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Deciding What To Exhibit:

The Green Bay Press Gazette reports (thanks to Bill Tyroler for the pointer):

A decision to pull a piece of art from a University of Wisconsin-Green Bay exhibit has spurred activism on the part of students and discussion about First Amendment issues across the campus and in the community.

The art in question is a sheet of mock postage stamps by artist Al Brandtner showing President Bush with a gun pointed at his head, captioned "Patriot Act."

Some say it advocates assassination. Others say it's free expression.

UWGB Chancellor Bruce Shepard says it's not appropriate for the school's gallery. . . .

Seems to me that a university is quite entitled to decide what material to put in its exhibitions. The exhibitions aren't public fora, open to all comers; the university must pick and choose what's worth displaying, and its choice is at least in some part an endorsement.

The viewpoint of the art is, I think, a constitutionally permissible factor to consider. They needn't, for instance, put up racist paintings; neither do they have an obligation to put up works that appear to endorse assassination. (I realize that art is often ambiguous, but the university may properly infer that most or at least many viewers will interpret it as conveying a certain message, a message that the university doesn't want to promote it.)

For the same reasons, I also don't think that the university is obligated by academic or artistic freedom to include this work. (I distinguish constitutional obligations, which are the minimum that a public university must comply with, from academic or artistic freedom obligations, which may go beyond what the law requires.) The university needn't exhibit works whose views they find repugnant.

The constitutional matter is not open and shut; NEA v. Finley suggested that the government may not engage in "invidious viewpoint discrimination" even when it's funding works based on a quality judgment. I's conceivable, then, that the NEA and other government funding agencies might have an obligation to fund racist artwork, pro-assassination artwork, and the like. But NEA v. Finley didn't squarely hold this, and didn't clearly define what constitutes "invidious viewpoint discrimination"; and beyond that, it seems to me that even if the government has a duty to be viewpoint-neutral in such funding programs, it may pick and choose what it displays in its own galleries.

Finally, note that the rule is indeed different when the government funds a wide range of private speech with no quality judgment, for instance when a public university funds student newspapers, when the government gives a tax exemption to nonprofit speakers, when the government provides subsidized mailing privileges to speakers, and the like. These sorts of programs are treated as "designated public fora," and the government may generally not engage in viewpoint discrimination in such fora. But, as I noted, university-run exhibits are not such take-all-comers programs; they necessarily involve government judgment about what to include, and thus a sort of government endorsement. This justifies the government in choosing which viewpoints it wants to endorse.

LArry (mail) (www):
But there is also Rosenberger v. Rector &Visitors of Univ. of Va., 515 U.S. 819, 839 (1995) which concludes that


[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.


9.20.2005 3:24pm
Jason DeBoever (mail):
As a non legal professsional I wonder why this 'art' doesn't also meet the definition of threat, a crime which is compounded when directed at the president. After all, it depicts an ACTUAL person, not a vague representation. It also doesn't depict an interpretation of anything, but rather a desired outcome -- even if one could argue, unconvincingly, that it was an interpretation of a desired outcome, i.e an illiteration of having his policies 'killed'.
9.20.2005 3:42pm
William Spieler (mail) (www):
Well, this is why there shouldn't be publicly funded art galleries, heh.
9.20.2005 3:45pm
David M. Nieporent (www):
Jason, a "desired outcome" is not a "threat." A statement of intention, not desire, is required. Of course, an implicit statement can be sufficient, but I don't think any reasonable person would view this exhibit and think, "This artist is going to go kill the president."

(Maybe, "This artist wishes the president dead" -- but you're allowed to wish someone dead.)
9.20.2005 3:50pm
Jason DeBoever (mail):
what about inciting others to carry out that wish. Seems to me he's doing just that.
9.20.2005 3:54pm
Goober (mail):
what about inciting others to carry out that wish. Seems to me he's doing just that

Sheesh.

Rosenberger, if I recall, is one of those designated-public-fora cases Prof. V was talking about; the school resources in that case were made available to every student group that wanted them, and Wide Awake was denied specifically because it was religious. (I think the school may have believed it would be violating Establishment otherwise, or running afoul of some tax provision?) But art galleries neither propose to, nor should be compelled to, display every bit of art submitted. There is some theoretical limit to this, I suppose; if as a matter of practice government endorsement only went to overtly political art in favor of the president, or praising the military or police, or hagiographies of Mr. Rogers, I suppose there could be a different result, but here I think Prof. V's conclusion is relatively non-controversial.

I wonder if there might be some independent principle of respect for neutrality, though, that resides in notions of academic freedom but not necessarily finding a home in the First Amendment. We want judges to be honest, and honestly to seek the best art, or literature, or articles &c. (From the description provided, I don't think the picture being considered is in any danger of winning "best" anything.) The First Amendment doesn't compel such an outcome, but we might want the judges to reject this contribution on the merits without reference to its controversial nature.

(Remember the shoe sometimes changes feet: Prof. Volokh issued a post a while back on this site in reference to Pat Robertson's call for the assassination of Hugo Chavez. I don't think that post qualified as great prose, but if it had and were being considered for inclusion in some honorable journal, wouldn't we find something wrong with it being rejected on the judgment that it rationalized assassination?)
9.20.2005 4:23pm
Richard Bellamy (mail):

"This is an exhibit that UWGB sponsors, and it's done with taxpayers' money. When we do this, we get to decide what we show and what types of messages we want to send out," Shepard said. "I don't want the reputation of UWGB to represent advocacy of assassination."


But isn't the Chancellor's arguments exactly backwards, and more so? He's emphasizing that it's being done with "taxpayer money", as evidence that he should be able to discriminate based on viewpoint. If fact, the fact that it is publicly funded is an argument AGAINST viewpoint discrimination. He should be focussing on the PRIVATE aspects of the gallery.

Meanwhile:


"(Thursday), ironically, is National Constitution Day, so we as art students feel that it's irrelevant whether we support the actual image or the idea behind it. … We just feel that any art is valid and the Constitution and the First Amendment of the Constitution give us the freedom of speech and freedom of expression."


The students are arguing that the First Amendment should be interpreted to permit art based solely upon its quality, and not its viewpoint (even if that viewpoint be racist or whatever). That's a valid viewpoint of what the First Amendment should say, at least as pertaining the "taxpayer funded" art galleries. The art students aren't interpreting NEA v. Finley, they are just disagreeing with it and interpreting the First Amendment on their own. "The Supreme Court got it wrong," is a perfectly valid viewpoint, seen here regularly.
9.20.2005 4:29pm
Todd Lowman:
No doubt there was a lot of aggressive hatred directed at Clinton during his time in office. I don't think, though, that I can ever remember seeing as much assassination porn directed at a current president as I do against W.
9.20.2005 4:54pm
Michael Rushton (mail):
An interesting case on controversial art in a college, by a member of faculty, is Piarowski v. Illinois Community College District 515, 759 F.2d 625 (7th Cir. 1985) - it provides a good illustration of Richard Posner's approach to expression.
9.20.2005 5:00pm
Anonymous Phoenix:
The LGFer's predictably went a little nuts with this one:
http://www.littlegreenfootballs.com/weblog/?entry=17551&only

I do realize this blog focuses on the legal aspects of the Chancellor's decision, but I'd just like to clarify any impressions regarding the political climate at UWGB, and illustrate how some First Amendment issues have been dealt with in the past.
The students are largely apathetic; if anything, the College Republicans draw more people than liberal student organizations.
There was a small incident about 2 years ago that led to the temporary demise of the College Republicans. The University had created an award for a Woman Of The Year. The College Republicans decided to have a little fun and respond with a Man Of The Year award. The inaugural recipient of this prestigious award was a leftist professor who likened conservatives to Nazis in materials he posted to his university website. The College Republicans printed up posters advertising the upcoming ceremony. Before the ceremony took place, the College Republican's faculty adviser (who never had any significant involvement in the group) resigned without any notice, claiming the award was an underhanded attempt of character assassination. Without any faculty adviser, the College Republicans were no longer an official student organization. The controversy also shed light on the activities of one particular student, who held leadership positions with both the student newspaper and the College Republicans. The student was given an ultimatum to choose between the two.
9.20.2005 5:12pm
Dave Hardy (mail) (www):
Quare the impact on this of it being an art display... and I gather the modern definitions are "art is whatever is made by an artist" and "an artist is one who makes art." Just a trifle circular. I trust they'd reject my doodles, so they must be making some manner of qualitative judgment, subjective judgment, to begin with. (And since we cannot define art, let alone quality art, that must be the height of subjectivity). Or is that unimportant, since the decision here was based upon content rather than artistic nature?
9.20.2005 7:06pm
Anderson (mail) (www):
Okay, but what if the art just, you know, sucks?

Because a big ol' picture of Bush with a gun pointed at him is pretty lousy art, if you ask me. Ditto if it's Clinton, Jesus, the Tooth Fairy, whatever.

Can the university say "this art sucks"? Or would that raise the frightening prospect of having to remove ALL the lousy pseudo-art, leaving a cavernously empty gallery?

I guess you could call the cavernously empty gallery "art" these days.
9.20.2005 9:54pm
Brian G (mail) (www):
A more recent Supreme Court decision, Good News Club v. Milford Cent. School, 533 U.S. 98 2001, just like Rosenberger, seems to indicate that in a designated public forum (or limited public form, whichever term you prefer), the standard to apply is reasonableness. Simply put, if the university can prove the decision to exclude was reasonable, it will be upheld as valid. Remember, in Rosenberger the school chose to exclude from school facilities because they were religious, while opening up facilities for every other group. (the facts of Good News Club are very similar) That was viewpoint discrimination. The decision to exclude the art is "content-based." The university is well within its rights, in my amatuer analysis.
9.20.2005 11:35pm
DWPittelli (mail) (www):
Suppose the school had previously exhibited a poster with a gun pointed at Al Sharpton -- captioned "Freddy's Fashion Mart." Or of a gun pointed at Ted Kennedy -- captioned "Chappaquidick." Or Clinton -- "Waco." Then they might have some legal difficulty right about now for viewpoint discrimination in excluding art which both attacks a public figure for his controversial action, and links the action to a logically implicit but visually explicit threat to be shot.
9.21.2005 12:18am
Richard Careaga:
A "work of art" and a "political statement" are not mutually exclusive categories. Assume the piece is art. It is also a political statement that supports a fairly straightforward interpretation: Here is a representation of a sheet of postage stamps. Postage stamps celebrate the obvious. These stamps depict a gun held to the held of a recognizable public official and the words "Patriot Act." It is therefore obvious that exerting force against this official is the real Patriot Act, not the legislation of the same name.

It shouldn't matter who the official is, whether the force is understood to be actual or metaphorical or what the subjective intent of the artist was. Objectively, it's a political statement and the question for the university is whether it is the type of political statement with which it chooses to be associated. Only if the university does wish to be associated with political statements concerning bringing [overwhelming] force to bear on officials of that type in the name of some public good does it have to confront the content issues of which officials, what actual or symbolic force and in the name of what good does the statement labor.

By this point the government is providing a forum for political statements about which it maintains complete neutrality or among which it discriminates. Political speech is inherently public in subject matter; the facilities are owned by the public; and even if the gallery is not open to unrestricted access by the public at large it's presumably open to a specified segment of it selected by the government. I don't see a principled basis for concluding that the forum isn't public.

The problem with that line of reasoning, of course, is that followed to its logical conclusion, classrooms could be public fori and a university would have to decide whether it were going to retain faculty without regard to political opinion, which would require it to make fine distinctions between political and academic matters.
9.21.2005 3:14am
Richard Careaga:
A "work of art" and a "political statement" are not mutually exclusive categories. Assume the piece is art. It is also a political statement that supports a fairly straightforward interpretation: Here is a representation of a sheet of postage stamps. Postage stamps celebrate the obvious. These stamps depict a gun held to the head of a recognizable public official and the words "Patriot Act." It is therefore obvious that exerting force against this official is the real Patriot Act, not the legislation of the same name.

It shouldn't matter who the official is, whether the force is understood to be actual or metaphorical or what the subjective intent of the artist was. Objectively, it's a political statement and the question for the university is whether it is the type of political statement with which it chooses to be associated. Only if the university does wish to be associated with political statements concerning bringing [overwhelming] force to bear on officials of that type in the name of some public good does it have to confront the content issues of which officials, what actual or symbolic force and in the name of what good does the statement labor.

By this point the government is providing a forum for political statements about which it maintains complete neutrality or among which it discriminates. Political speech is inherently public in subject matter; the facilities are owned by the public; and even if the gallery is not open to unrestricted access by the public at large it's presumably open to a specified segment of it selected by the government. I don't see a principled basis for concluding that the forum isn't public.

The problem with that line of reasoning, of course, is that followed to its logical conclusion, classrooms could be public fori and a university would have to decide whether it were going to retain faculty without regard to political opinion, which would require it to make fine distinctions between political and academic matters.
9.21.2005 3:16am
Steve Donohue (mail) (www):
Wow...I never knew that Green Bay, Wisconsin, had enough literates to assemble a college or a newspaper.

Steve Donohue,
Chicago, IL
9.21.2005 12:18pm
Goober (mail):
Harsh, Donohue. Are you really that big a Bears fan / Packers hater?

Brian G gets most of it right but I would caution against calling it a standard of "reasonableness." The non-discrimination principle seems to be doing the actual work there.

As for Mr. Pittelli---I don't think the university has any constitutional obligation to display the picture here, but surely it counsels in favor of expansive protections for political work that many who argue who would disallow it seem to be those who don't get it?
9.21.2005 12:57pm
Redman:
Todd is right. Much of the near hatred of Clinton by some on the right -- and yes, they did hate him -- was on moral grounds or because they thought he was a crook. Bushhatred seems to be based on a conviction that Bush is evil, such as Hitler was evil. Although most certainly a fringe element of the leftists, there are some who are quite up front about their desire that Bush be removed from office with extreme prejudice. I just don't think you ever saw anything like this while Clinton was prez. And, just as the lack of outrage by rank and file Muslims over Al Queda tactics is troubling, the silence of the left as to murder threats made againt Bush leads some to legitimately wonder exactly where they stand.
9.21.2005 1:57pm
Joe Power (mail):
The problem is not whether or not the school should show the artwork nor is it that schools should teach Intelligent Design alongside evolution (and Pastafarianism) nor that schools should be required/forbidden to have Gay-Straight Alliances nor the teaching of contreception in sex-ed nor the teaching of sex-ed period. It seems to me these are merely symptoms of the real problem - the entanglement of government &education.

Please don't dismiss this as just another rant calling for the complete seperation of school &state. What I'm talking about is more along the lines of discussing how much school/state entanglement is desirable and what levels of government (federal, state, local, etc.) are best suited to engage in such interactions.
9.21.2005 2:11pm
Goober (mail):
Todd is right. Much of the near hatred of Clinton by some on the right -- and yes, they did hate him -- was on moral grounds or because they thought he was a crook. Bushhatred seems to be based on a conviction that Bush is evil, such as Hitler was evil.

Jonah Goldberg: "I hate Bill Clinton.... Since when does hating make someone wrong?... I hate Stalin. I hate Hitler. I hate Kim Jong Il, Yasser Arafat, Saddam Hussein, Mumia Abu Jamal, and people who feel the need to be cruel to dogs."

WND: "Hitler, Stalin ... and Clinton? Newspaper poll ranks president second among most evil"

Google: Results 1 - 10 of about 48,400 for "Hitlery". (0.25 seconds)

Although most certainly a fringe element of the leftists, there are some who are quite up front about their desire that Bush be removed from office with extreme prejudice. I just don't think you ever saw anything like this while Clinton was prez.

Sam Marcy: "On Nov. 22, [Jesse] Helms, slated to be the new chair of the Senate Foreign Relations Committee, said Clinton is so unpopular on military bases in North Carolina that 'he better watch out if he comes down here. He'd better have a bodyguard.'"

And, just as the lack of outrage by rank and file Muslims over Al Queda tactics is troubling....

U.S. MUSLIM RELIGIOUS COUNCIL ISSUES FATWA AGAINST TERRORISM (link pdf)

...the silence of the left as to murder threats made againt Bush leads some to legitimately wonder exactly where they stand.

Huh. What say you, oh honorable fortune cookie?
9.21.2005 3:32pm
Brian G (mail) (www):
The reasonableness standard seems to be the trend. Perhpas you are right because the 9 wise old geezers in DC have never clearly enunciated the standard for a limited public forum, whether rational basis or strict scrutiny. However, the real question probably comes down to this: Is this content-based or viewpoint discrimination?

You may also want to consult Hazelwood and its progeny, although the 9 old geezers have yet to say whether that applies to colleges or not. (A few of the lower courts have.
9.21.2005 10:39pm
Paul doson (mail) (www):
Very rightly written article, it arrests the attention of the reader. The subject is outlined with clear understanding and focus.
9.22.2005 8:10am
Goober (mail):
Very rightly written article, it arrests the attention of the reader. The subject is outlined with clear understanding and focus.

Cool! The spam I get on my blog isn't nearly as cryptic or sound like code words from a spy movie.

Brian G: I hadn't thought a limited purpose public forum was that hard to define, although you may be correct. But why does it matter whether it's content- or viewpoint-based discrimination?
9.22.2005 12:57pm