by Mark Wilson

A Washington federal court denied state officials’ summary judgment on a claim that they violated a Native American prisoner’s First Amendment rights by prematurely removing his paintings from an art exhibit due to public criticism. The court also denied defendants’ qualified immunity.

Leonard Peltier has served more than 40 years in prison for murdering two FBI agents. He became a renowned painter during his confinement, and his son manages an art gallery featuring his paintings.

In November 2015, Washington State Department of Labor & Industries (L&I) officials held a month-long art exhibit at one L&I office, to commemorate Native American heritage month.

After discussing the risk of controversy, L&I officials chose to display some of Peltier’s paintings during the exhibit.

Peltier’s son loaned L&I four paintings, which were displayed in the L&I building rotunda. L&I also featured Peltier in event promotional materials, encouraging the public to “come see art by the renowned Native American artist Leonard Peltier,” and providing a link to his website.

Soon after exhibiting Peltier’s art, L&I received at least three complaints from people who were upset that it was promoting an artist who was convicted of murdering two FBI agents. Two of those complaints came from former FBI agents. L&I responded to the criticism by removing Peltier’s paintings, two weeks into the month-long exhibit.

Peltier brought federal suit, alleging that the painting removal violated the First Amendment to the U.S. Constitution. Defendants moved for summary judgment.

The district court first rejected Defendants’ argument that the exhibit was L&I’s government speech, not Peltier’s private speech and, therefore, he did not have a First Amendment right. “L&I provided a forum for groups and individuals to exercise private speech,” the court found. “The Native American Heritage Month celebration was therefore not government speech.”

The court also rejected Defendants’ argument that the event was for L&I employees, not the general public. “The Native American heritage month event was a public forum designated for the celebration, education, and discussion of Native American heritage,” the court found. As such, “L&I needed a compelling government interest to remove Peltier’s paintings.” Citing Cornelius v. NAACP Legal Def & Educ. Fund, 473 U.S. 788, 811, 105 S.Ct. 3439 (1985), the Court instructed that “appeasing those who disapprove of a speaker, or diffusing a controversy, are not compelling government interests.”

“The mere fact that the artwork causes controversy is, of course, patently insufficient to justify its suppression,” the court observed. “Removing Peltier’s paintings was not reasonable in light of the forum’s purpose, and thus not permissible.” As such, the evidence supported “the inference that Defendants violated his First Amendment rights.”

The court also rejected Defendants’ argument that they were entitled to qualified immunity because the violation was not clearly established. “A reasonable director of a state agency, and public affairs manager, respectively, would have known that removing art based solely on certain individuals’ disapproval of a speaker’s identity violated well-established First Amendment principles,” the court held. “Accordingly, Defendants are not entitled to qualified immunity.” See: Peltier v. Sacks, USDC No. 3:17-cv-05209-RBL (W.D. Wa. 2018).

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