Dem lawmaker files lawsuit over police painting

Dem lawmaker files lawsuit over police painting
© Greg Nash

Rep. Lacy Clay (D-Mo.) filed a lawsuit in federal court Tuesday against the Architect of the Capitol for removing a constituent's painting that depicted police officers as animals.

The painting became a cause celebre in January, with Republican lawmakers repeatedly taking it down. The Architect of the Capitol eventually decided that the painting violated the rules of the competition that earned it its place in the Capitol complex.

Clay said the decision made by Architect of the Capitol Stephen Ayers violated his constituent’s right to free expression. 

“This case is truly about something much bigger than a student’s painting. It’s about defending our fundamental First Amendment freedoms which are currently under assault in this country,” Clay said in an appearance in front of the E. Barrett Prettyman federal courthouse steps from the Capitol. 

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The artwork by student David Pulphus depicts a confrontation between a black protester portrayed as a black-colored panther and police officers who resemble feral pigs.

Pulphus and Clay are both named plaintiffs in the lawsuit. They are receiving pro bono legal counsel from Leah Tulin of Jenner & Block LLP, James Williams of Chehardy, Sherman, Williams and Kymberly Evanson of the Pacifica Law Group.

Clay's district includes Ferguson, the site of a high-profile shooting of an unarmed black teenager by a white police officer.

The painting had been displayed in a highly trafficked tunnel connecting the Capitol and surrounding House office buildings as part of an annual high school student art competition. Lawmakers, staff and visitors had passed it countless times since last May, until conservative media outlets took notice of it in December.

Coverage from conservative media led police advocacy organizations to demand its removal. Several House Republicans took the painting off the wall themselves, forcing Clay to re-hang it three times in one day.

Eventually the Architect of the Capitol, under pressure from GOP leaders, ordered the painting's indefinite removal last month. The Architect of the Capitol cited House Office Building Commission rules, to which the art competition adheres, prohibiting artwork of sensational nature or about contemporary political controversy.

Clay charged that the Architect of the Capitol's office never raised objections about whether the painting adhered to the rules until last month. All of the winning pieces of artwork in the competition must be approved before they can be displayed in the Capitol complex.

The lawsuit states that a staffer working in Clay’s office delivered the painting, titled "Untitled #1," last May to Architect of the Capitol staff for review prior to official acceptance into the art competition. According to the lawsuit, the Architect of the Capitol staff inspected the painting and determined it complied with the guidelines.

The only question raised about the painting at the time was about whether it met the size requirements, which it did.

House Minority Leader Nancy Pelosi (D-Calif.) tried to appeal the decision to remove the painting, but she was outnumbered on the House Office Building Commission, which is controlled by Republicans.

Until this year, no other artwork had been taken down prematurely since the art competition began in 1982.

“By permitting the objections of certain Republican lawmakers to the content and perceived viewpoint of the Painting to silence Plaintiffs’ constitutionally protected speech, the [Architect of the Capitol's] retroactive disqualification of 'Untitled #1' amounts to a 'heckler’s veto,'" the lawsuit states.

The lawsuit also alleges that the decision to remove the painting impedes Clay’s ability to represent his district because there is no longer any art on display from his district in the tunnel.

“Representative Clay’s ability to perform his representational duties has thus been impinged,” the lawsuit states. “Unlike his colleagues, who are able to promote the art of their constituents through participation in the competition, Representative Clay may no longer sponsor and promote the artwork of his district in the same manner as other Members of Congress.”

It adds that Clay is “experiencing ongoing stress and anger over the retroactive and viewpoint-based exclusion of his district from the competition” and that he and his staffers’ time has been “diverted from important legislative responsibilities as a result” of the Architect of the Capitol’s decision.

Clay was joined Tuesday by Rep. Jamie Raskin (D-Md.), a former constitutional law professor. Raskin argued that if GOP leaders are insisting upon removing Pulphus’s painting because they find it objectionable, statues of Confederate leaders like Jefferson Davis, Robert E. Lee and John Breckenridge should be also be taken out of the Capitol. 

“That needs to be taken down immediately if there’s going to be a new standard of political correctness imposed by congressional leadership,” Raskin said.

This story was updated at 1:51 p.m.