Judge rejects effort to reinstall painting in Capitol

WASHINGTON -- A federal judge has rejected efforts to reinstall a painting in the Capitol some lawmakers and police groups found offensive because it depicts police officers with animal heads.

David Pulphus, a student artist from Missouri, and Rep. William Clay, his Democratic congressman, had sued Architect of the Capitol Stephen Ayers for removing the painting in January. They sought a preliminary injunction to have the painting restored as the lawsuit proceeds, but the judge denied their motion.

On Tuesday, Clay and Pulphus said they would appeal the judge's ruling.

"We believe our Constitution simply cannot tolerate a situation where artwork can be removed from the Capitol for the first time ever as a result of a series of ideologically and politically driven complaints," they said in a statement.

The painting depicts events in Ferguson, Missouri, after a white police officer shot and killed unarmed black teenager Michael Brown in 2014.

The painting shows two police officers with guns drawn facing a young man as protesters look on. The officers are shown with the heads of pigs. The young man has the head of a wolf and a long tail. The protesters hold signs saying "Racism Kills," "Stop Killing" and "History."

In a ruling dated Friday, U.S. District Judge John D. Bates said the government used its editorial discretion in the selection and presentation of the art. As a result, it was engaging in "government speech" and the plaintiffs have no First Amendment right to display the painting at the Capitol.

The First Amendment limits government regulation of private speech, but it does not restrict the government when it speaks for itself.

Bates said he was "sympathetic" to Pulphus and Clay given how the artwork was treated, but he concluded they were unlikely to succeed on the merits of their arguments. He also noted all of the paintings in this year's arts competition are to be taken down May 1, less than two weeks away.

Clay and Pulphus had sought a preliminary injunction to have the painting restored to the tunnel that connects the Capitol to a House office building. That's where hundreds of winning paintings in an annual Congressional Art Competition are hung.

Ayers had determined the artwork didn't comply with the House Office Building Commission's prohibitions for the Congressional Arts Competition. The rules of the competition prohibit artworks "depicting subjects of contemporary political controversy" or those of a "sensationalistic or gruesome nature."

Ayers made the determination after Rep. Dave Reichert, R-Wash., a former sheriff, asked him to remove the artwork, calling it a "slap in the face" to those officers who put their lives on the line to provide safety and freedom.

The painting had hung from early June to late December before conservative media outlets and lawmakers began to weigh in. Soon, Rep. Duncan Hunter, R-Calif., removed it on his own. Clay put it back up, and the scenario was repeated when two other lawmakers also removed the painting.