United States: Exhibition Interference Shows That Public Institutions Still Struggle With First Amendment

Use of Confederate Flag in California Painting and Klan Imagery in Massachusetts Leads to Removal of Controversial Works

Two recent interventions by public authorities to remove controversial works of art underscore that, like last year's Leonard Peltier painting dispute, the proper application of the First Amendment remains more elusive than it should.  In California, a state law prohibiting the display of the Confederate flag led to the removal of a specific painting from an exhibition, while north of Boston at Salem State University, a painting depicting figures in Ku Klux Klan robes was shut down entirely.  Together, these examples provide a useful of what state authorities can, and cannot do with regards to messages they find offensive.  The difference is very important.

The confusion in both cases reminds us to remember what the First Amendment is for: it is not to shield the public from expression, it is to promote it.  The government can, as a matter of policy, take whatever position it deems appropriate, but the very essence of the constitutional protection is that it may not tell the rest of us what to say.  In this regard Salem State's response, while clearly intended to be supportive of its community, is problematic because at its core it consists of a state actor discouraging a particular form of expression. 

Artist Timothy Desmond created a painting in 2015 called The Attack, in which a regiment of Confederate soldiers is depicted advancing from the right side of the frame into battle.  Ahead of them are four figures, two of which carry flags.  One flag is a ostensibly a regimental banner for the "Old Confederate Reg't," and lists battles of the Civil War like Shiloh, Chickamauga.  The second flag is the Second National Confederate States flag, which has at the top left the "Stars and Bars" that is commonly known as the Confederate Flag (but which was, in fact, technically the battle flag of the Army of Northern Virginia).

Desmond submitted The Attack for display at the Big Fresno Fair in California, as he had other works in recent years.  He was apparently advised to retrieve his painting because California law prohibits the state from displaying the Confederate flag.  California Government Code § 8195 provides that:

The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.

Desmond sued in U.S. District Court, arguing that the refusal to display his painting was viewpoint discrimination forbidden by the First Amendment.  The parties apparently stipulated to allow Desmond's painting to be in the fair, but the lawsuit remains pending and it is not clear whether Desmond intends to press his claims further.

Here in Massachusetts, an exhibition at Salem State included a work by Lowell artist Garry Harley included in an exhibition entitled "State of the Union."  The painting shows several figures in Klu Klux Klan attire against a black background.  According to the Boston Globe the show opened on November 9, after which the (state) university began receiving complaints about it.

Earlier this week, the school set up a discussion forum.  Apparently at the end of that meeting, the school closed the exhibition.  Shortly thereafter, the Art and Design Department chair, Mary Melilli, sent a letter of apology, which stated in part:

At the end of the discussion, we announced that the two of us – the chair of the art + design department and the exhibit's curator – have decided to temporarily suspend the exhibit and work with students to discuss next steps. Immediately following the meeting, we arranged a Monday meeting with students to discuss how to move forward while taking all concerns into consideration.

We understand that not displaying the context in close proximity to the artwork in the exhibit contributed to the strong reaction from our community.

Notably absent from the statement is any comment from the artist himself, and whether he agreed to the clsoure.  If not, the fact that Salem State is a state college raises the question of whether the artist's First Amendment rights have been infringed.

Looking at these two cases, then, what does the law have to say?  In both cases there is state involvement, either a state fair or a state college.  Given that, it is important to review the caselaw of what a state can do when it provides the opportunity for creative expression, typically referred to as a "forum."

First, there are what are called "traditional public forums." Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. These forums enjoy the strongest First Amendment protections. The government may only impose content-neutral restrictions as to time, place, and manner of speech (only during daylight hours, no amplification, etc.), it may not engage in viewpoint discrimination (no pro-war speech, no anti-war speech).  Any restriction of speech in such a forum will be reviewed with strict scrutiny and will survive only if it serves a compelling state interest.

Next, there are "designated public forums," in which the government opens public property for expression that is not ordinarily a forum for public expression. The government may close a designated public forums at any time, but so long as it is available, it must be content neutral in the same manner as a traditional forum.

Lastly, government may limit access to a "limited public forum" to certain kinds of expression or speech. Even though the government may discriminate against certain classes of speakers, it still may not discriminate based on viewpoints.

Like the Peltier case, both the California and Massachusetts events appear to be designated public forums.  Both artists' paintings were removed from display precisely because of their content, however.  It appears that perhaps the California decision was made in error thinking that the Desmond painting constituted the state making a statement, which the First Amendment does not protect.  A state is free to say, or not say, anything, and the California statute that prevents the state of California from displaying the Confederate flag is entirely consistent with the Constitution as long as no one purports to restrict individuals' rights to do so. 

The Salem State incident is slightly more complicated.  It appears that Salem State decided to close the forum entirely, thus, unlike in Peltier, it did not continue to display art of which it approved while removing disapproved works.  Ironically, however, given the emphasis on the need for "context," however, the school's statements pretty clearly establish that the decision was for the purpose of removing this one specific work from public view—content discrimination forbidden by the First Amendment.  Harley has what may be a compelling First Amendment argument on the basis of this.

The reader will note that nothing in the discussion above addresses the artistic value or impact of either work.  That is precisely the point.  These images are among the most powerful visual triggers in existence.  Whether the works are intended to endorse the symbols they depict or criticize them, and whether than meaning is apparent with or without context, however, is not for the government to say. 

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