WASHINGTON — A federal judge has rejected Rep. William Lacy Clay’s legal attempt to rehang a controversial painting on the wall of a tunnel connecting the U.S. Capitol with a House office building.

John D. Bates, a judge in the District Court for the District of Columbia, ruled that “Untitled #1,” a painting by former Cardinal Ritter College Prep student David Pulphus, was government speech, and therefore was legally removed by members of Congress who objected to its content.

The painting depicts police officers as animals and has symbolic references to the 2014 shooting death of Michael Brown in Ferguson by police officer Darren Wilson.

Wilson was cleared of wrongdoing in federal and state investigations, and the case touched off violent confrontations between demonstrators and police. It led the U.S. Justice Department under former President Barack Obama to impose reforms on Ferguson police and courts.

“There is little doubt that the removal of the painting was based on its viewpoint,” Bates wrote in his decision issued Friday.

But, he added: “Although the Court is sympathetic to plaintiffs given the treatment afforded Pulphus’ art, under controlling authority this case involves government speech, and hence plaintiffs have no First Amendment rights at stake.”

Clay, D-St. Louis, had sought an injunction against removal of the painting by the Architect of the Capitol Stephen Ayers. Pulphus’ painting was taken down on several occasions by Republican members of Congress, who said the art demeaned police and gave a false narrative of what happened in Ferguson. Ayers removed it in January after a formal complaint from Republicans.

Pulphus, now in college, has said the art “speaks for itself” as the experiences of a young black man seeing reports of the shooting deaths of black men by police.

The painting hung for seven months among more than 400 other student works in a Capitol Hill tunnel before conservative bloggers noticed and called for its removal because of its depiction of police officers.

Republicans successfully argued that the painting violated the annual art contest’s prohibition of art reflecting “subjects of contemporary political controversy,” or of “sensationalistic or gruesome nature.”

There was no immediate reaction from Clay on Monday. A lawyer who argued the case pro bono for Clay was on vacation in Hawaii and also did not comment.

Bates noted that at least two other paintings hanging among the 400 winners could be interpreted as violating the rules against political or “gruesome” images, but that he was being asked to rule on only Pulphus’.

And Bates said the fact that Clay did not establish that the Capitol tunnel was public space led to a legal finding that the painting constituted government speech, which does not have the protection of individuals’ speech.

Bates noted Clay’s unique position in the case: His lawsuit argued for a constituent’s First Amendment right, but Clay is also a member of the government that, the judge declared, had the right to take down the painting.

Competition rules, the judge wrote, “set up a hierarchy of decision-making authority with respect to content suitability: House members, by whatever method of judging they choose, select one winning piece from among the multiple works submitted to represent the district, but their choice may be overruled by the AOC if it concludes that the work does not meet the suitability guidelines.”

“In this case, Clay’s decision was overruled by the entity at the top of this decision tree, making his objections irrelevant for purposes of the government speech analysis.”


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