WASHINGTON (CN) - The D.C. Circuit grappled Friday with whether a student artist suffered discrimination when his contest-winning art was removed from the U.S. Capitol complex.
Representative of civil unrest that gripped Ferguson, Missouri, in 2014, the the painting by former St. Louis teen David Pulphus depicts a horned police officer pointing a gun at a black man portrayed as a wolf holding a sign that says "Stop Kill.”
It was hung in the heavily trafficked Cannon Tunnel of the U.S. Capitol Building as part of a high school contest that dates back to 1981. The painting by Pulphus was more than 400 paintings selected as part of a nationwide student-art competition in 2016 by a jury of constituents from the district of Democratic Rep. William Lacy Clay.
Stephen Ayers, the architect of the Capitol, removed former the untitled painting after police associations and Republican lawmakers protested the work as anti-police.
Pulphus and Clay are appealing to the D.C. Circuit after a federal judge denied them injunctive relief, despite expressing "little doubt" that removal of the painting was based on viewpoint.
Pushing for a reversal this morning, Pacifica Law Group attorney Kymberly Evanson argued that the exhibition is a limited nonpublic forum protected from viewpoint discrimination by the First Amendment.
"Would a reasonable person believe that the government is speaking, sending a message through this medium," Evanson asked. "Has the government exercised editorial control. Or as in our case, is the government acting to restrict minority viewpoints?"
Chief U.S. Circuit Judge Merrick Garland posed a hypothetical: Suppose that Rep. Clay wants to decorate his own office and decided to dedicate one wall to display his 10 favorite pieces of artwork from his constituents.
"Does that make that, what I've just described, into a nonpublic forum?" Garland asked.
Garland wondered whether, by exercising control over what paintings it displayed, if the government was doing exactly same thing in the private spaces of its own buildings.
Evanson suggested the answer is no.
"It can't be that selection of content by a government official on government property means it's government speech," Evanson retorted. "That would collapse every First Amendment case that we have."
Evanson said an art contest designed to "encourage and facilitate a diversity of views" can't be government speech, even if it receives government funding.
The architect of the Capitol, she noted, had never exercised any kind of curatorial authority prior to removing Pulphus' painting.
But Justice Department attorney Joshua Salzman urged the three-judge panel to dismiss the case as moot.
Noting that the exhibition ended several months after the painting was removed, Salzman said the injunctive relief originally sought is no longer available to Pulphus and that the continuing injuries he alleges - ongoing reputation harm - are not appealable.
Pulphus claims he has suffered such harm by his ongoing exclusion from a virtual exhibition after his painting was pulled from the physical exhibition.
Although the suitability guidelines exclude politically controversial subjects, Salzman asserted that "there's nothing inherently stigmatizing in having one's work described as portraying a contemporary political controversy."
Salzman also argued that the painting was never technically disqualified since the rules of the art competition include guidelines that allow the architect of the Capitol to remove works deemed unsuitable.
"All the architect's decision really said is the painting should come off the wall,” Salzman said. “There was no instruction to the congressional institute to take this down," or remove it from the public record.
The student is still free to note on his resume, for example, that he was among the winners of the competition.
If the panel does want to reach the merits, Salzman urged the court to affirm, noting that the Cannon Tunnel isn't open to displays of private art.
"In concluding that this exercise of editorial judgment by two layers of government actors constituted government speech, the district court faithfully applied the Supreme Court's government speech precedents," Salzman said in the government's appeal brief.
The three-judge panel said at the conclusion of the roughly 45-minute hearing that they had taken the matter under advisement, but did not say when they would issue a ruling.
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