On March 4, 2003, the City of Pasco apologizes to artists Sharon Rupp and Janette Hopper, the culmination of lawsuit brought by the artists after their works submitted for display at Pasco City Hall are censored because of public complaints about their content. Defended by the American Civil Liberties Union (ACLU), the artists had contended that their First Amendment rights had been violated. A federal appeals court sides with the artists, writing, "The mere fact that the works caused controversy is, of course, patently insufficient to justify their suppression" (Justia, February 15, 2001). In addition to apologizing for its actions, the City of Pasco pays $75,000 to cover the plaintiffs' legal fees.
A Case Study
When officials in Pasco opened a gallery for art displays, they envisioned showing pastoral landscapes and pleasing scenes. What they got instead was a major public controversy and a landmark legal case about art censorship. Or as a federal appeals court called it, "a case study in the politics and law of public art" (Justia, February 15, 2001).
In 1995 the City of Pasco launched a program to display artworks at its City Hall, a newly renovated former high school. The project was the brainchild of Pasco Assistant City Manager Kurt Luhrs, who thought art would enhance the building's barren expanses of walls. The Mid-Columbia Arts Council was to provide works by local artists to be exhibited for three months at a time. Pasco City Manager Gary Crutchfield paid for the program with discretionary funds, planning to seek permanent support from the city council after a year. But as an old adage has it, the road to perdition is paved with good intentions.
For the program's third quarter, two women were invited to exhibit their art. Sculptor Sharon Rupp's submissions included a satirical bronze sculpture titled "To the Democrats, Republicans, and Bipartisans," which featured a woman with her head stuck in a wall and her backside exposed – in effect, mooning the viewer. Her works were displayed at City Hall for only a week before city officials ordered them removed. Rupp was informed that the action came because of the works' sexual nature, because the city had received a complaint about them, and because displaying her sculpture would make the exhibition "political."
Visual artist Janette Hopper submitted black-and-white linoleum prints depicting a naked Adam and Eve touring German landmarks. But Pasco officials prevented the Arts Council from hanging the pieces. Hopper was told that the works were considered "sexual" and "sensual," and officials worried they might generate complaints from a local anti-pornography crusader.
The two artists were incensed, feeling their artwork had been censored. The American Civil Liberties Union of Washington (ACLU) took up their cause and filed suit (Hopper v. City of Pasco) in federal court on the artists' behalf, with attorneys Paul Lawrence and Dan Poliak handling the case. Pasco officials resisted the suit, asserting that the works had violated a "non-controversy" policy for the arts program. The nudity had upset some citizens and civic employees. The city manager contended that excluding the artists' work was not an act of censorship, as they were free to display it elsewhere in town.
The ACLU countered that the city's administration of the program was so inconsistent and arbitrary that it violated First Amendment rights. Some works selected earlier included nudity, and one, featuring an emaciated man, had drawn complaints. Yet those works had remained up.
Legally, the matter turned on case law about the nature of the venue where the artwork was shown. The City of Pasco contended that its arts program had established a "limited public forum," under which the standard for evaluating censorship was the "reasonableness" of its actions. U.S. District Court Judge Fred Van Sickle agreed and threw out the suit in 1998. The judge said, "... the case boils down to a matter of taste and perception." He found the City's decision to exclude the artwork reasonable given the controversy it provoked. He noted that "bare rumps and cavorting nude couples are not family fare" ("No Supreme Court ...").
Overturned on Appeal
The artists took the case to the 9th Circuit Court of Appeals, which accepted the ACLU's characterization of the venue as a "designated public forum." This required that the City of Pasco's actions be subjected to "strict scrutiny" and serve a "compelling public interest." Under that standard, the appeals court in 2001 reversed the lower court, finding that the City of Pasco had violated the artists' rights to freedom of expression. Writing for the 2-1 majority, Judge Margaret McKeown said, "We do not endorse Pasco's cramped view of what constitutes censorship, and we find none of the city's reasons for excluding the artwork compelling" (Justia, February 15, 2002).
A key consideration was the city's failure to establish a review process or specify criteria for the selection of public art. City manager Crutchfield had expressed concern that any controversy generated by artwork could torpedo the program, given Pasco's conservative climate (Justia, February 15, 2001). The 1990s, after all, were a decade marked by high-profile conflicts over public art, notably photographs by Robert Mapplethorpe in Cincinnati and policies of the National Endowment for the Arts. But the city manager had left it to the Middle-Columbia Arts Council to select art which would not provoke controversy, while the Arts Council claimed that it assumed the city manager would review its selections.
The appeals court ruling agreed with the ACLU that the city's non-controversy policy in practice was no policy at all, calling it a "standardless standard." Getting to the heart of the matter, the court said, "The mere fact that the works caused controversy is, of course, patently insufficient to justify their suppression" (Justia, February 15, 2001).
The U.S. Supreme Court declined to review the ruling. Pasco and the artists reached a settlement in 2003. The city apologized to the artists for censoring their work and paid $75,000 in legal fees and costs to their lawyers.
The case set a precedent for the handling of public art displays and was cited in cases around the country. "That gives me pleasure that we have made things better for other artists," Rupp said ("Pasco Apologizes ..."). The city terminated the public-art program soon after the controversy arose. As for the sculpture that helped spark the conflict, Rupp gave it to her attorney, Paul Lawrence.