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Friday, September 9, 2011

ART ON TRIAL: CASE 11





The Issue: Satire and Political Commentary
The Issue: Civil Liability for Public Officials

The visual arts have long been a medium of political and social commentary. Included in this history is the satirical and often caustic depiction of public officials. As the U.S. Supreme Court has noted, "the appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events--an exploration often calculated to injure the feelings of the subject of the portrayal." Such depictions can equally injure the feelings of those who hold the subject of the portrayal in high esteem. The Supreme Court has nonetheless held that "from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate" and, as such, receive the full protection of the First Amendment.

Under federal law, when a public official acts using his official authority ("under color of law") and violates an individual's constitutional rights, that individual may sue the official for monetary damages. Hence, a public official who fails to recognize that the First Amendment protects even caustic works of satire does so at risk of financial liability In order to succeed in the lawsuit however, it must be shown that, at the time of the public official's action, the law was clear that the action was unconstitutional. In other words, even if the court finds the action unconstitutional in the case before it, the official enjoys legal immunity for his action because earlier cases did not clearly establish that his action would be deemed unconstitutional.

The Case: Nelson v. Streeter

In May 1998, David Nelson, a student at the School of Art Institute of Chicago, submitted one of his paintings in the school's annual competition. Entitled "Mirth and Girth," the painting depicted recently deceased Chicago Mayor Harold Washington wearing women's lingerie. When word of the painting reached Chicago City Council, three of the Council's aldermen went to the Art Institute, took the painting from where it was displayed, and attempted to remove it from the campus. Stopped by a school official, the aldermen were diverted to the office of the school's president. By the time the painting arrived in the president's office, it had a one-foot gash in the canvas. Upon receiving a phone call from a fourth alderman, Chicago's police superintendent ordered that the painting be taken into custody whereupon a policeman, accompanied by the three aldermen at the school, carried the painting to a police car and removed it from campus. David Nelson filed suit against the aldermen alleging their actions violated his First Amendment rights. When the trial court denied the aldermen's claim of official immunity, they appealed. Citing the long history of the visual arts as a medium for political and social commentary, the Court of Appeals for the Seventh Circuit held that the aldermen's action of going onto private property to seize a painting simply because they found it offensive was a violation of the First Amendment. The defense of official immunity was therefore denied and the case was sent back to lower court for trial. In 1994 the City of Chicago settled the lawsuit by agreeing to pay $95,000 in attorney's fees to Nelson's lawyer.

http://www.tjcenter.org/ArtOnTrial/officials.html
Mirth and Girth
(painting)
by
David Nelson

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