakers criticized the portrayal of police, that the artwork didn’t comply with the House Office Building Commission’s prohibitions for the Congressional Arts Competition. The rules of the competition prohibit artworks “depicting subjects of contemporary political controversy” or those of a “sensationalistic or gruesome nature.”
Leah J. Tulin, a lawyer representing Pulphus and Clay, said they are likely to appeal the judge’s ruling. She said that under the court’s ruling, there was a danger that the government speech doctrine “can swallow the First Amendment protections” provided to Americans in a limited public forum.
“I’m confident we will ultimately prevail on the merits,” Tulin said.