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Rep. Clay and David Pulphus to Appeal Decision Denying First Amendment Rights

April 18, 2017
Press Release
Will ask DC Federal Circuit to Rule on issue of Artistic Expression

WASHINGTON, DC – Rep. Wm. Lacy Clay (D-MO) and St. Louis artist David Pulphus announced today that they plan to appeal a preliminary decision by D.C. Federal Circuit Court Judge John D. Bates rejecting their First Amendment legal claims. The case stemmed from the Architect of the Capitol’s unprecedented removal of David Pulphus’ artwork (“Untitled #1”) from the Cannon Tunnel in the U.S. Capitol Complex.  The artwork was removed in February, following a series of complaints by conservative media outlets and Republican Members of Congress and Leadership.  The Architect had previously approved the hanging of the painting and it was displayed for over six months without incident along with winning entries from other Congressional Districts as part of the annual Congressional Arts Competition. Prior to its removal, several Republican Members of Congress took down the artwork without authorization.

Rep. Clay and Mr. Pulphus issued the following joint, first-person statement in connection with the appeal:

“Our nation was founded on the very principle of freedom of speech, and there are few places where that core freedom warrants greater respect than the U.S. Capitol.  That is why we are confident that the U.S. Court of Appeals will eventually vindicate not only our legal rights, but those of the American people.  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.”

Last Friday, in the case known as Pulphus v. Ayers, the lower court denied the plaintiffs’ request for preliminary injunction relating to the retroactive removal of Mr. Pulphus’ artwork.   In so doing, the court recognized the plaintiffs’ standing to seek relief, and that the artwork was removed because of its viewpoint, which is ordinarily legally protected.  The remaining legal issue concerns whether the display of the artwork -- which was sponsored by Rep. Clay and depicts social injustice following the tragic events in Ferguson -- constitutes “government speech” as the Architect argues, or is a “limited public forum” as has been established in a number of comparable situations.

Rep. Clay and Mr. Pulphus are being represented on a pro bono basis by a distinguished group of attorneys including Leah Tulin of Jenner & Block; James Williams of Chehardy, Sherman, Williams; Kymberly Evanson, of the Pacifica Law Group; as well as two of the nation’s preeminent constitutional law scholars -- Laurence Tribe, the Carl M. Loeb University Professor at Harvard University; and Erwin Chemerinsky, the founding Dean and Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law at the University of California – Irvine School of Law.