Art in the Courtroom: Dealing with New Deal-era Murals – Part I

November 15, 2018

By Olivia Taylor.

Fans of Parks and Recreation may remember an episode which revolves around a 1930’s mural painted on the walls of Pawnee City Hall. In the show, the mural was vandalized by offended citizens because it depicted racist scenes from U.S. history. In response to the public’s unease, the town renamed the mural and wrote a statement instructing viewers that they should consider the piece as both historically important and artistic, yet horrifying and shameful.

While re-contextualizing controversial historical art apparently makes for good social/comedic commentary, it is also a real phenomenon that has confronted public art in the recent years. This narrative hit home when it was discovered that Simka Simkhovitch, artist and great grandfather to the author, painted a courthouse mural in Jackson, Mississippi in 1937, which later became controversial. The story of Simka’s mural will serve as a microcosm for the legal issues surrounding controversial public art in a two-part article series. The aim of this series is first, to discuss whether displaying or hiding controversial murals is legal under the First Amendment and second, to analyze if re-contextualizing the work is legal under Copyright Law, since it seems that re-contextualizing historic and controversial art is the best way to preserve it.

The Background

Throughout its history, the U.S. government has employed artists to create works for public spaces such as sculptures, monuments, and murals. The most notable legal precedent is perhaps Richard Serra’s Tilted Arc, while the largest-scale example of government employment for artists is perhaps the Federal Art Project under the New Deal program. Painter Simka Simkhovitch was one such government employee. Born in 1885 in Novozybkov, Russia to a Jewish family, Simka left Russia in 1924 to escape escalating political tension and to pursue a career in art in America. By 1936, The Section of Fine Arts, Department of the Treasury awarded Simka one of these government jobs with the instructions to paint a mural depicting everyday scenes of Mississippi life on the wall of the Jackson Federal Courthouse.^[i] Having barely lived more than 10 years in the northeast of America when he received the commission, Simka painted what he thought was typical of Jackson. His impression of pre-civil rights Mississippi was evidently Greek Revival column houses, weeping willow trees, working class families, and the oppression of African Americans. He painted African American men picking cotton, while a white man took account of the harvest and a white judge advised a white family, calling it Pursuits of Life in Mississippi.

Though clearly endorsed by the government and initially generally well-received, the mural soon raised concerns with locals as the climate toward racial segregation began to change. The main concern was whether depictions that show African Americans in subjugated societal roles should be featured in a courtroom. Cases started appearing in court both nationwide and in Jackson to dispel the same racism that remained depicted on the courthouse’s very walls, as if the mural was perpetuating the injustice itself.^[ii] In the 1940’s, the National Association for the Advancement of Colored People (NAACP)’s black lawyers argued for equal black teacher salaries, undoubtedly unable to ignore the mural every time they were to address the judge.^[iii] Debate on the mural came to a head in 1971 when a civil rights attorney fought to have it removed and again in 1976 when Fifth Circuit Judge John C. Godbold ordered that the mural be covered before he would sit in the courtroom.^[iv] By the time Henry Wingate, the first African American judge in Jackson, was appointed in 1985, the mural had been long been since hidden with a large curtain for years. The mural then stayed that way until the early 2010’s when it was recognized as an important part of America’s historical record. While hiding the work was justified during those years so that important change could be adopted, the question beckons: is the artwork still culpable today for honestly capturing the past? Furthermore, when the government veiled the mural, was it engaging in censorship of art?

Assuming that when Simka painted the mural he had no other purpose but to to be objective, and because times have thankfully changed, the art should now be uncovered. At the heart of this conviction is the question of how much an artist’s intention in making a work defines that work. There is no indication that Simka’s intent was to propagate racism. From that standpoint, there is no moral argument for condemning the artist or his work. In fact, a prominent dealer of Simka’s works argued in a letter to a Federal Judge in Jackson that his depiction of African Americans integrated with white people in this mural, and other works by him [image below], could be considered a push for racial equality back then. Indeed, existing documents on the work indicate Simka was purely interested in objectively conveying the city; he was once quoted saying, “to my students I emphasize the American scene as it presents itself in daily life.”^[v]The time elapsed since the creation of the work makes investigating Simka’s intent more difficult, however, historical accounts of life then seem to lend credence to the truth of his mural’s images.

Simka’s mural is not the first historical mural to take an ambiguous position on controversial events. A few years earlier in 1932, Diego Rivera painted the Detroit Industry Murals in Michigan for the Detroit Institute of Art. Also born outside of the United States, Mexican artist Rivera depicted the recently mass-industrialized U.S. workforce from just a short period of observing Ford Factories in the area. Originally vehemently contested as marxist at their unveiling, the murals were declared National Historic Landmarks in 2014. Similarly, The Genius of America [image below] mural by Adolphe Yvon was covered in Chancellor’s Hall at the State Education Building in Albany for the last decade due to controversy over the African American man in the corner. Is he being pulled up or held down? The interpretation of the artist’s intent for that scene could change the perception of the mural completely. Is it best to leave these works uncovered so that the public can decide their message for themselves? Truthfully, with many of these works, it will probably never be entirely clear what the artist’s intent was.

Given this difficulty, a grain of salt must preface the forthcoming argument that the mural is considered “speech” under the First Amendment. While art is generally considered “speech” in the legal sense, it is often debatable not only what point is being made, but also by whom. If the government commissioned the work and gave instructions on its content, then perhaps it is their speech and the artist’s work is just the medium for it. To complicate matters further, the content may be separable from the “speech” of the work itself, especially with abstract art. Take Brancusi’s Bird in Space sculpture, which if not for its title, would arguably be unable to communicate speech about a bird at all. Despite this enigma, art continues to be recognized simply just as “speech” by the Second Circuit, and as New York City Mayor Rudolph Giuliani stated in the Brooklyn Institute of Arts and Sciences v. City of New York case,^[vi]“the communicative power of visual art is not a basis for restricting it but rather the very reason it is protected by the First Amendment.”^[vii]

That said, there are instances where both the artist’s intent and the subject matter of the art align to communicate offensive speech. If the majority of the public and government agree that this alignment is clearly in the work, then the removal of the artwork has traction. For example, in 2017 the monument of Confederate General Robert E. Lee in New Orleans was taken down by the city and supported by many members of the public. Those who supported taking down the statue all agreed that this statue was not intended to be an objective portrait, but rather a symbol promoting a future racial inequality.^[viii]Even so, others in New Orleans protested the removal, making it evident that a complete consensus regarding the meaning of historical art might never be possible. If members of the public are entitled to speak for or against such removal, and there is a dispute regarding the future of the contested work, is there a legal recourse for either side?

Freedom of Speech Argument

There is no clear legal route for either party, even with a wealth of case law on the subject. The commissioned work is the government’s property, not the artist’s – which will be discussed later in the upcoming Part II of this article series. In regards to the First Amendment though, this means that the work is considered the government’s “speech” instead of the artist’s. Just as there is a First Amendment protecting the speech of an American citizen from government censorship, the government has a Government Free Speech Doctrine which delineates rights for itself as well.^[ix] Being as such, the government is legally free to do with the mural as they please, meaning they can show it, or not show it. Covering the mural is thus not considered censorship, or illegal, because it is the government’s own protected “speech”.

Hypothetically, if the mural was not the government’s property, the art might be protected under the First Amendment as the artist’s “speech”. The government may not censor citizen’s speech, meaning, even if people protest to the controversial mural, the government must maintain ‘content neutrality.’^[x]Furthermore, the Amendment precludes taking down the mural unless it is considered a direct and imminent threat to the citizens; even though works depicting racism may be offensive, courts would likely not consider this offense a “direct and imminent threat” given a record of case law demonstrating a liberal protection of the First Amendment – even in examples with extreme racism such as in Brandenburg v. Ohio where a KKK member rally was ruled as lawful free speech.^[xi]

If it seems odd that Simka’s mural is entirely government speech rather than his own, there is hope for a third type of “speech”. This hybrid recognizes speech containing aspects of government speech and aspects of private speech. First recognized in the Fourth Circuit in 2004, several courts have since adopted it, but it warns of a slippery slope to over-restricting the government’s speech rights. Courts seem to be concerned with this notion, instead categorizing the speech as simply one or the other; just this last September a federal Judge denied injunctive relief to St. Louis artist David Pulphus for the removal of his controversial mural depicting a police officer pointing a gun at a black man [image above]. Chosen for display in the U.S. Capitol Building in D.C. through a High School contest, the mural is argued on appeal by the artist to be speech in a limited nonpublic forum, rather than government speech simply by appearing on a wall of a Capitol building.^[xii][xiii]

So, how can one tell if the speech is the government’s or the artist’s? Newton v. LePage, a 2012 case regarding the removal of a mural by Judith Taylor in Maine, provides some clarity by delineating two important criteria for whose speech a work communicates.^[xiv]The first is whether the government exercised a high degree of control over the message conveyed in the work. The second is “whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land.”^[xv]

Applying the first criteria to Simka’s mural: the letter from Simka’s Estate Representative sent in 1987 indicates that the government oversaw Simka’s preliminary sketches and approved his description of the mural as well. As for the second criteria: because of the position of Pursuits of Life in Mississippi, located directly over the federal seal in the courthouse, the mural would probably be interpreted as government speech first. Thus again, in Simka’s case, the expressive activity of showing the mural—and conversely the expressive activity of removing the mural—was legal government “speech” because the mural was the government’s speech to begin with.

The Choice Of The Government

So theoretically, the government could respond to their own controversial art by hiding, selling, or even destroying it. This expansive freedom led “Art Attack” art podcast speakers Lizy Dastin and Justin BUA to question exactly how far the [US] government could push this liberty. Hypothetically, could a government led by one party choose to take down every public statue of a figure from another party using taxpayers dollars to do so? In Simka’s case, could authorities paint over the mural with no notice? The legal answer to all the above seems to be yes, they could. Furthermore, if the public opposed the government whitewashing the mural, or taking down the statues, their options for recourse are slim. The public could fight against the government’s choice only by creating more speech against it. While perhaps not a particularly forceful or immediate strategy, the First Amendment allows people’s opinions to be heard when acting through the law to effect change directly is not possible.

However, should there be a more direct legal avenue for preventing the destruction of historical artworks? Public protesting can take years to effect change and in the meantime,  irreversible damage can be done. Although unprecedented in the United States, one could imagine the extreme example of the unchecked destruction of “degenerate” artworks by the Nazi regime. The threat of how quickly work can be destroyed is a realistic concern. Jim Woodrick, the Deputy State Historic Preservation Officer for Mississippi, commented upon why an intermediary action, such as covering the work rather than destroying it, was appreciated in retrospect. Regarding painting over the Simka mural he states, “I think in the 1960s it was covered with a curtain because it was in a courtroom, and obviously something like [covering it] could be done again. But to permanently cover over it would be to cover over history from that time period.”^[xvi]So what will happen to the mural now? A trip to Jackson, Mississippi in October uncovered details of the plan for Simka’s work in the near future.

Around 2013 the state sold the courthouse to developer Jason Goree, who had plans to turn it into an apartment complex. Although it has changed hands since, construction for the same purpose is now scheduled for 2019. Before the sale, the General Services Administration placed the building and the mural under a historic preservation easement, which provides one example of how the law can restrict the government’s right to free speech. An easement is a legal agreement between the owner of historically significant property and a qualified preservation organization, which prevents the work from being destroyed.^[xvii]According to Staff Officer Barry White of the Historic Preservation Staff of the State of Mississippi, in Simka’s case, the government (the owner of the property) entered into an agreement with the Southern Institute of Fine Arts. The likelihood of future easements being granted for government murals like Simka’s is seemingly dependent solely upon the individuals in government that are the position to make these decisions. This seems like a precarious dependency, but to date thousands of easements have been created to protect historic property.^[xviii]Thus, an easement is one way for the government to demonstrate to the public its good intentions for preserving an artwork.

With a new owner in the picture, is a preservation easement the final word in protecting historical art? Not exactly. An easement is a “highly flexible tool” that should be specified for each property it purports to protect due to the complex nature of preserving these properties. For example, in Simka’s case, it was relevant to stipulate in Article C that the mural remain accessible to the public for viewing. Furthermore, while easements are generally drafted to preserve the property in perpetuity, the easement itself can later be changed. The conditions for its alteration are narrow and require approval from the party granting the easement, but there is “the potential for amendment to improperly dilute the protection afforded by the restrictions”. Finally, even with a comprehensive written easement, “‘the real work with conservation easements, [however] begins after the signature ink is dry. Even the best written easements are only as good as the holder’s resolve and capacity over the longterm to monitor, enforce, and defend them.’ “^[xix]

There is one last option the government can choose. Instead of destroying, hiding, or displaying the mural, the government could also keep the work on display, but choose to re-contextualize it as they did in the Parks and Recreation episode. This route has been favored so far for several instances of recently uncovered controversial historical art. The second article about Simka’s mural will discuss the merits and legal parameters of informing the public about the context of art and cultural artifacts on display. Furthermore, it will answer the question: What actions can future occupants of the building housing Simka’s mural take if they find the mural offensive?

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^[i] For more information about the context of Simka’s mural award in the history of Jackson, see Patti Carr Black, Art in Mississippi: 1720-1980, Jackson (Miss.): University Press of Mississippi, 1998, pg. 190.

^[ii] See e.g. Shinall v. State, 199 So. 2d 251 (Miss. 1967).

^[iii] Judith Resnick, and Dennis E. Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, New Haven: Yale University Press, (2011), p.113-16.

^[iv] Biloxi Sun Herald, “Mural flap/ridicuous but juicy”, (October 3, 1976), available at https://newspaperarchive.com/other-articles-clipping-oct-03-1976-42933/.

^[v] J. Woodrick, “Simka Simkovitch’s Mural”, And Speaking of Which (May 13, 2014), available at http://andspeakingofwhich.blogspot.com/2014/05/simka-simkhovitchs-mural.html

^[vi] Brooklyn Institute of Arts and Sciences v. City of New York, 64 F. Supp. 2d 184, 185 (E.D.N.Y. 1999).

^[vii] J. Merryman, A. Elsen, and S. Urice, Law, Ethics and the Visual Arts, Kluwer Law International, (2007), p.470.

^[viii] Tegan Wendland, With Lee Statue’s Removal, Another Battle Of New Orleans Comes To A Close, NPA, (May 20 9:31am 2017), available at https://www.npr.org/2017/05/20/529232823/with-lee-statues-removal-another-battle-of-new-orleans-comes-to-a-close

^[ix] The Art Law Podcast, Art, Censorship and the First Amendment (July 2, 2018).

^[x] For further readings: ACLU, “Freedom of Expression in the Arts and Entertainment”, No. 14, available at https://www.aclu.org/other/freedom-expression-arts-and-entertainment.

^[xi] Brandenburg v. Ohio, 395 U.S. 444 (1968).

^[xii] For further readings: First Amendment Schools, available at http://www.firstamendmentschools.org/freedoms/faq.aspx?id=13012

^[xiii] Britain Eakin, Art Censorship at Capitol Fought at DC Circuit, Courthouse News Service (Sept. 28th 2018), available at https://www.courthousenews.com/art-censorship-at-capitol-fought-at-dc-circuit/

^[xiv] Newton v. LePage, 849 F. Supp. 2d 82, 123-24 (D. Me. 2012).

^[xv] Id.

^[xvi] “Hidden Mural Uncovered At Old Federal Courthouse”, WAPT (Oct. 14, 2011), available at https://www.wapt.com/article/hidden-mural-uncovered-at-old-federal-courthouse/2076793

^[xvii] Jess R. Phelps, “Preservting Perpetuity?: Exploring the Challenges of Perpetual Preservation in an Ever-Changing World, 43 Envtl. L. 941 (2013).

^[xviii] Id.

^[xix] Id.

About the author: Olivia Taylor (BA 2018), is the 2018 Fall Intern with the Center for Art Law. She graduated from Colgate University with a double major in Philosophy and German. She plans to attend law school in the Fall of 2019 and can be reached at otaylor@colgate.edu.