Visitors Sue Over National Air & Space Museum's Alleged Demand That They Remove "Rosary Pro-Life" Hats

"We are a museum that promotes equality, and your hats do not promote equality.”

The case, filed Monday, is Kristi L. v. National Air & Space Museum (D.D.C.). Some allegations:

60. Defendant Jane Doe 2 and Defendant Jane Doe 3 … stopped Plaintiffs … and instructed them to remove their hats….

62. As Plaintiffs … walked by Defendant Jane Doe 2 and Defendant Jane Doe 3 to continue into the exhibit, the Does used expletives in reference to the students, some of whom are minors, including J.K., stating: "The f—king pro-life. What a bunch of s—t." …

63. At approximately 4:40 pm, several students of Our Lady of the Rosary School, including Plaintiffs …, were sitting against the escalator wall outside of the Wright Brothers Exhibit when they were once again approached by a NASM security officer dressed in dark clothing and black beanie/hat. Defendant John Doe 2, approached the students and had a big grin on his face and was rubbing his hands together as he said, "Y'all are about to make my day."

64. Defendant John Doe 2 continued to address Plaintiffs Patrick M., Kathleen K., Jane K., J.K., and T.L., along with their fellow students by stating, "You've been told multiple times to take your hats off, and you have not taken them off. You need to take them off or leave."

65. Plaintiffs Jane Kihne and T.L. pointed out other NASM visitors unrelated to Plaintiffs' group who were wearing hats and questioned why they were allowed to wear hats while Plaintiffs were being ordered to remove theirs.

66. Defendant John Doe 2 stated that Plaintiffs' hats were "political statements," and that they were "not promoting equality."

67. Plaintiff Jane Kihne responded by pointing out other individuals freely moving about the museum wearing expressive statements, such as PRIDE masks, as well as beanies and other head attire.

68. Plaintiffs told Defendant John Doe 2 that they had a constitutional, First Amendment right to wear their hats. Defendant John Doe 2 stated, "I'm not taking away your First Amendment rights," and that the museum is a "neutral zone."

69. Defendant John Doe 2 then proceeded to inform Plaintiffs that they must remove their hats because the museum was a "neutral zone," and that the First Amendment "does not apply here." …

78. Approximately 3 minutes after entering NASM, Plaintiff Christopher Morris and others in his group were approached by Defendant John Doe 2 who said: "Excuse me. You need to take off your hats. We are a museum that promotes equality, and your hats do not promote equality." …

These are of course just allegations in a Complaint, but the Smithsonian has admitted that the ejection was improper; here's a copy of the statement that they e-mailed me:

We apologize that visitors to the National Air and Space Museum were asked to remove their hats on Friday, Jan. 20. A security officer mistakenly told young visitors that their pro-life hats were not permitted in the museum. Asking visitors to remove hats and clothing is not in keeping with our policy or protocols. We provided immediate retraining to prevent a re-occurrence of this kind of error.

The Smithsonian welcomes all visitors without regard to their beliefs. We do not deny access to our museums based on the messages on visitors' clothing. Additional information about our policies for visitors is available here: https://www.si.edu/visit/tips

Procedurally, that may affect who can be sued here and for what.

The substantive legal analysis, though, is simple. The inside of a government-run museum is a "nonpublic forum" in which the government as property owner can impose reasonable, viewpoint-neutral restrictions. A rule banning "fuck," "shit," etc. on clothing worn within the museum, for instance, might well be constitutional, since it appears viewpoint-neutral—even though content-based—and might be seen as reasonable.

But a rule, or an on-the-spot action by a government employee forbidding hats that supposedly "do not promote equality" is viewpoint-based, and thus can't be applied to visitors even on nonpublic forum government property.

[UPDATE 2/8/2023, 12:35 pm: I added the statement from the Smithsonian, which I got by e-mail after I put up the original post.]

Comments

[rloquitur]

The security people who did this should be prosecuted to the furthest extent of the law. Where is Merrick Garland?

The other thing--what would happen to the people if they refused to leave and those security trolls put their hands on them? When do you have the right to resist a physical violation of your rights?

[Reallynotbob]

Glib answer: "never" because fighting with law enforcement over civil injustices just isn't negotiable, and people's ideas of what constitutes a defensible right is all over the map.

Less glib answer: "rarely" because first you'd have to know that the office lacks qualified immunity and this blog is well aware of the steep standard for demonstrating those conditions are met.

Non-glib answer: "every time someone is willing to litigate those rights from a hospital bed."

[Ed Grinberg]

fighting with law enforcement over civil injustices just isn’t negotiable, and people’s ideas of what constitutes a defensible right is all over the map.

So, you shouldn't resist:
- when they disperse your peaceful protest
- when they confiscate your guns
- when they arrest you and your family and put you in cattle-car

[WuzYoungOnceToo]

Apparently you didn't make it to the "Non-glib answer" part.

[Savagely Average]

I don’t think Bob was making a statement about whether or when someone *should* resist law enforcement. That's up to a person's own judgment. But if you do resist, you should do it with zero expectation the law is going to back you up.

[The Margrave of Azilia]

Realistic answer - these prolife students didn't fight the guards nor is there any indication they tried to do it.

[rloquitur]

So you're saying that Rosa Parks was morally required to submit to arrest?

[Brett Bellmore]

Historically, that WAS part of how civil disobedience was supposed to work.

[Brett Bellmore]

To explain, the point was to, like Gandhi making salt by the sea, force the government to enforce an odious law, publicly, against an entirely sympathetic and peaceful person. Thus bringing attention to the odious nature of the law.

If the person puts up a fight, they suddenly become considerably less sympathetic, and open themselves to charges, such as resisting arrest, which are themselves entirely defensible.

Of course, the whole concept relies on the general public actually thinking the application of the law IS odious, so it's of basically no use to people who are protesting largely popular laws that the public won't be offended by enforcement of.

This led to the modern perversion of civil disobedience, where you publicly and obnoxiously violate some entirely defensible law, in a manner that grossly inconveniences the public, to make it impossible to ignore your protest of some unrelated law, and garner publicity.

You know, chaining yourself across a door, (You're not protesting the door being unchained!) gluing yourself to the pavement, throwing paint at exhibits in museums. The idea there isn't to embarass the government into abandoning an indefensible law, it's to just be such a pain in the ass that people will give you what you want just to make you shut up and go away.

Spoiler: They generally don't, but instead cheer the police on.

[rloquitur]

That's all well and good--but does society have the right to demand that people meekly submit to the violation of their rights?

[Kazinski]

Of course they don't have the right, but someone resisting arrest is putting themselves at risk for a beating and serious jail time.

It doesn't really raise the stakes for "society", while you are going all in.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

tl;dr -- read MLK Jr's Letter From a Birmingham Jail.

But if Brett's comment was tl;dr, this is el;wr.

[Savagely Average]

Wait -- you're telling me people gluing themselves to priceless paintings didn't fix climate change?

[Kazinski]

Well to be fair it’s as effective as anything else is, including spending trillions.

In the bigger scheme of things I'd rather sacrifice a few paintings as opposed to scrapping a coal plant when it's still needed for baseload power and causing people to freeze to death whether because of blackouts, or seniors not keeping their homes warm enough because they can't afford the hearing bill.

[Savagely Average]

Well, to also be fair, those protestors didn't actually destroy any paintings. They just inconvenienced a bunch of art-lovers. So... hooray for climate awareness?

[Brett Bellmore]

They've threatened to escalate to actually destroying them, since just damaging frames and messing up cover glass hasn't worked.

[Savagely Average]

Interesting. The group leader’s logic is: Suffragettes destroyed paintings. Later, women got the franchise. So, destroying paintings is effective.

That seems flawed.

[Dr. Ed 2]

I will go one step further -- may the state require that all expressions "promote equality" or is that, itself, a violation of content neutrality?

However -- Cohen v. California???

How is that different from wearing a jacket that said "Fuck Biden" on it? (Or Fuck Trump", although I suspect that wouldn't bring the same ire....)

[Savagely Average]

As the Prof says above, in a nonpublic forum the state may not, consistent with the First Amendment, require expressions that “promote equality.” Nor may it restrict expressions based on the judgment that they “do not promote equality.” Those are viewpoint-based restrictions on speech.

Assuming the complaint allegations are more true than not (which based on the museum’s response appears to be the case) this is a garden-variety first amendment violation. Should settle for an apology, reasonable reimbursement of whatever costs the group incurred and a pledge by the museum not to do it again.

[WuzYoungOnceToo]

Should settle for an apology, reasonable reimbursement of whatever costs the group incurred and a pledge by the museum not to do it again.

As well as termination of the employment of those responsible, and the hiring of replacements who do not think their job is to enforce their personal beliefs and punish those who do not share those beliefs.

[Currentsitguy]

"the museum was a "neutral zone," and that the First Amendment "does not apply here.""

The level of Constitutional ignorance here is jaw dropping.

[Reallynotbob]

Even Romulan, one might say.

[Ed Grinberg]

The level of Constitutional ignorance here is jaw dropping.

Indeed.
But hey, at least it wasn't the Constitution Museum or the First Amendment Museum!

[Frank Drackman]

There was a day when courts weren't needed to deal with behavior like this.

[Ed Grinberg]

That's nothing. Some day (soon, I think) courts will say it's OK.

[Macy's Window]

I fear you might be correct.

[Absaroka]

If the facts are as alleged, which seems likely, then that's pretty bad.

It sounds like the Smithsonian is taking appropriate action; good for them. I suspect that the average guard they hire isn't a rocket scientist (sort of pun intended). If the Smithsonian fixes the problem, that's how the system is supposed to work, and I'll save my outrage for some similar incident where the organization tries to stonewall.

[The Margrave of Azilia]

I'm curious about where these not-rocket-scientist security guards got their ideas about how to promote equality.

[Absaroka]

That is a good question. I am fairly sympathetic to a GS-5 guard being clueless. If the subject just never came up in training and the guards just got their info elsewhere, OK. OTOH if the GS-11 trainer gave them bad info, he/she doesn't seem qualified.

[rloquitur]

I am not. The guard committed a federal crime.

[Macy's Window]

Why would a guard think that he/she has the authority to judge whether a political message is acceptable?

It can't be that all political messages were unacceptable. There is evidence -- and I am sure it is true -- that people wear hats with all sorts of political messages on them.

But the guard picked out this group bc he/she did not like the pro-life message.

So, no, I cannot buy the idea that the guard was simply ignorant.

[Ed Grinberg]

I’m curious about where these not-rocket-scientist security guards got their ideas about how to promote equality.

From their CEO, I'd say:
https://www.cbsnews.com/news/biden-maga-republicans-semi-fascism/
How do you promote non-fascism? By declaring your political opponents enemies of the people, of course!

[Longtobefree]

The museum is not taking appropriate action.
The appropriate action to take against an employee who verbally abuses children is immediate termination.
If his initial training did not include how to behave as a public employee, then fire the training staff as well.
(disclosure: I am a mean old man)

[Absaroka]

I take your point, especially with respect to the invective - that indicates that maybe he/she doesn't have the right temperament for the job.

But you have to bear in mind that half the population is below the median, and the people applying as guards usually aren't much different than people applying at McDonald's. If you want to have guards at all, you have to do the best you can from the people who apply.

(to be clear, I'm guessing based on generalities here; if the Smithsonian is the exception and sends it's GS-11 guards off for a year of training, never mind)

[The Margrave of Azilia]

I'm trying to recall the last time a McDonald's employee behaved like this. Or how long they kept their job afterward.

[Rev. Arthur L. Kirkland]

What is the appropriate response with respect to insurrectionists who engage in criminal conduct in the service of delusion, disaffectedness, bigotry, and backwardness?

[The Margrave of Azilia]

That would depend on the political orientation of the insurrectionists, and whether people like you approve of their politics.

[Macy's Window]

^+10

[Rev. Arthur L. Kirkland]

Another apologist for un-American right-wing insurrectionists heard from at an un-American blog operated by disaffected culture war casualties who find disgraced insurrectionist John Eastman just dreamy.

[epsilon given]

[epsilon given]

I really don’t know, but I do know this: when we figure it out, we’ll know what to do with you, and people like you — particularly after the damage you guys have done to cities across the country, destroying minority-owned businesses, and threatening the destruction of businesses if the Presidential election didn’t go your way.

[Rev. Arthur L. Kirkland]

You appear to be unfamiliar with how culture wars and modern America work. Guys like you — right-wing misfits, culture war casualties — don’t get to do much of anything except comply with the preferences of your betters and complain about it.

[MK Ultra]

Culture war winning towns like DC, Baltimore, and Chicago should be shining examples for the rest of the country.

[Brett Bellmore]

Realistically, the problem probably comes from further up. It's the Smithsonian, and they're accumulating a track record of things like this.

I doubt they got specific direction to do things like this, (Though who knows?) but they're immersed in the zeitgeist.

[mydisplayname]

The Smithsonian _is_ accumulating a track record of similar behavior and I am not yet convinced it isn't an organized effort.

Personally, I have witnessed five incidents in which patrons have been asked to leave due to the messaging on their clothing. I have no idea if the guards' inappropriate behavior was driven by the museum system, by some other organization which with the guards' were affiliated, or by each guards' individual whims.

The trend is being carefully documented.

[Sarcastr0]

Carefully documented!

[Macy's Window]

Not just the Smithsonian. It is organizations in general.

The pods were in the naproom.

[Sarcastr0]

organizations in general

THIS GOES ALL THE WAY TO THE TOP!

[Brett Bellmore]

You know, mockery isn't actually an argument. It's what people do when they don't have one.

Sadly, the Smithsonian actually did produce that "Whiteness" chart, for instance.

[Sarcastr0]

When you support the concept that *organizations in general* are doing this intentionally, I'll engage more seriously.

As it is, this is just paranoid ranting.

It seems a pattern around here when there is legit bad behavior found.
Take that hand, and overplay it 2 ways:
-Demand draconian punishments.
-Spin it into a vast conspiracy.

It's reflexive, and silly. Not worth more than mockery.

[Savagely Average]

Does it occur to anyone how insanely offensive it is to suggest that things like ‘hard work’ are examples of ‘white culture’? Like, the chart literally says that ‘white people’ somehow invented the concept of working hard and that a nonwhite person who works hard is really just ‘acting white’. Good grief.

[Social Justice is neither]

It's not like this very institution didn't put out it's racist and explicitly leftist guidelines before and only took them down due to backlash. Looks like that shit is still part of their training and culture they just don't stick it on their website now.

[Rev. Arthur L. Kirkland]

Superstitious, fledgling hayseeds from nonsense-teaching, discriminatory schools in bigoted southern states have rights, too. Even when represented by un-American, bigoted, Trump-hugging lawyers.

If evidence indicates these students were discriminated against for being superstitious and opponents of abortion, the people who discriminated against them were wrong. Even assholes who discriminate against others are entitled to legal protections against discrimination.

[Frank Drackman]

it's a Black School, dumbass

[Rev. Arthur L. Kirkland]

Check the website, dumbass.

Just as superstition does not improve bigotry (nor transform gay-bashing, for example, into anything other than disgusting bigotry), race does not improve superstition.

[Frank Drackman]

My Bad, the photo shows about 1/4 of the class are "Students of Color" (why is "Students of Color" OK, but "Colored Students" isn't?)
or about 256 times as diverse as "1/1024th Native Amurican" Senator Poke-a-Hontas.
And don't check out the Photo Rev.olting Jerry you'll violate some codicil of your Parole

Frank

[Brett Bellmore]

"why is “Students of Color” OK, but “Colored Students” isn’t?"

Because they change these things up occasionally to see who's keeping track.

[Rev. Arthur L. Kirkland]

Do you mind being described as an autistic, bigoted, antisocial, right-wing misfit from the can't-keep-up sticks?

[epsilon given]

Now you're bashing autistic people? Your bigotry knows no bounds!

No wonder why you're at home in the Democrat Party. The Party that fought a war to preserve slavery, and to this day, insists that minorities cannot succeed at college unless we dumb down the standards for them, but not for whites!

[Rev. Arthur L. Kirkland]

I'm not bashing autistic people. I am noting that Brett Bellmore is an awkward, antisocial, bigoted right-winger whose conduct might be explained, in part, by his autism.

So far as I am aware, not all autistic persons are bigoted, antisocial, disaffected, right-wing culture war casualties. I would expect to observe that most of them are not.

Carry on, bigoted clingers. Your betters will let you know just how far, though, and not a step beyond.

[Macy's Window]

But you neatly sidestep your own previous claim that it was one of the "discriminatory schools in bigoted southern states."

Obviously, your claim was wrong and you didn't know that a large % of the (private) school's student body was African-American.

So, you neatly shift to a claim about "superstition" and hope no one notices the failure of your knee-jerk claim.

LMAO.

[Rev. Arthur L. Kirkland]

Racial discrimination is not the sole source of bigotry, you bigoted rubes.

This school boasts about have a 100% Catholic workforce. That is the viewpoint-driven hiring discrimination to which I referred. I also would bet my house that these southern clingers are avid gay-bashers, too. Anyone want to take that wager?

Discriminatory southern bigots. That was easily predictable and demonstrated.

Carry on, clingers. Thank goodness you dumbasses are on the other side of the culture war (the wrong side of history).

[ReaderY]

And a century ago the enlightened were calling people who thought dark savages more than barely human the same sorts of names. There were lots of prominent scientists running Eugenics Societies in the first half of the 20th century. And they said the same sorts things you are saying here, that the idea that scientically inferior beings should have equal rights is nothing but religious nonsense, superstition, irrational, not science-based.

[Frank Drackman]

"A century ago" ??
Margaret Sanger's only been in hell some 56 years and her Einsatzgruppe Planned Parenthood is still going strong
https://www.plannedparenthood.org/uploads/filer_public/9e/67/9e670612-54ef-4a6a-a067-4540ba0c6fe0/2020-2021_ppse_annual_report_-_final.pdf

Frank

[Ed Grinberg]

Even assholes who discriminate against others are entitled to legal protections against discrimination.

According to the museum staff, being pro-life somehow means being against "equality." (Don't ask me how.)
This buffoon says it's "discrimination."
WTF?!

[Rev. Arthur L. Kirkland]

The relevant discrimination involves gay-bashing by superstitious bigots.

Superstitious, conservative bigots have rights, too.

[Frank Drackman]

Superstitious Bigots? Like Barry Hussein O (Peace be upon Him)
who will most likely go down in history as the last POTUS who opposed Same Sex Marriage (look it up! "45" didn't, and Senescent Joe (in 2012 he was just "Stupid Joe") was the one who got BHO (Peace be upon Him) to change his mind. https://abcnews.go.com/blogs/politics/2012/05/timeline-of-obamas-evolving-on-same-sex-marriage

Frank

[Frank Drackman]

the "Money Shot"

OCTOBER 2010: " I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage,"
President Obama said during an interview with liberal bloggers.

Frank "Agrees with Barry"

[Ed Grinberg]

I find the argument that the students’ hats “were ‘not promoting equality'” baffling.
I suppose the idea is that the women who are prevented from having an abortion are somehow denied “equal rights.” (Equal to who?)
Of course, this completely ignores the unborn baby and its right to life.

[EscherEnigma]

I took a look at the complaint.

Call me crazy if you like, but it sure looks like trying to call this a 5th Amendment violation is a poison pill meant to guarantee that the Museum will fight this.

I'm not arguing that the Museum was in the right. But it sure looks like this group isn't seeking justice, but press.

[ReaderY]

And why not? The officer here was clearly not promoting equality. The fact he kept referencing equality while denying the plaintiffs equal protection suggests the conduct was intentional.

If museum employees and a security guard said that they needed to keep black people out to promote “racial harmony” and “civil rights,” the NAACP would sue on Equal Protection grounds, even if only for the press value of pointing out the irony. This is no different.

[EscherEnigma]

So you didn't double-check which Amendment #5 was, huh?

[EscherEnigma]

Or maybe I checked it poorly. Eh, whatever.

[Macy's Window]

In seeking justice, it is sometimes necessary to get some press.

MLK talked to the press sometimes.

[ReaderY]

Given the disparate treatment they received, the plaintiffs might want to make a 5th Amendment Equal Protection Component violation claim in addition to the standard First Amendment claim, just to make the point that the officer here did not promote equality.

[y81]

The Fifth Amendment does not require equal protection, just due process. (Although there is a Peter Weston article (in the Harvard Law Review some years back) that says they are the same thing.)

[Frank Drackman]

I guess that "Taxation without Representation" makes the Natives irritable

[The Margrave of Azilia]

Well, to be fair, attitudes like these employees' belong in a museum.

Maybe not a science museum, but a Museum of Bad Ideas.

[Rev. Arthur L. Kirkland]

a Museum of Bad Ideas

Displayed next to the "Old-Timey, Gay-Bashing Bigotry Based On Silly Fairy Tales" exhibit?

Soon enough, Americans will need to visit a museum to learn about most of the thinking and positions of right-wingers.

[The Margrave of Azilia]

It seems that the superior characteristics of better Americans don’t include doing HTML properly.

[Rev. Arthur L. Kirkland]

You should try to be nicer, lest your betters decide to stop being so magnanimous toward the culture war's deplorable losers.

[epsilon given]

It's cute how you think your bigotry makes you "better" than others!

I'm glad your Party was defeated in the Civil War. If we could just defeat your Party once and for all, we could finally purge bigotry of all types from our country.

[Rev. Arthur L. Kirkland]

The reason downscale right-wingers call the liberal-libertarian mainstream "elitists" is that even you stupid conservatives recognize that we are your betters.

The culture war is not quite over but has been settled.

Losers: Bigotry, superstition, Republicans, backwardness, conservatives, ignorance, faux libertarians, backwater religious schools, right-wingers, can't-keep-up rural and southern communities.

Winners: Inclusiveness, modernity, Democrats, science, the liberal-libertarian mainstream, our strongest research and teaching institutions, reason, and successful, educated, modern communities.

[Kazinski]

Well it's an air museum, not a science museum.

And they seem to be trying to emulate the service of most airlines.

[Retired Government Tax Lawyer]

This museum is located in a city where the default license plate slogan is a political message in favor of DC statehood: "Taxation without representation." You have to pay a fee if you want a different logo on your plates.

[Social Justice is neither]

The people that live there write and influence the law directly, so they have much more representation than the average person in the home districts.

[Squire Al]

Maybe just me but kind of wondering who all those black beanie wearing people were. Yamulke anyone?

[DonP]

Without a picture I can't tell for sure. But "Beanie" is a current term for what we used to call "Stocking Caps", Canadians refer to as "Toboggans" and the Navy and Coast Guard call them "Watch Caps". Standard colder weather wear for many security teams and police on patrol.

[Brett Bellmore]

Huh. A quick search confirmed this instance of linguistic drift; I didn't see any images of actual beanies at all.