Case NamePulphus v. Ayers
Citation: --- F.Supp.3d --- (D.D.C. 2017)
Topics: Content / Viewpoint-NeutralityPublic ArtPublic Forum

High school student artist David Pulphus’s painting, which was chosen by a Missouri district representative for inclusion in the 2016 Congressional Art Competition, depicted warthog-headed officers with guns drawn at a crowd of black protesters. The painting was hung, along with more than 400 other winning paintings, in a tunnel in the U.S. Capitol Building. A government panel, pre-reviewed each painting for compliance with the competition’s content guidelines, which prohibit artworks “depicting subjects of contemporary political controversy” or that are “sensationalistic or gruesome nature.” Due to some confusion, Pulphus’s painting was not checked for content suitability. Months after the exhibition was installed, Congress Republicans complained about the painting’s anti-police message. Eventually, it was reviewed and removed for not meeting the competition’s content guidelines. Pulphus and his Congressional representative brought suit, claiming viewpoint discrimination.

Pulphus painting.jpg

Pulphus argued that the art competition is a limited public forum, so government regulation of its content must be reasonable and viewpoint neutral. The government argued that the art competition is government speech, so it can discriminate based on viewpoint because Pulphus would have no First Amendment rights here.

The court ruled that the art competition was government speech and thus not protected under the First Amendment. To reach this conclusion, the court looked at the following three factors: 1) whether the government historically used the art competition to communicate its messages, 2) whether the public would reasonably interpret the government to be the speaker in the art competition, and 3) whether the government maintains editorial control over the speech. The court ruled that the first factor is inconclusive. For the last two factors, the court ruled in favor of the government: People would reasonably perceive the art competition as government speech because the government oversaw the competition, picked the winners, and displayed the artwork in an area where public access is only made possible through congressional authorization. Viewers would assume that the selection of pieces for display was made through government control and deliberate curatorial choice, which is a form of government expression. This case is currently being appealed.

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