The Volokh Conspiracy
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Excluding offensive paintings from the Capitol: Not whether, but who
I have a somewhat different take than Jonathan's on the Capitol painting controversy. The question in that kerfuffle isn't about artists' right to display offensive works or to be free from viewpoint discrimination, in the Capitol; artists have no such right. Rather, it's about who gets the final say in rejecting works, including based on viewpoint and on perceived offensiveness—local judges in a congressionally organized art competition, or the congressional leadership.
Mike DeBonis at The Post explains the facts:
The painting was hung in June in a tunnel between the Capitol and House office buildings alongside more than 400 other works that had won a national student art contest. The artist, Missouri teen David Pulphus, was inspired by the 2014 civil unrest in Ferguson, Mo., near his home. The art depicted a horned beast similar to a wild boar in a police uniform in the foreground tangling with a protester rendered as a wolf. In the background, protesters hold signs including one that says, "Racism kills."
The contest was judged by "panels of district artists," apparently in each congressional district. Panelists in this particular Missouri district chose this painting as the district's entry.
Those panelists, I think, were almost certainly influenced by the viewpoint that the painting expressed—which is nearly inevitable, since it's hard to see how one can evaluate art that has a political component without evaluating its viewpoint, in at least some measure. And they would likely have rejected works that they saw as expressing viewpoints that they found offensive (e.g., a painting on the theme of "why white supremacy is wonderful," or "just say yes to drugs"). I think they would have been entitled to do so.
Now the congressional leadership disapproves of the viewpoint, and the question becomes: Who decides? Should the local district panelists have the final say about what is displayed in the Capitol, or should the congressional leadership have the final say (though I expect it would still usually defer to the local panelists in all but a few cases)?
I think it's reasonable for the congressional leadership to make this choice. When it comes to special places of honor in government buildings and institutions—such as the hallways of the nation's Capitol—the government can usually rightly decide which works to honor.
You and I aren't entitled to just hang our creations there; someone has to decide what merits this special treatment. A system in which the decisions are mostly made by local committees, but with some possibility of review by the people who are in charge of the Capitol, strikes me as at least an acceptable system. It doesn't infringe any artist's right to be free of viewpoint discrimination: Artists don't have such rights when it comes to this competition, whoever the judges might be. It doesn't introduce considerations of what art is offensive—those considerations are necessarily part of any such competition, again whoever the judges might be. (It surely creates controversy among the public, and tension with the representative from whose district the painting came, and that might have been reason for the congressional leadership and other representatives not to get involved; but those questions of politics are a separate matter from whether the decision to remove the painting interferes with some principle of free speech or untrammeled debate.)
Now in some situations, one answer to the "who decides?" question is much better than another. For instance, say that many student groups invite speakers to a public university campus, under a university program that generally supports such invitations (providing space and some other benefits).
Here, too, the program isn't viewpoint-neutral with regard to speakers—student groups choose the speakers based on their viewpoints. But I don't think it would be good for the university to override a student group's choice based on the administration disapproving of a speaker's viewpoint. We're better off having these choices made by student groups than by the administration; controversy and debate are good for universities, and a speaker invited by one of dozens of student groups isn't seen as being specially honored by the university.
But say that this is instead a graduation speaker, chosen by a vote of students, and the chancellor decides that the selected speaker would be too divisive or off-putting or otherwise unsuitable. There, I think, it's quite plausible to say that the chancellor should make the final decision.
Again, it's not a question of viewpoint neutrality (graduation speakers aren't chosen viewpoint-neutrally) or the graduation speaker's freedom to engage in offensive speech (the students may well have rejected other possible speakers precisely because they thought the message was offensive). Rather, it's a question of how to allocate the institutional authority to decide who gets a particular place of honor. (A particular decision by the chancellor may of course also be faulted on the grounds that he's wrong to find this particular speaker inappropriate, or that canceling an invitation once it has been issued is rude, in the absence of truly extreme provocation; but that's a separate matter from whether it's categorically improper for administrators to reject graduation speakers based on their viewpoint or perceived offensiveness.)
And if we go away from the special context of the university, where controversy and student autonomy are in many ways prized, and go to other government programs, I think answering "who decides?" with "politically accountable management, rather than unaccountable lower-level actors" is often quite sensible. Say that there was supposed to be a keynote speaker at a conference of Interior Department employees. Should the speaker be chosen by a manager? By a committee of department employees? Or by a committee, subject to a veto by the manager?
Any of these answers is plausible—again, because there's no reason to strongly prefer that any inherent viewpoint discrimination be done by the employee committee rather than by managers. And I'm inclined to think that having some sort of ultimate control in management's hands here would be the better solution, again because the speaker is being given a special place of honor that reflects on the organization as a whole.
Let us return to the painting in the Capitol. Here, we have the Capitol—an unusually prominent building housing the representatives of the people, and thus in a sense itself a representative of the people. Its walls are generally seen as a place for messages that are being specially honored, usually because they are seen as uniting or ennobling rather than divisive or insulting. To be sure, what is uniting or ennobling and what is divisive or insulting is often controversial; likewise for what is so divisive or insulting that the congressional leadership should trump a member's judgment about what to display. But I'm inclined to say that the walls shouldn't be seen as the preserve of local artist panels, with no control by congressional leaders.