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Pulphus v. Ayers

United States District Court, District of Columbia

April 14, 2017

DAVID PULPHUS et al., Plaintiffs,
STEPHEN T. AYERS, in his official capacity as Architect of the Capitol, Defendant.


          JOHN D. BATES United States District Judge.

         Before the Court is [7] plaintiffs' motion for a preliminary injunction. The plaintiffs in this case are David Pulphus, a student artist from Missouri's First Congressional District, and William Clay, the congressional representative for that district. Pulphus's painting was selected to represent the district in the 2016 Congressional Art Competition, and was hung in the Cannon Tunnel, part of the U.S. Capitol complex, in June 2016 with the other winning artwork. The painting was removed several months later by defendant Stephen Ayers, the Architect of the Capitol (who oversees the competition), for failing to meet the competition's content suitability guidelines. The artwork was removed after several complaints from, and unauthorized removals of the painting by, other members of Congress, who concluded that the painting was “anti-police.” Pulphus and Clay claim that the removal of the painting constitutes viewpoint discrimination and violates their First Amendment rights; they seek a preliminary injunction to get the painting reinstalled in the Capitol. The painting is only eligible for display until May 1, 2017, when the 2016 exhibit ends.

         There is little doubt that the removal of the painting was based on its viewpoint. But for the reasons that follow, plaintiffs' motion for a preliminary injunction will be denied. Although the Court is sympathetic to plaintiffs given the treatment afforded Pulphus's art, under controlling authority this case involves government speech, and hence plaintiffs have no First Amendment rights at stake.

         I. BACKGROUND

         A. The Congressional Art Competition

         The Congressional Art Competition has been an annual event since its inception in 1982; its purpose is to promote and encourage young artists and national creativity. See Congressional Research Service, The Congressional Arts Caucus & the Congressional Art Competition: History & Practice (2016) [hereinafter “CRS Report”] [ECF No. 7-16] at A-4. Every year, participating congressional districts host competitions for high school students and select a winner to represent the district. Id. at A-4, A-6. Members of Congress are free to establish their own methods for judging submissions and selecting a winner, but all submitted art must conform to particular “Suitability Guidelines” promulgated by the House Office Building Commission (HOBC), which is composed of the Speaker and the majority and minority leaders of the House. Id. at A-4 & n.5, A-6; Decl. of William Clay [ECF No. 7-5] ¶ 5; see also 2016 Rules & Regulations (for Students & Teachers) [ECF No. 7-17] at B-2. The winning art must be sponsored by the House member representing the district, who must sign a form indicating that he or she approves of the artwork's content and wishes it to represent the district. Decl. of Stephen T. Ayers [ECF No. 11-1] ¶ 12; Student Information & Release Form [ECF No. 7-19] at D-2; see also Mot. for Prelim. Inj. [ECF No. 7-1] at 5. The winning art from each district is then displayed in the Cannon Tunnel, which is part of the Capitol Grounds and connects the Capitol Building to the Cannon House Office Building. Ayers Decl. ¶ 6.

         The competition is governed by rules promulgated by the HOBC. See generally 2016 Rules & Regulations. The suitability guidelines that regulate the content of the displayed artwork prohibit works “depicting subjects of contemporary political controversy” or those of a “sensationalistic or gruesome nature.” Id. at B-2. All artwork must be reviewed by a panel of experts chaired by the Architect of the Capitol (AOC) before it may be displayed; artists sign a form acknowledging that the AOC panel has final say regarding suitability. Id.; see also Student Information & Release Form, at D-2. In the past, when questions have arisen about a work's suitability, the AOC's office has reached out to the sponsoring member to confirm that the member still wishes to sponsor the work. The practice has been to defer to the member if the member states that he or she continues to support the artwork. Ayers Decl. ¶¶ 15-16; Decl. of Michele Cohen [ECF No. 11-2] ¶ 11; Decl. of Barbara Wolanin [ECF No. 11-3] ¶ 5. The government has identified only one other occasion, prior to this case, when a piece of art was removed after it was put on display as part of the competition; the work appeared to be a copy of a photograph that had appeared that year in Vogue magazine. See Ayers Decl. ¶ 16, Ex. 9. In two other identified instances prior to this year's competition, when suitability questions arose and the AOC reached out to the sponsoring member, the member agreed to submit another piece. Wolanin Decl. ¶¶ 7- 8.

         B. The 2016 Competition & “Untitled #1”

         In April 2016, plaintiff Clay convened a panel of local artists to judge submissions in Missouri's First Congressional District for the 2016 Congressional Art Competition. Clay adopted the panel's unanimous recommendation and selected plaintiff Pulphus's painting, “Untitled #1, ” to represent the district. Clay Decl. ¶¶ 5, 7. The painting depicts a protest in which two police officers, with guns drawn, face a young man as a crowd of protesters looks on in the background. Both the officers and the young man have “animalistic” features: the officers have the heads of pigs or warthogs, and the young man has the head of a wolf and a long tail. See Mot. for Prelim. Inj. at 6; see also Decl. of David Pulphus, Ex. A [ECF No. 7-4] (photograph of Untitled #1). Depicted to the right is a police officer with human features leading a protester away; above them hovers “a young black man, crucified on the scales of justice.” Mot. for Prelim. Inj. at 6. The protesters hold signs stating “Racism Kills, ” “Stop Killing, ” and “History.” A black bird and a white bird fly above the protesters on the left; behind the crowd stands the Gateway Arch. The Arch appears to fade into metal bars on the right, from behind which another young man watches the protest. See Pulphus Decl., Ex. A. On the student release form, Pulphus described the painting as “[d]eep expressions on difficult times in our community.” Student Information & Release Form at D-2. The press release Clay's office issued announcing Pulphus's win stated that Untitled #1 “portrays a colorful landscape of symbolic characters representing social injustice, the tragic events in Ferguson, Missouri and the lingering elements of inequality in modern American society.” Press Release [ECF No. 7-20]. Ferguson is in Clay's district.

         A member of Clay's staff flew the painting from St. Louis to Washington, D.C., and on May 26, 2016, “art intake day, ” the painting was delivered to a reserved room in the Cannon House Office Building, where the winning art from each district was being collected for review prior to being put on display in the Cannon Tunnel. Decl. of Dr. Thomas Ringenberg [ECF No. 7-42] ¶¶ 4-5; Clay Decl. ¶ 10. There appears to be a small dispute about whether AOC staff were present at art intake day, or whether those collecting and reviewing the paintings were solely staff from congressional offices and the Congressional Institute. Compare Ringenberg Decl. ¶ 4 with Cohen Decl. ¶ 4. In any event, a question was raised at this time about Untitled #1's size; the painting was measured, determined to be the appropriate size, and the painting was officially accepted to represent Clay's district. Ringenberg Decl. ¶¶ 5-6; Clay Decl. ¶ 11.

         On June 2, 2016, the panel convened by the AOC to review the 2016 submissions conducted an inventory of all the art collected in the art intake room, and pulled aside any work that appeared to exceed the sizing guidelines-some 25 pieces, including, once again, Untitled #1. See Cohen Decl. ¶ 5, Ex. 1. Untitled #1 was identified as having an oversized frame, and the painting was returned to Clay's office in order for adjustments to be made. Id. ¶¶ 5, 8, Ex. 1. The painting was not reviewed for content suitability at this time, but the other works that had not been set aside for sizing issues were assessed for suitability. Id. ¶¶ 7, 9. There are other paintings displayed from this year's competition (and that were displayed in past competitions) that arguably depict subjects of “contemporary political controversy, ” including racism and racial injustice related to policing. See, e.g., Photographs of 2016 Winning Artwork [ECF No. 7-23] at H-1, H-2, H-5-H-7, H-10; Photographs of Past Years' Winning Artwork [ECF No. 7-24] at I-2, I-5, I-9, I-10, I-15, I-19, I-21, I-25. There are also other paintings on display, and again, that were displayed in past competitions, that are arguably “gruesome, ” depict or suggest violence, or are otherwise visually disturbing. See, e.g., Photographs of 2016 Winning Artwork at H-2, H-13, H-14; Photographs of Past Years' Winning Artwork, at I-7, I-13, I-17. However, from this year's competition, the panel identified only two works that raised suitability concerns, one titled “Recollection, ” which depicts a young man with apparent bullet holes in his back, and the other depicting marijuana use by Bob Marley. Cohen Decl. ¶ 9; see also Photographs of 2016 Winning Artwork at H-13 (photograph of “Recollection”). Consistent with its usual practice, AOC staff contacted the sponsoring members' offices regarding these works, and the members indicated they supported the works' display. Cohen Decl. ¶ 9, Exs. 2-5. Both of these works were displayed. Id. ¶ 10.

         After the panel pulled Pulphus's painting aside for framing issues, AOC staff apparently did not see it again until June 9, 2017, the last day the competition art was scheduled to be hung in the Cannon Tunnel. Id. ¶ 12. Clay's staff delivered the painting, without the problematic frame, directly to the Tunnel, where AOC staff determined that it was now the appropriate size and displayed it with the other works; no suitability determination was made at this time. Id. ¶¶ 12- 13; Ayers Decl. ¶ 23; Def.'s Opp'n at 7. The painting was hung in the space specifically designated for Missouri's First Congressional District and displayed with a label bearing Pulphus's name, the title and medium of the work, as well as Clay's name. Clay Decl. ¶ 13; Compl. [ECF No. 1] ¶ 41. The painting hung without incident from June 9 until the end of December 2016, when the painting began to attract controversy.

         On December 29, an article appeared online criticizing the painting as “depicting police officers as pigs with guns terrorizing a black neighborhood.” See Jason Howerton, Painting of Cops as Pigs Hung Proudly in U.S. Capitol, Independent Journal Review (Dec. 2016) [ECF No. 7-27] at L-1. The article purportedly quotes House Representative Dave Reichert describing the painting as an “offensive and inaccurate caricature[].” Id. at L-5. The article also purportedly quotes a “senior Republican congressional aide” calling the painting “reprehensible, ” “disgusting, ” and stating that “this hate masquerading as art needs to be taken down now.” Id. The next day, a talk show host urged viewers to call their congressmen to “get that picture down.” See Justin Baragona, What?! Congressman Hangs Painting in U.S. Capitol Depicting Cops as Animals, Mediate (Dec. 30, 2016) [ECF No. 26] at K-2; Mot. for Prelim. Inj. at 8. A week later, the presidents of police unions in New York, Los Angeles, San Francisco, San Jose, and Oakland sent a letter to Speaker Ryan asking him to “immediately remove the reprehensible and repugnant ‘art.'” Compl. ¶ 47; see also Mike Debonis, Cops didn't like a student painting hanging in the U.S. Capitol. So a congressman took it down., The Washington Post (Jan. 6, 2017) [ECF No. 7-28] at M-1-M-2.

         Representative Duncan Hunter unilaterally removed the painting on January 6, 2017, and returned it to Clay's office with a handwritten note complaining that the painting did not comply with the suitability guidelines. Clay Decl. ¶¶ 16-17; see also Note from Rep. Reichert to Rep. Clay [ECF No. 7-10] at E-1. The AOC confirmed to Clay that the painting had been removed without AOC authorization, and Clay rehung the painting, apparently with the AOC's blessing and assistance. Clay Decl. ¶¶ 19-20; Ayers Decl. ¶¶ 18-19. The painting was removed without authorization twice more by other members of Congress; Clay rehung it each time. Clay Decl. ¶¶ 20-21; Ayers Decl. ¶¶ 18-19. Eventually, Representative Reichert sent a formal letter to the AOC asking that the painting be reviewed for suitability, arguing that the painting did not meet the content guidelines. Clay Decl. ¶ 22; Letter from Rep. Reichert to Mr. Ayers (Jan. 11, 2017) [ECF No. 7-31].

         In response to Reichert's request, the AOC “informally conferred” with experts in the AOC office and outside industry experts, who agreed that the painting did not conform to the suitability guidelines. Def.'s Opp'n at 8; Ayers Decl. ¶¶ 22-24. The AOC therefore authorized the removal of the painting. Ayers Decl. ¶ 23. The AOC's letter to Clay notifying him of the removal decision does not explain on what basis the painting was found to be unsuitable-i.e., whether the painting was problematic because it depicted a contemporary political controversy, was sensationalistic, or was gruesome. See Letter Authorizing Removal [ECF No. 7-13]; see also 2016 Rules & Regulations at B-2. Ayers did not compare Untitled #1 to any other paintings displayed as part of the competition-including the two about which the AOC panel had actually raised suitability concerns-because he received no complaints about any of the other paintings. Ayers Decl. ¶ 26. Clay appealed the painting's removal to the HOBC, which by statute has general supervisory authority over the AOC, see 2 U.S.C. § 2001, but the HOBC voted to uphold the painting's removal. Ayers Decl. ¶ 28. Clay and Pulphus filed this lawsuit shortly thereafter, claiming that the removal of Untitled #1 constitutes viewpoint discrimination in violation of their First Amendment rights.


         Plaintiffs argue that the government has created a limited public forum in the form of the Congressional Art Competition, in which case the government's regulation of content must be reasonable and viewpoint neutral. Defendants argue both that plaintiffs have no standing, and that the art competition is government speech rather than a limited public forum, in which case the government is free to discriminate based on viewpoint because plaintiffs have no First Amendment rights at issue. The Court will address each argument in turn.

         A. Standing

         A plaintiff “bears the burden of showing that he has standing for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). The “irreducible constitutional minimum of standing” consists of three elements that the plaintiff must demonstrate: (1) an injury in fact, (2) “fairly traceable” to the defendant's conduct, and that is (3) likely to be redressed by the relief sought. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (alterations and internal quotation marks omitted). Where, as here, a plaintiff seeks a preliminary injunction, “the plaintiff's burden to demonstrate standing ‘will normally be no less than that required on a motion ...

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