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August 7, 2002


The opinion of the court was delivered by: Richard J. Leon, United States District Judge


The City of Washington, D.C. ("the City") through its Commission on Arts and the Humanities ("DCCAH" or "the Commission"), began organizing a public art exhibit last year, the purpose of which was to showcase the "whimsical and imaginative side of the Nation's Capital", to make "public art acceptable, increase tourism, and to have FUN."*fn1 According to Anthony Gittens, the executive director of the DCCAH, the project, which featured a citywide display of elephant and donkey "theme icons"*fn2 was "designed to be festive and whimsical, reach a broad based general audience and foster an atmosphere of enjoyment and amusement."*fn3

The promotional materials distributed by the Commission to potential artists and sponsors specifically prohibited original designs which contained "direct advertising of any product, service, company name and social disrespect."*fn4

Over a thousand entrants were submitted for the Commission's consideration, and several hundred were selected to be displayed between April and September of this year. Some of those selected, and currently on display, contain messages set forth in varying ways upon them. In some cases the messages appear to be the principal focus of the painting,*fn5 in others the message is subsumed within the overall artistic presentation.*fn6 In all such cases, however, the City contends, in essence, that these paintings are artistic impressions consistent with the theme and objectives of its art project, as described above.

People for the Ethical Treatment of Animals ("PETA") submitted a number of proposals for inclusion in the project; the last of these proposals, which was rejected by the Commission on July 2, 2002, is the subject of the amended complaint pending before this Court. PETA's proposed entrant features an elephant with tears coming from its eyes, a shackle on its front right leg and a multicolored blanket on its back that contains the words embroidered therein: "The CIRCUS Is Coming, See SHACKLES — BULL HOOKS — LONELINESS All Under The `Big Top'."

PETA contends that its proposed entrant was rejected because of the content of the message on the blanket, not for the reasons stated by the Commission: that is, that it is not art, but a "political billboard" inconsistent with the themes and objectives of the art program.*fn7 Indeed, PETA claims that, under the First Amendment, the Commission cannot engage in content based discrimination in a limited public forum, such as this, unless it does so reasonably. It claims that the Commission's rejection of its proposed design was not reasonable because it was inconsistent with the Commission's selection and display of other entrants whose messages are equally, or more, noncompliant with the stated themes and objectives of the project.

PETA seeks a preliminary and permanent injunction compelling the Commission to display its entrant in a prominent location in the City as required by the terms of the $5,000 entry fee it submitted to the Commission.

For the reasons set forth below, the Court has concluded that the Commission's rejection of PETA's entrant was unreasonable because of its inconsistent treatment of other similarly noncompliant entrants. The Court has concluded that this inconsistency was inherently unreasonable and therefore constituted impermissible discrimination in violation of the First Amendment. Accordingly, the Court hereby Orders the Commission to display PETA's entrant as soon as it is ready for viewing*fn8 in a prominent location in the City, consistent with the terms of the $5,000 sponsorship fee it paid to the Commission, for the duration of the Party Animals exhibit.


There were two ways to participate in the Party Animals exhibit: the first was through a "Call to Artists" competition, and the second was through a sponsorship donation. For the "Call to Artists" competition, artists were asked to submit design concepts. All design submissions were subject to the approval of the Commission, which reviewed and selected the designs of the artists who participated in the competition. A selection committee ("the Committee")*fn9 chose the winning designs, and the artists of those designs were provided with a donkey or elephant sculpture to decorate and awarded an honorarium. The Commission estimates that it received approximately 1,200 entries, of which it rejected over 800.*fn10

The sponsorship route involved four different levels of contribution. For $2,000, a contributor was designated a "Governor," and could select a design from among the "Call to Artists" submissions already chosen by the Committee. For an additional $1,000, a contributor was designated a "Senator," and was permitted to select a design from the "Call to Artists" group, plus have its "Party Animal" placed in a prime location. For $5,000, however, the sponsor, who was dubbed a "President" sponsor, was not limited to the "Call to Artists" designs approved by the selection committee. Indeed, a Presidential sponsor could 1) choose his or her own artist; 2) choose a donkey or elephant to decorate; and 3) select a prominent public location to display its "Party Animal." Finally, contributors who donated $20,000 or more were designated "Founders" and had all the benefits of a Presidential sponsor, plus they received recognition of their contribution in all publications, including the auction of the elephant and donkey icons which will take place at the close of the exhibit.

With respect to criteria for the designs submitted either through the Call to Artists competition or the sponsorship route, the materials distributed to artists and sponsors were limited, but specific. In a section of the materials entitled "The Artwork," the Commission explained that it was "looking for artwork that is dynamic and invites discovery." It stated that the "intended audience" of the Party Animals exhibit would be "D.C. residents and visitors of all ages and backgrounds." In addition, the Commission specified that the "artwork must be durable, safe and require minimal maintenance." Most importantly, the Commission stated that it was seeking "original and creative designs," but "does not call for or allow direct advertising of any product, service, a company name or social disrespect." It warned that "there will be restrictions against slogans or inappropriate images." In addition, in the general information section of the promotional materials entitled "Candidates for Party Animals," the Commission stated that it "reserves the right to design approval,"*fn11 but did not specifically explain what criteria would be applied when reviewing sponsors' designs.


PETA is a nonprofit organization with approximately 750,000 members,*fn12 and advocates the philosophy that animals are "not ours to eat, wear, experiment on, or use for entertainment."*fn13 Among the many animal rights campaigns which PETA wages is the effort to educate the public about alleged abuse of animals by circuses.*fn14

PETA apparently viewed the Party Animals exhibit as an excellent opportunity to advance its message in the nation's capital.*fn15 Notwithstanding the stated purposes and objectives of the Party Animals exhibit, on March 18, 2002, PETA submitted a letter stating its intent to be a sponsor, the locations where PETA preferred its elephant to be displayed, and a $5,000 check to the Commission for the Party Animals display. The deadline for submissions, however, had expired on January 25, 2002. Nonetheless, the Commission told PETA that it could still participate at the $5,000 sponsorship level.*fn16

On March 21, 2002, PETA submitted as its design concept a cartoon from The New Yorker magazine depicting a frowning elephant with a gentleman standing on a ladder nailing a sign into its side that read: "The Circus is Coming. See: Torture Starvation Humiliation, All Under the Big Top."*fn17

The Commission rejected PETA's initial design on March 22, 2002, and the parties dispute what the Commission told PETA regarding the rejection of PETA's design submission. PETA claims that the Commission's Executive Director, Anthony Gittens, told a PETA official during a telephone call that the initial design was rejected not because of the content of the message, but because "`it had a message at all."*fn18 Further, according to PETA, Gittens told PETA that "`[t]he Commission is not looking to make any statements,'" and that it was "rejecting all designs with `messages.'"*fn19 While Mr. Gittens has not denied Penzer's allegation, despite repeated opportunities to do so, the Commission provides a different reason for the rejection. According to the Commission, it was "obvious" that the design was "inappropriate" for the Party Animals exhibit, and did not comply with the rules of the competition nor "compliment ...

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