Constitutional Law
May 30, 2001
Standardless Standard
The Hopper case most likely will cause municipalities with city hall public art exhibits to re-evaluate their selection policies.
Americans are no strangers to controversy over museum art exhibits. More than a decade ago, for example, the Contemporary Arts Center in Cincinnati and its curator were tried and acquitted on obscenity charges related to an exhibit of Robert Mapplethorpe's photography (an incident comprehensively described in Edward de Grazia's "Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius" (1993)).
More recently, the Brooklyn Museum successfully resisted an eviction and de-funding attempt by city of New York Mayor Rudolph Giuliani, which was prompted by an exhibit that included a Virgin Mary painting composed of elephant dung and other materials. Brooklyn Institute of Arts v. City of New York, 64 F. Supp.2d 184 (E.D.N.Y. 1999).
Perhaps surprisingly, controversy over public art exhibits in government buildings generally has not garnered national attention or resulted in litigation. For this reason, the case of Hopper v. City of Pasco, 241 F.3d 1067 (9th Cir. 2001), represents something of a landmark.
In Hopper, the 9th U.S. Circuit Court of Appeals held that Pasco (a Washington city) violated the First Amendment rights of two artists by excluding their artwork from a public art exhibit in its city hall building.
The Hopper case arose in 1994, when Pasco remodeled an abandoned school building to create a new city hall. Pasco's city manager and his administrative assistant then contracted with the Arts Council of the Mid-Columbia Region, a local artists' association, to administer a program for the exhibition of public art inside the building. According to the agreement, each quarter, the Arts Council would make arrangements to exhibit artwork, provide hanging supplies, design and mount the exhibit, publish and mail a flyer to announce the exhibit and issue press notices.
Because the initial funding for the arts program came from a discretionary account for city hall maintenance, Pasco's administrators were determined to avoid controversy in order to obtain permanent funding from the Pasco City Council. In a letter to the Arts Council, the administrative assistant expressed concern about "having various citizens with a conservative 'bent' raise issues that have caused trouble for the National Endowment for the Arts, i.e., offensive or politically motivated art." The Arts Council quoted this cautionary statement in its initial notice announcing the arts program and inviting solicitations.
In practice, Pasco's arts program operated without any pre-screening process to monitor quality, content or controversy. Pasco's administrators provided no further definition or guidance as to what kind of artwork would be considered inappropriate, and the Arts Council did not reject any artwork that was submitted for exhibition.
The first two exhibits at Pasco City Hall were well received, but one piece, referred to alternatively as "After the Famine" and "Starving Man," did provoke controversy. Located in front of the Housing and Support Services Office, the piece consisted of a large sculpture of an emaciated, "dark complected" man. One employee of that office complained that the sculpture "didn't send a good message." Other people saw racial and gender issues or simply did not think it was "art." Despite the objections, the sculpture remained for the full length of the exhibit.
The Hopper case arose from the refusal to display artwork by two artists, Sharon Rupp and Janette Hopper, who had been independently solicited by the Arts Council for the third exhibit at Pasco City Hall. Rupp agreed to show three bronze sculptures, one of which (titled "To the Democrats, Republicans and Bipartisans") depicted a large, nude, headless woman with her backside facing the viewer.
This piece aroused complaints soon after the display began on the main floor of the building. Some people viewed the sculpture as showing the woman in a "sexual position" or as showing a "sexual act." Others considered it "offensive and disgusting" or "derogatory to women." Although Rupp's pieces were to be displayed for only a single week, Pasco's administrators ordered the Arts Council to remove all three prior to the end of that period.
Hopper agreed to show a series of 10 linoleum prints (titled "Adam and Eve") of a naked couple (in silhouette and outline form) in a variety of landscapes and scenes from post-World War II Germany. None of the prints depicted explicit sexual activity, but the couple kissed in two and embraced in several.
At the time she was contacted about showing her work, Hopper informed an Arts Council representative that her prints contained nudity. The representative assured her that nudity would not be a problem, given that previous exhibitions had contained nudity.
After Hopper delivered the prints, the administrative assistant determined that some were potentially controversial or political because the couple was depicted nude in public, and public nudity is illegal in Pasco. He then polled several city hall employees, who found some of the prints "offensive" and "sexually suggestive." Based on these assessments, Pasco's administrators decided that none of the prints would be displayed. Shortly afterwards, they terminated the arts program altogether.
Rupp and Hopper sued Pasco on the basis that their First Amendment rights had been violated. At the trial level, the District Court granted summary judgment in favor of Pasco. The court determined that the city hall gallery was a "nonpublic forum" and that Pasco's failure to screen the artwork did not negate the city's expressed desire to limit the gallery to noncontroversial works.
On appeal, the 9th Circuit reversed the trial judgment and granted the plaintiffs partial summary judgment. The court reasoned that the city hall gallery was a "designated public forum" because Pasco's "so-called policy of noncontroversy became no policy at all because it was not consistently enforced and because it lacked any definite standards."
The court then concluded that Pasco failed to present a compelling governmental interest for excluding the plaintiffs' artworks and that Pasco's standard for disapproval of exhibition works ("controversialness") was not sufficiently narrowly tailored to limit the city's discretion.
The 9th Circuit remanded the case for resolution of the issue of Pasco's liability, an issue that will depend on a showing that either the city manager was a final policy-maker with respect to the arts program or that the Pasco City Council ratified his decision to exclude the artworks.
The Hopper case is consistent with the only other recently published decision addressing the extent to which the First Amendment confers a right to participate in a city hall public art exhibit. In Henderson v. City of Murfreesboro, 960 F. Supp. 1292 (M.D. Tenn. 1997), the District Court found the First Amendment to be violated by the removal, from a city hall rotunda, of a painting that had been solicited by city officials and displayed until it prompted a sexual harassment complaint due to the partial nudity shown.
While Hopper unquestionably addresses significant constitutional questions, it is important to appreciate the issues not presented by the case. The plaintiffs and Pasco agreed that the subject artworks were neither obscene nor pornographic (indeed, two of the excluded prints by Hopper were on display at the Portland Art Museum). Thus, the 9th Circuit was not required to analyze the extent to which the First Amendment restricts government authority to ban obscene or pornographic artworks from a city hall public art exhibit.
Additionally, precisely because the case involved a city hall public art exhibit, the court did not have to re-examine the extent to which the First Amendment limits local authority to regulate expressive activity in a traditional public forum, such as a public street or park.
The primary impact of the Hopper decision most likely will be to cause municipalities with city hall public art exhibits to re-evaluate their selection policy and practice for such programs. The case establishes the principle that such programs must be administered in accordance with a clearly articulated and consistently enforced selection policy.
On this point, the 9th Circuit explained: "[W]hile Pasco may have blundered into the controversy that ended its arts program, it could have avoided this problem by establishing and enforcing a clearly articulated policy that would pass First Amendment muster ... [O]ur analysis in no way precludes such city programs administered in a consistent and clearly articulated manner."
Fortunately, the Hopper decision leaves local governments wide latitude to develop a selection policy for their city hall public art exhibits. On one hand, the case requires that a pre-screening standard be more than simply a ban on "controversial" or "offensive or politically motivated" art, because such criteria are "intrinsically flawed."
On the other hand, the case confirms that a pre-screening standard can be based on community standards of decency, among other criteria. As to this issue, the 9th Circuit emphasized: "This is not to say that community standards of decency have no place in the regulation of government property; our cases merely insist that such standards be reduced to objective criteria set out in advance."
Terence Boga is an associate in the Los Angeles office of Richards, Watson & Gershon. He specializes in municipal law and First Amendment law.
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