[Eugene Volokh] Excluding offensive paintings from the Capitol: Not whether, but who

A painting by David Pulphus hangs in a hallway displaying paintings, by high school students selected by their member of Congress, on Capitol Hill in Washington. (Zach Gibson/Associated Press)

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