United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2004 Decided July 5, 2005
No. 03-7195
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.,
APPELLEE
v.
ANTHONY GITTENS,
EXECUTIVE DIRECTOR, DISTRICT OF COLUMBIA COMMISSION
ON THE
ARTS AND HUMANITIES, AND DISTRICT OF COLUMBIA,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(02-cv00984)
Donna M. Murasky, Senior Litigation Counsel, Office of
the Attorney General for the District of Columbia, argued the
cause for appellants. With her on the briefs were Robert J.
Spagnoletti, Attorney General, and Edward E. Schwab, Deputy
Attorney General.
Arthur B. Spitzer argued the cause for appellee. With him
on the brief was Fritz Mulhauser.
Before: GINSBURG , Chief Judge; RANDOLPH and ROGERS,
Circuit Judges.
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Opinion for the Court filed by Circuit Judge RANDOLPH.
Concurring opinion filed by Circuit Judge ROGERS.
RANDOLPH, Circuit Judge: We remanded the record
because it was uncertain whether the First Amendment issue in
this case was moot. 396 F.3d 416 (D.C. Cir. 2005). On remand,
the district court ruled that its $4,000 award to the People for the
Ethical Treatment of Animals, Inc. -- PETA -- represented
damages for the District of Columbia’s violation of PETA’s
First Amendment rights. The damage award saves the
constitutional issue from mootness. See, e.g., Powell v.
McCormack, 395 U.S. 486, 497-98 (1969). We will therefore
proceed to the merits.
I.
The following recitation of facts is drawn from our earlier
opinion. In the fall of 2001, the District’s Commission on the
Arts and Humanities issued a “Call to Artists” for “Party
Animals,” a program intended to showcase local artists, attract
tourists and enliven the streets “with creative, humorous art.”
“Party Animals” would be the “largest public art project in the
history of the District of Columbia.” It would consist of pre-
formed sculptures of 100 donkeys and 100 elephants, four and
one-half feet tall and five feet long, installed at prominent city,
federal and private locations. The Commission invited artists to
submit designs for painting and decorating the models. If the
Commission’s selection committee approved the design, the
artist would receive a $1,000 honorarium and $200 for materials
and supplies. The Commission retained ownership of the
decorated donkeys and elephants and planned to sell them at
auction after the exhibit ended.
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The written announcement stated that “Party Animals”
would showcase the “whimsical and imaginative side of the
Nation’s Capital” and that the Commission was looking “for
artwork that is dynamic and invites discovery,” “original and
creative,” “durable” and “safe.” The Commission would not
“allow direct advertising of any product, service, a company
name, or social disrespect,” and would impose “restrictions
against slogans and inappropriate images.” All designs were
“subject to the Selection Committee’s decision.” More than
1,000 artists entered designs, most of which the Selection
Committee rejected.
The Arts Commission also announced that it would accept
designs outside of the general artistic competition from
individuals or organizations who paid $5,000 or more to be
high-level sponsors of the program. These sponsors could
choose their own artist to decorate a donkey or elephant, which
would be placed in a “prime public location.” The written
announcement also stated that the Arts Commission “reserves
the right of design approval” and would own the decorated
donkey or elephant.
On the base of each sculpture there would be a plaque with
the artist’s name and the following statement:
DC Commission on the Arts & Humanities
Anthony A. Williams, Mayor
www.partyanimalsdc.org
An organization contributing $2,000 or more also was entitled
to have its name on the plaque.
In mid-March 2002, PETA submitted a sponsorship
package, a check for $5,000, and a sketch of its proposed design,
drawn by a cartoonist. PETA describes itself as a nonprofit
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corporation, founded in 1980, to support “the principle that
animals are not ours to eat, wear, experiment on, or use for
entertainment.” Brief of Appellee at 5. The sketch PETA
submitted depicted an elephant with a sign tacked to its side
stating:
The CIRCUS is Coming
See: Torture
Starvation
Humiliation
All Under the Big Top
A selection committee member informed PETA that its design
was unacceptable. A few days later, PETA submitted two new
designs, one of a happy circus elephant, the other of a sad,
shackled circus elephant with a trainer poking a sharp stick at
him. The committee member called PETA’s representative to
say that the Commission had accepted the happy elephant, but
rejected the sad one. PETA then submitted a fifth design,
depicting a shackled elephant crying. A sign tacked to the
elephant’s side read: “The Circus is coming. See SHACKLES -
BULL HOOKS - LONELINESS. All under the ‘Big Top.’”
The Commission rejected this design. According to an affidavit
of its executive director, PETA’s proposal was “a political
billboard, not art, and unlike any other design submission, it
sought merely to promote a single issue and was not an artistic
expression consistent with the goals, spirit and theme of the art
project. The Party Animals arts project was designed to be
festive and whimsical, reach a broad based general audience and
foster an atmosphere of enjoyment and amusement. PETA’s
proposed fifth design did not complement these goals, and
indeed was contrary to the Party Animals’ expressive, economic,
aesthetic, and civic purpose.”
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The Party Animals exhibit opened at the end of April 2002.
One month later, PETA filed an action against the executive
director of the Arts Commission and the District of Columbia,
seeking a preliminary and permanent injunction and damages.
While the case was pending, PETA submitted a sixth design to
the Commission, slightly altering its fifth design. Again the
Commission rejected it, for reasons similar to those given for
rejecting PETA’s previous submission. All the while, the
Commission held PETA’s $5,000 check without cashing it.
After proceedings unnecessary to recount, the district court
issued a preliminary injunction, finding that the Commission
had violated PETA’s freedom of speech and requiring the
Commission to display PETA’s final elephant. People for the
Ethical Treatment of Animals v. Gittens, 215 F. Supp. 2d 120
(D.D.C. 2002). PETA had its elephant installed at Connecticut
Avenue and Q Street, N.W. It remained there from the end of
August until the end of September 2002, when “Party Animals”
closed. In November 2003, the court issued a memorandum
opinion and order granting PETA’s motion for summary
judgment, denying the District’s cross-motion, and ordering the
Commission to “refund” $4,000 of the $5,000 PETA had paid
because PETA’s elephant had been “excluded from the public
eye” for four of the exhibit’s five months. In late December
2003, the Clerk of the court entered the judgment.
The District noted an appeal from the order granting the
preliminary injunction (No. 02-7106), from the November 2003
memorandum and order granting summary judgment (No. 03-
7190), and from the December 2003 judgment for $4,000 (No.
03-7195). We dismissed the first two appeals in our earlier
decision. 396 F.3d at 425. Only the December 2003 judgment
is before us.
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II.
Donkeys and elephants are the symbols of the two major
political parties. Restricting the “Party Animals” exhibit to only
these symbols excluded the symbols of all other political parties.
But there is no claim that the Commission thereby violated the
First Amendment. See, e.g., City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410 (1993). Nor is there any claim that
the Commission’s written design criteria -- no advertising, no
“social disrespect,” no “slogans and inappropriate images” --
were unconstitutional on their face.
As PETA sees the case, the Commission “would have had
a leg to stand on in rejecting PETA’s design” if it had accepted
“only whimsical or lighthearted designs” and had rejected “all
designs with political or social messages . . ..” Brief of Appellee
at 31. But PETA claims the Commission did not do so. Instead,
it approved “numerous designs that were not whimsical,” such
as tributes to heroes and victims of the September 11 terrorist
attacks and designs commemorating civil rights leaders. Id. at
30. And the Commission approved designs “with political or
social messages or slogans,” such as designs incorporating the
“butterfly ballot” used in Palm Beach County, Florida in the
2000 presidential election and a design containing quotations
from politicians or about politics. Id. at 11-12, 30. PETA’s
argument -- with which the district court agreed -- is that the
Commission modified its design criteria in practice and that
“Party Animals” was a “limited public forum,” at least for those
who donated $5,000 or more. Id. at 34, citing inter alia
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S.
819 (1995); and Lamb’s Chapel v. Ctr. Moriches Union Free
Sch. Dist., 508 U.S. 384 (1993). Because each of PETA’s
“proposed designs satisfied the Party Animals ‘design criteria,’
as published and as applied by the Commission,” the
Commission engaged in viewpoint or content discrimination, in
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violation of the First Amendment, when it rejected those
designs.
The District, of course, disagrees. It argues that as a patron
of the arts, the Commission had discretion “to select those
messages that it wants to promote without running afoul of the
First Amendment.” Brief for Anthony Gittens, et al. at 23,
citing inter alia National Endowment for the Arts v. Finley, 524
U.S. 569 (1998); Arkansas Educ. Television Comm’n v. Forbes,
523 U.S. 666 (1998); and Rust v. Sullivan, 500 U.S. 173 (1991);
see also United States v. Am. Library Ass’n, 539 U.S. 194
(2003) (plurality opinion). The District also attempts to
distinguish PETA’s examples of non-whimsical designs from
the designs, which it approved, containing slogans or political
messages in order to show that the Commission reasonably
rejected PETA’s submissions as inconsistent with the goals and
spirit of the art project. Brief for Anthony Gittens, et al. at 32-
34.
Although the District invokes some of the Supreme Court’s
“government speech” cases, the latest of which is Johanns v.
Livestock Marketing Ass’n, 125 S. Ct. 2055 (2005), it is not
clear which speech it has in mind. We think it important to
identify precisely what, if anything, constituted speech of the
government. As to the message any elephant or donkey
conveyed, this was no more the government’s speech than are
the thoughts contained in the books of a city’s library. It is of no
moment that the library owns the books, just as the District of
Columbia owned the donkeys and elephants. Those who check
out a Tolstoy or Dickens novel would not suppose that they will
be reading a government message. But in the case of a public
library, as in the case of the Party Animals exhibit, there is still
government speech. With respect to the public library, the
government speaks through its selection of which books to put
on the shelves and which books to exclude. In the case before
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us, the Commission spoke when it determined which elephant
and donkey models to include in the exhibition and which not to
include. In using its “editorial discretion in the selection and
presentation of” the elephants and donkeys, the Commission
thus “engage[d] in speech activity”; “compilation of the speech
of third parties” is a communicative act. Forbes, 523 U.S. at
674.
This takes us part of the way toward resolving this case.
The First Amendment’s Free Speech Clause does not limit the
government as speaker, see Rosenberger, 515 U.S. at 833,
although other constitutional constraints not at issue here, such
as the Equal Protection Clause, might. The curator of a state-
owned museum, for example, may decide to display only busts
of Union Army generals of the Civil War, or the curator may
decide to exhibit only busts of Confederate generals. The First
Amendment has nothing to do with such choices.
PETA argues here, as it did in the district court, that we
should treat the sponsorship portion of the “Party Animals”
program as a “designated” public forum, a forum in which
government can limit the subject of the program but cannot,
consistent with the First Amendment, discriminate on the basis
of viewpoint. See, e.g., Cornelius v. NAACP Legal Defense &
Educ. Fund, Inc., 473 U.S. 788, 802 (1985). We believe that
public forum principles “are out of place in the context of this
case.” Am. Library Ass’n, 539 U.S. at 205 (plurality opinion).
The situation here is far removed from one in which, for
instance, a private organization is planning a parade and the
permitting authorities restrict the points of view the organization
may express. Then the government would be performing the
role of regulating private speech. To illustrate further, the
authorities in charge of a city park must make content-neutral
and viewpoint-neutral decisions when passing on applications
for demonstrations in the park. See, e.g., Clark v. Community
9
for Creative Non-Violence, 468 U.S. 288 (1984). But those First
Amendment constraints do not apply when the same authorities
engage in government speech by installing sculptures in the
park. If the authorities place a statue of Ulysses S. Grant in the
park, the First Amendment does not require them also to install
a statue of Robert E. Lee.
In many instances it is quite clear that the government is not
regulating private speech. The government may produce films
and publications. It may run museums, libraries, television and
radio stations, primary and secondary schools, and universities.
In all such activities, the government engages in the type of
viewpoint discrimination that would be unconstitutional if it
were acting as a regulator of private speech. See Frederick
Schauer, Principles, Institutions, and the First Amendment, 112
HARV. L. REV . 84, 104-05 (1998). As Professor Schauer
forcefully argues, the First Amendment problems posed by
similar kinds of government activity cannot be solved by
applying public forum analysis. Id. at 99. Public forums and
designated public forums give private speakers an easement to
use public property. Nothing of the sort occurred here. Instead,
the question we face is whether the “Party Animals” program,
or at least the sponsorship portion of it, was “one of the
government enterprises which may control for content or
viewpoint, and as to this question public forum doctrine offers
no assistance.” Id.
Four Justices in American Library Ass’n agreed with
Professor Schauer’s reasoning, as did Justice Breyer in his
concurring opinion, 539 U.S. at 215-16, which makes a
majority, although Justice Breyer would have applied strict
scrutiny in that case. The issue in American Library Ass’n was
whether Congress could condition funding to libraries on their
implementation of internet filter software. Writing for a
plurality, Chief Justice Rehnquist stated that “forum analysis
10
and heightened judicial scrutiny are incompatible” with the
government’s role as patron of the arts, television broadcaster,
and librarian. Id. at 204-05. Arkansas Educational Television
Commission v. Forbes, 523 U.S. 666, and National Endowment
for the Arts v. Finley, 524 U.S. 569, had suggested as much. As
a television broadcaster, the government must “exercise . . .
journalistic discretion,” Forbes, 523 U.S. at 674; as an arts
patron, the government must “make esthetic judgments,” Finley,
524 U.S. at 586; and as a librarian, the government must “have
broad discretion to decide what material to provide to [its]
patrons.” Am. Library Ass’n, 539 U.S. at 204 (plurality
opinion).
The same is true here. Consider two analogies. First,
suppose that instead of placing the elephants and donkeys on
sidewalks and in parks, the Commission placed them in one of
the District’s public buildings. There could be no persuasive
argument that the First Amendment would prohibit the
Commission from engaging in viewpoint discrimination when
it decided which designs to accept and which to reject. The
hypothetical is indistinguishable from a government art museum
and from this case. It should make no constitutional difference
that “Party Animals” was an outdoor art exhibit or that some of
the donkeys and elephants were placed on private property.
Second, suppose that the Commission put on a parade of
elephants and donkey floats, making the same design decisions
as it did here. Once again we can see no First Amendment
problem with the Commission making arbitrary or viewpoint-
based decisions about which donkeys and elephants it wanted in
its parade. No one could plausibly argue that an Inauguration
Parade has to have balance, or that the losing Presidential
candidate must -- if he requests -- be allowed to have a float of
his own. See Hurley v. Irish-American Gay, Lesbian & Bisexual
Group of Boston, 515 U.S. 557, 568-70 (1995).
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As against this, PETA argues its First Amendment rights
were violated because the sponsorship portion of the “Party
Animals” program, as distinguished from the “Call to Artists”
portion, required those participating to pay the Commission
$5,000. It is true that anyone who paid this amount had greater
privileges than those who engaged in the general competition:
sponsors had more design leeway, they could select their own
artists and, if their designs were accepted, they would have their
donkey or elephant displayed for five months in a prominent
location with a plaque bearing their name. While the
Commission’s failure to abide by any of these commitments
might give rise to a contract claim, we cannot see how any of
this matters under the First Amendment. If the head of the
government’s National Gallery of Art solicited corporate
sponsorship to defray the costs of an exhibition, this would
hardly transform the National Gallery into a limited public
forum. We think the same would be true if the National Gallery
gave the sponsor some role in selecting which works of art the
museum would exhibit and the curator rejected the sponsor’s
choice, for subjective and arbitrary reasons. “[E]sthetic
judgments,” Finley, 524 U.S. at 586, often may appear to be
arbitrary, and sometimes are.
Much of PETA’s argument revolves around what degree of
control the Commission retained over the designs sponsors
submitted. The literature sent to potential sponsors included the
statement that the Commission “reserves the right of design
approval.” PETA believes this statement means nothing more
than that the Commission “reserved the right to enforce its
established criteria, and not a right to act with utter
arbitrariness.” Brief of Appellee at 29. But PETA offered no
evidence that this is what the Commission had in mind when it
reserved the right to reject designs. The declaration from the
Commission’s Executive Director, on which PETA relied, stated
something quite different. According to the declaration, the
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Commission retained discretion to reject designs that in the
Commission’s view “conveyed controversial messages,” which
is consistent with the Commission’s written announcement that
it would impose restrictions against what it considered to be
“inappropriate images.” The Commission rejected PETA’s
designs on that ground (and on the ground that they were not
art). Apart from the evidentiary point, PETA’s contention
founders on the legal principle that the Commission, in deciding
which designs to accept or reject -- that is, in using its “editorial
discretion in the selection and presentation of” the various
designs -- “engage[d] in speech activity.” Forbes, 523 U.S. at
674. As we noted before, “compilation of the speech of third
parties” is a communicative act. Id. As a speaker, and as a
patron of the arts, the government is free to communicate some
viewpoints while disfavoring others, even if it is engaging -- to
use PETA’s words -- in “utter arbitrariness” in choosing which
side to defend and which side to renounce. The First
Amendment’s Free Speech Clause does not apply to the
government as communicator, and it did not restrict the
Commission in its decisions about PETA’s elephants.
Reversed.
ROGERS, Circuit Judge, concurring: Without adopting the
court’s statement on mootness, Op. at 2, see PETA v. Gittens,
396 F.3d 416, 426-27 (D.C. Cir. 2005) (Rogers, J., concurring
in part and dissenting in part), I concur in the holding that the
Commission did not violate PETA’s First Amendment rights.