[00:00:26] Speaker 01:
Stand, please.

[00:00:36] Speaker 01:
Oyez, oyez, oyez.

[00:00:37] Speaker 01:
All persons having business before the honorable the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the court is now sitting.

[00:00:49] Speaker 01:
God save the United States and its honorable court.

[00:00:52] Speaker 01:
Be seated, please.

[00:00:54] Speaker 01:
Case number 17-5095, David Pulfos et al.

[00:00:58] Speaker 01:
Appellates versus Steven T. Ayers and his official capacity as architect of the Capitol.

[00:01:04] Speaker 01:
Ms.

[00:01:04] Speaker 01:
Evanson for the appellates, Mr. Salzman for the appellate.

[00:01:13] Speaker 00:
Good morning, your honor, and may it please the court.

[00:01:15] Speaker 00:
My name is Kimberly Evanson, and I'm here on behalf of Appellates Representative William Lacy Clay and student artist David Pulfos.

[00:01:23] Speaker 00:
I'd like to reserve five minutes of my time for rebuttal.

[00:01:29] Speaker 00:
Government regulation of speech based upon listener reaction is the definition of an unconstitutional heckler's veto, and that is what happened here.

[00:01:39] Speaker 00:
Congressman Lacy Clay selected Untitled Number One, a painting by student artist David Pulphus, as his entry in the Congressional High School Art Competition.

[00:01:50] Speaker 00:
The painting was displayed without incident with all the other winners for a period of about seven months, and then the architect of the Capitol retroactively disqualified it from the competition at the insistence of some other members of Congress who claimed offense at its perceived anti-police viewpoint.

[00:02:07] Speaker 00:
The only defense the architect has offered is that the removal was government speech, and the district court agreed.

[00:02:14] Speaker 03:
Before you get to that, could you talk about mootness?

[00:02:18] Speaker 03:
The most obvious relief you were seeking was rehanging of the painting during the period of the competition, and that's no longer possible.

[00:02:28] Speaker 00:
Yes, Your Honor.

[00:02:29] Speaker 00:
To begin with, it's the government's burden to show that there's no possibility that this court

[00:02:34] Speaker 00:
could offer any relief for the court to dismiss this appeal as moot.

[00:02:39] Speaker 00:
And the government hasn't argued that the case is moot.

[00:02:42] Speaker 03:
They've argued nearly the preliminary injunction appeal, which is all we have before us.

[00:02:46] Speaker 03:
Why shouldn't we dismiss that piece of the case?

[00:02:50] Speaker 00:
So there are several reasons you should not dismiss that piece of the case, Your Honor.

[00:02:54] Speaker 00:
First, the government's mootness argument is predicated on the fact that the disqualification from the competition is over, and that the only thing that happened to David and Representative Clay was that the painting was removed from the wall.

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But that isn't all.

[00:03:12] Speaker 00:
The painting has been

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disqualified from the competition.

[00:03:16] Speaker 00:
David is no longer a winner.

[00:03:18] Speaker 00:
So the benefits that flow from being a winner are no longer provided to him.

[00:03:24] Speaker 00:
There are multiple declarations in the record that detail the harms that appellants experienced and continue to experience as a result of the viewpoint-based disqualification.

[00:03:37] Speaker 00:
It's the architect of the capital.

[00:03:39] Speaker 03:
So the harms are

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The painting is no longer included in the website maintained by a third party who's not before the court and the reputational injury.

[00:03:56] Speaker 00:
So the website is one of the harms, yes, your honor, and it's the architect actually that testified in his declaration.

[00:04:01] Speaker 03:
Those are the two theories, right?

[00:04:03] Speaker 03:
Those are the two injuries that you say are continuing and can still be redressed.

[00:04:10] Speaker 00:
Well, Representative Clay also has a continuing challenge to the suitability guidelines, which he is still subject to, which is still ongoing.

[00:04:19] Speaker 03:
Which is not part of the P.I.

[00:04:21] Speaker 03:
appeal.

[00:04:21] Speaker 00:
Well, Your Honor, it is part of the P.I.

[00:04:23] Speaker 00:
Appeal.

[00:04:24] Speaker 00:
We argued before the court as a basis for our preliminary injunction that the suitability guidelines were unconstitutionally vague.

[00:04:30] Speaker 00:
The government argued they were not, and the court ruled that the appellants have no First Amendment rights, and so it didn't have to reach the issue.

[00:04:38] Speaker 03:
So can we just go through them one by one?

[00:04:40] Speaker 03:
Reputation.

[00:04:42] Speaker 03:
We said in McBride that if you have an otherwise moot

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government action and harm to reputation flows from that as a secondary effect, that's not enough.

[00:04:56] Speaker 03:
Why, so why isn't that, to the extent you're challenging kind of the, what you call the disqualification, as opposed to the failure to put the painting on the website, why isn't that enough?

[00:05:14] Speaker 03:
It seems highly akin to the suspension in McBride and the period ran and he says, well, the case is live because my reputation is still harmed and we said not enough.

[00:05:26] Speaker 00:
So in McBride, though, there was also an unexpired public reprimand that the court found was enough to continue to be challenged, even though the suspensions themselves had expired.

[00:05:37] Speaker 03:
Right, which was still on some court or other website, which is analogous to your second theory about the painting not being included in what is Congressional Institute's website.

[00:05:51] Speaker 00:
Yes, Your Honor, they're all bound up together, is that the disqualification remains.

[00:05:56] Speaker 00:
It's the architect of the Capitol who testified in his declaration that one of the benefits of being a winner of the competition is that the art appears on this virtual gallery.

[00:06:06] Speaker 00:
And if the court looked at the virtual gallery that we've included in the record, just the screenshots showing every year of Missouri's entries, and that's a JA 604 to 608,

[00:06:20] Speaker 00:
it shows the first district of Missouri is there.

[00:06:23] Speaker 00:
Until you get to 2016, it's not there.

[00:06:26] Speaker 03:
Right, but this is the first time something like this has arisen, which is the member picks the painting that the member wants hung, and the architect makes a suitability determination.

[00:06:42] Speaker 03:
And how do we know that the painting was removed from the website because of the suitability determination rather than because some very high profile people were leveling some very substantial criticisms of the painting?

[00:07:01] Speaker 00:
So we know that the painting was removed from the website because it was on the website up until the point that the architect issued its disqualification.

[00:07:12] Speaker 03:
And up until the point that the Speaker of the House started very publicly saying this painting is an outrage.

[00:07:19] Speaker 03:
Yes, Your Honor, the Speaker of the House did say that, which we posit is... And could continue to say that if we were to rule in your favor, there'd probably be another outcry, and the people who maintain this website, who are not before us, would have to make a decision whether or not to repost the painting, pick an image of the painting, and how do we know that they would?

[00:07:49] Speaker 00:
Well, Your Honor, it's not certain that they would, but the Supreme Court has said that certainty as to a particular avenue of relief is not required in order to defeat mootness.

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And this court has said that when a legal error is made in the denial of a preliminary injunction, that this court will review that legal error and correct it so that proceedings below can proceed under the proper standard.

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And that's what we're asking this court to do today.

[00:08:18] Speaker 04:
Doesn't it have to be likely that the private actor will respond in some way to our opinion?

[00:08:26] Speaker 00:
So, Your Honor, I want to clarify that

[00:08:30] Speaker 00:
The relief is not merely bound up in the reinstatement on the website.

[00:08:36] Speaker 00:
It's the architect who testified.

[00:08:38] Speaker 00:
That's a benefit that belongs to the winner.

[00:08:40] Speaker 00:
But David also testified that he doesn't believe he can put this on his resume anymore.

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He feels that the disqualification lasts.

[00:08:50] Speaker 04:
I understand, but if you'd mind going back to that question, don't you have to show it's likely?

[00:08:55] Speaker 04:
With respect to that particular injury, don't you have to show it's likely?

[00:09:00] Speaker 00:
I don't believe we have to show it's likely.

[00:09:01] Speaker 04:
Isn't that what we said in Teton?

[00:09:03] Speaker 04:
In Teton we said very likely, actually.

[00:09:06] Speaker 00:
Teton did say very likely, Your Honor, but Chaffin, the Supreme Court in Chaffin said that we don't have to show certainty, but again... Was that a private actor?

[00:09:17] Speaker 04:
A separate private actor?

[00:09:19] Speaker 00:
Excuse me?

[00:09:19] Speaker 04:
Was that a separate private actor?

[00:09:21] Speaker 00:
they were talking about the actions of a non-party in that case.

[00:09:25] Speaker 03:
No, they were talking about the possibility that the party before the court subject to the court's order might disobey it.

[00:09:35] Speaker 03:
And they said that possibility is not enough to defeat mootness.

[00:09:39] Speaker 00:
Your Honor, I would like to respond by saying that

[00:09:44] Speaker 00:
The the injury that representative clay and that David assert is redressable ultimately by an order that from the district court or this court that what happened to him was wrong and that's what this court said in for titch.

[00:10:02] Speaker 00:
whether or not we don't have any reason to believe that the painting would not be returned to the website but that's just one incident of being a winner in the competition so it while we would certainly hope that the Congressional Institute would follow a court order that said the exclusion the exclusion was unconstitutional we would not we

[00:10:24] Speaker 00:
that it's not necessary to, a finding at this point in the proceedings is not necessary in order to rule that the case remains live.

[00:10:36] Speaker 00:
Turning to the government speech issue, what the government has to show is that in order for the First Amendment not to apply is that the very narrow doctrine of government speech

[00:10:51] Speaker 00:
controls the medium, the history, the purpose of whatever the government is trying to say.

[00:10:57] Speaker 00:
Now, the purpose of the government's speech doctrine, as the Supreme Court just said in Matau, is to enable the government to speak efficiently and without its message being garbled.

[00:11:13] Speaker 00:
We have to start with the threshold question that was articulated in Rosenberger, which is, is there intent of government to deliver a message?

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Or, as is the case here, is the government creating a program or a forum

[00:11:30] Speaker 00:
by which other private speakers are communicating.

[00:11:34] Speaker 00:
If we look at the history of the competition, we don't see any intent to communicate a message on behalf of the government.

[00:11:42] Speaker 00:
We see a forum.

[00:11:45] Speaker 00:
The purpose of the competition, as stated in the record, was to give members the opportunity to showcase their constituents, and to give their constituents the opportunity to showcase their creative talents.

[00:11:57] Speaker 00:
There's nothing in the record that suggests that the government was intending to communicate a specific message.

[00:12:04] Speaker 03:
And the second factor under the Summon Walker cases is just on before you get to the second on the first factor context matters and the context here is the private space in a government building.

[00:12:20] Speaker 03:
Doesn't that cut against you?

[00:12:23] Speaker 00:
So your honor, we don't believe it cuts against us because

[00:12:27] Speaker 03:
would be an odd place to showcase the speech of private parties in a part of the capital that private parties can't ordinarily access.

[00:12:40] Speaker 00:
So I have a few responses to that.

[00:12:42] Speaker 00:
First, private parties actually can access the Cannon Tunnel.

[00:12:46] Speaker 00:
It's the architect who's described the Cannon Tunnel as highly traveled.

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Second,

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If the inquiry was based just on government control of government property, then that would implicate all even public forum cases with courthouse squares and capital steps that the court has said mere government control is not sufficient.

[00:13:10] Speaker 00:
But also, the Cannon Tunnel is open to thousands of Capitol visitors and staff and the members themselves.

[00:13:20] Speaker 00:
Part of this forum is a forum for members to express and celebrate the talents of their constituents.

[00:13:26] Speaker 04:
I swear I just thought of this just now, but looking out at you and this courtroom and all the people here.

[00:13:32] Speaker 04:
So individual judges decide which portrait artists they want on these walls.

[00:13:40] Speaker 04:
And thousands of people come in the public, come and look at these walls.

[00:13:46] Speaker 04:
If the court, if one of the judges selected a portrait that the rest of the judges thought was too controversial, they didn't like it, or for any vague reason, and they decided, sorry, we're not gonna accept this.

[00:14:10] Speaker 04:
Would that violate the judge's First Amendment rights?

[00:14:12] Speaker 04:
That's the argument you're making about the member of Congress here, right?

[00:14:15] Speaker 00:
Well, Your Honor, it would depend, of course, on how the judges had set up the selection of art.

[00:14:21] Speaker 04:
That's what it would depend on.

[00:14:22] Speaker 04:
If the judges had said, we're going to generally leave it to individual judges to make this decision, but we retain ultimate control and we've never previously

[00:14:40] Speaker 04:
exercise that control, but we did it for the first time, say, on Judge Garland's portrait.

[00:14:46] Speaker 04:
Would that be a violation of Judge Garland's constitutional right?

[00:14:51] Speaker 00:
Well, Your Honor, it would depend on whether, if you're going toward a government speech analysis, whether the government was intending to send a message through those forums.

[00:15:01] Speaker 04:
So you think it's quite possible.

[00:15:03] Speaker 04:
It is possible.

[00:15:05] Speaker 04:
that my constitutional right to put any kind of portrait I want on the wall would be offended.

[00:15:13] Speaker 04:
That is the implication of your argument, isn't it?

[00:15:15] Speaker 00:
It is a far-reaching implication of our argument, but I don't think it's necessary to rule in our favor, because here we have clear evidence that there was a forum for member speech and that this particular painting was removed on the basis of its viewpoint.

[00:15:30] Speaker 04:
Was the member acting in his, in this case,

[00:15:35] Speaker 04:
personal capacity or in his capacity as a member of Congress?

[00:15:38] Speaker 00:
Well, Your Honor, there's two answers to that question, and I actually don't think it's dispositive, but the member, of course, had to be a member of Congress to participate in the forum.

[00:15:48] Speaker 04:
And so he was a state actor.

[00:15:50] Speaker 00:
No, Your Honor, he was speaking in his own personal and political capacity in making this choice.

[00:15:58] Speaker 04:
Well, political capacity is fine, but that arises out of his being a member of Congress.

[00:16:04] Speaker 04:
If a member of Congress acts, they're acting as a state actor, aren't they?

[00:16:10] Speaker 00:
Well, Your Honor, not every speech statement made by a member of Congress is government speech.

[00:16:16] Speaker 04:
Where they're delegated the authority to do something,

[00:16:19] Speaker 04:
by a larger body of the Congress, which obviously occurred here, right?

[00:16:23] Speaker 04:
He didn't just do it on his own.

[00:16:24] Speaker 04:
He had authority to do this, right?

[00:16:26] Speaker 00:
Sure.

[00:16:26] Speaker 00:
The Congressional Art Competition is a tradition among members, and they all participate, and they have the opportunity to submit a painting.

[00:16:34] Speaker 04:
In that capacity, he was acting as a government official.

[00:16:38] Speaker 00:
In that capacity, sure, he was acting as a member of Congress, but that's not the question under the government speech doctrine.

[00:16:44] Speaker 04:
And this question actually gets to... Before you get to that, let me just ask you another hypothetical.

[00:16:51] Speaker 04:
Could he, this congressman,

[00:16:54] Speaker 04:
exercise viewpoint discrimination in deciding which painting he would put up as his district's painting.

[00:17:03] Speaker 00:
So yes, we believe that he could.

[00:17:05] Speaker 04:
Because it was government speech?

[00:17:07] Speaker 00:
No, because the member is acting, well, for two reasons.

[00:17:11] Speaker 00:
One, the government speech, the only government speech that the government has alleged here

[00:17:17] Speaker 00:
is that the speech of the architect is the government's speech, and he has the power to control whatever the government's message is.

[00:17:25] Speaker 03:
And so... But under your theory, the competition is a forum.

[00:17:30] Speaker 03:
Under our theory... And that seems to necessarily imply what the chief judge was just asking you, that he can't

[00:17:39] Speaker 03:
He is making all of these decisions with no guidelines, which you would need for a forum.

[00:17:46] Speaker 03:
It's perfectly free to viewpoint discriminate.

[00:17:49] Speaker 03:
And that's the necessary implication of your theory.

[00:17:53] Speaker 00:
But even if the court determined, and we don't have an adequate record to know how all these members are making these different determinations, even if the court determined that that district level decision was somehow consistent with the government speech doctrine, that doesn't mean that the national exhibition is.

[00:18:12] Speaker 00:
We still have to ask the questions articulated by Matal, which are, would a reasonable person believe that the government is speaking and sending a message through this medium?

[00:18:23] Speaker 00:
Has the government exercised editorial control?

[00:18:26] Speaker 00:
Or, as in our case, is the government acting to restrict minority viewpoints?

[00:18:31] Speaker 00:
I see that I'm out of time.

[00:18:33] Speaker 03:
That's OK.

[00:18:34] Speaker 03:
Can I ask you another hypothetical?

[00:18:35] Speaker 00:
Of course.

[00:18:36] Speaker 03:
Suppose Representative Clay,

[00:18:40] Speaker 03:
wants to decorate his own office, and he thinks it would be a nice gesture to his constituents to have one wall in the office dedicated to artwork by his constituents.

[00:19:01] Speaker 03:
solicits people to submit and he says, I will display my 10 favorite ones every year.

[00:19:12] Speaker 03:
Can he, does that make his office, does that make that what I've just described into a non-public forum?

[00:19:23] Speaker 00:
No, your honor.

[00:19:24] Speaker 03:
It doesn't say how is this different?

[00:19:26] Speaker 03:
So this is the government doing exactly the same thing in its private space.

[00:19:32] Speaker 00:
It is of its own buildings.

[00:19:33] Speaker 00:
It is different in several crucial respects.

[00:19:35] Speaker 00:
And the Peter case from this court actually helps us to determine that in Peter.

[00:19:41] Speaker 00:
This court ruled that when the District of Columbia set out to communicate a message about the district,

[00:19:46] Speaker 00:
it decided to form a commission to sponsor and commission a particular piece of art, an exhibition that showed the fun side of the District of Columbia.

[00:19:58] Speaker 00:
And so in doing that, it decided the best way to communicate that message about the greatness of the District of Columbia and its fun and whimsical side was to decorate

[00:20:10] Speaker 00:
decorate donkeys and elephants, and it solicited designs, and it accepted only the few that it believed best communicated that message.

[00:20:22] Speaker 00:
The distinction that you're getting at is whether government control of art is government

[00:20:29] Speaker 00:
art for government purposes.

[00:20:31] Speaker 00:
The amicus brief explored the difference between commissioning a piece of government art for government purposes.

[00:20:37] Speaker 00:
That's PETA.

[00:20:39] Speaker 03:
So let's say, just to clarify the hypothetical, he can only select a small percentage of submissions.

[00:20:46] Speaker 03:
He's got two spaces on the wall and he gets 20 submissions.

[00:20:50] Speaker 00:
Which is fine, again, your honor, because the locus of control over the display is starting and ending with Clay.

[00:20:59] Speaker 00:
Here we have the exact opposite.

[00:21:01] Speaker 00:
We have a forum for members.

[00:21:03] Speaker 03:
You have Clay acting as, I don't know what you would call it, the curator.

[00:21:10] Speaker 03:
He is selecting the one piece of art from all of the submissions that are coming into him from his district

[00:21:18] Speaker 03:
And he is saying under completely standardless viewpoint-based, whatever standards he wants, he's saying, this is the one that I, you know, qua curator want to put up.

[00:21:33] Speaker 00:
So, Clegg is doing that, but there's no evidence that the architect has done that.

[00:21:40] Speaker 03:
The arts patron cases where the government- But that is part of, that is the essential first step of the process by which these paintings are selected.

[00:21:49] Speaker 03:
And so, to come to the third element, which is control,

[00:21:53] Speaker 03:
You say there's essentially none by the architect, and that may or may not be right, but there's a lot of control and selectivity by the individual members.

[00:22:03] Speaker 00:
That's true, Your Honor, but the way the government has argued the government speech defense, it can't be that selection of content by a government official on government property means it's government speech.

[00:22:16] Speaker 00:
That would collapse every First Amendment case that we have.

[00:22:19] Speaker 03:
Not by itself, but it goes to how the control factor, whether it cuts for you because the architect isn't doing so much,

[00:22:29] Speaker 03:
or against you because the representatives are doing a lot of control.

[00:22:34] Speaker 00:
And this hypothetical demonstrates why the government's speech doctrine is such a bad fit for this program.

[00:22:41] Speaker 00:
A program, the Second Circuit just articulated Rosenberger by saying, a program which by its very design is intended to encourage

[00:22:50] Speaker 00:
and facilitate a diversity of views is not government speech, even if the government is funding it and supporting it.

[00:22:59] Speaker 00:
Here we have the architect has never exercised any curatorial discretion, so any

[00:23:06] Speaker 00:
Deference that could a court has typically afforded to curators or librarians in those specialized roles that deference comes from the fact that one they're assumed to be exercising certain professional standards as amici explained that are inherent in

[00:23:24] Speaker 00:
in art curating or being a librarian or being a journalist.

[00:23:28] Speaker 00:
For that reason, the government defers.

[00:23:30] Speaker 00:
But even in those cases, the government warns that discretion is cabined by viewpoint discrimination.

[00:23:37] Speaker 00:
Finley said, it's okay for the government to have vague standards in art because we understand there are

[00:23:44] Speaker 00:
subjective determinations like excellence and merit that go into the award of NEA grants.

[00:23:49] Speaker 00:
But they said if there was actual evidence of viewpoint discrimination, this would be a different case.

[00:23:54] Speaker 04:
That wouldn't apply to an art museum, government art museum, though, would it?

[00:23:57] Speaker 00:
Well, Your Honor, it may.

[00:23:59] Speaker 00:
There are several district court cases that held that the government can't just pull out art it finds offensive out of an art museum just because it receives government funding.

[00:24:10] Speaker 04:
What about what we said in PETA about exactly that point?

[00:24:14] Speaker 04:
Didn't we say that that is government speech?

[00:24:17] Speaker 00:
Yes, Your Honor.

[00:24:18] Speaker 00:
What PETA said, and the conclusion of the opinion says, as a speaker and an arts patron, in PETA, the locus of control over the exhibit started and ended with the government.

[00:24:32] Speaker 00:
That's a different situation than, say, for example, the Brooklyn Museum case, where the museum received some funding, and then the mayor of New York wanted to pull an exhibit because he found it personally offensive.

[00:24:43] Speaker 00:
And the court said, that's not OK.

[00:24:46] Speaker 00:
Our First Amendment jurisprudence in the arts doesn't say, every time the government is involved in arts, it's government speech.

[00:24:53] Speaker 04:
Let me just read our First Amendment jurisprudence from PETA since you brought up the case.

[00:24:59] Speaker 04:
Suppose instead of placing the elephants and donkeys on sidewalks and in parks, the government placed them in one of the district's public buildings.

[00:25:06] Speaker 04:
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 hypotheticals indistinguishable from a government art museum.

[00:25:22] Speaker 04:
from this and from this case, should make no constitutional difference that they were in an outside art exhibit or that some were placed on private property.

[00:25:31] Speaker 00:
And that's correct, Your Honor.

[00:25:32] Speaker 00:
We wouldn't disagree with that point of view.

[00:25:35] Speaker 00:
Again, this distinction articulated in PETA and what we have here, or say PETA versus the Wandering Dago case recently decided by the Second Circuit, is that in PETA, again, it was

[00:25:47] Speaker 00:
government commissioned controlled exhibit and so if in that case the government was referring to a government museum where the government said we are going to honor these particular folks from this chapter in history that's a different situation than what we have here what we have here is the government opening a forum now that forum is limited and

[00:26:09] Speaker 00:
and it's subject to reasonable limitations on identity of speaker, but in even a non-public forum, our constitution forbids viewpoint discrimination, precisely for what happened here, the chilling of minority views.

[00:26:24] Speaker 04:
The question is whether it's a government, whether it's a government forum or not, whether it's a forum or whether it's government speech.

[00:26:31] Speaker 00:
That is the question in this case, your honor.

[00:26:33] Speaker 04:
All right, let me ask if anybody else on the panel has questions.

[00:26:36] Speaker 04:
Okay, thank you.

[00:26:37] Speaker 00:
Thank you.

[00:26:46] Speaker 02:
May it please the court, Josh Salzman on behalf of the architect.

[00:26:50] Speaker 02:
I'd like to begin with the mootness argument.

[00:26:52] Speaker 02:
And frankly, many of the points I would have brought to the panel's attention have already been well aired during the first half of this argument.

[00:26:59] Speaker 02:
And I won't reiterate them here.

[00:27:01] Speaker 02:
But there are a couple of facts I'd like to highlight in particular that I think emphasize why this case is moot and the court should not reach the merits here and lacks jurisdiction to reach the merits.

[00:27:15] Speaker 02:
One thing I want to emphasize is the narrowness of the architect's decision, which you can see memorialized at page 400 of the joint appendix.

[00:27:22] Speaker 02:
Opposing counsel was up here and told you that this was a decision that disqualified the painting.

[00:27:27] Speaker 02:
But if you read the painting, if you actually read what the architect did here, it's a very narrow decision that simply says,

[00:27:33] Speaker 02:
I have determined this painting does not meet the suitability guidelines and I'm having it removed from the wall.

[00:27:38] Speaker 02:
There's no official record of the competition that's maintained by the architect from which this painting was stricken or removed.

[00:27:46] Speaker 02:
So as a result, I think to the extent that their preliminary injunction request could be read as anything broader than a request to simply have the physical painting put up on the wall.

[00:27:55] Speaker 02:
All they said is the architect's decision should be reversed.

[00:27:58] Speaker 02:
All the architect's decision really said is the painting should come off the wall.

[00:28:02] Speaker 02:
There was no instruction to the Congressional Institute to take this down.

[00:28:05] Speaker 02:
And as was suggested earlier, it's entirely speculative how the Congressional Institute would respond to any decision that this court made, particularly in a preliminary injunction posture that wouldn't decide the ultimate merits, but merely would express a view of likelihood of success.

[00:28:23] Speaker 04:
I don't understand what you mean by saying it wasn't disqualified.

[00:28:26] Speaker 04:
What does that mean?

[00:28:28] Speaker 04:
It was no longer qualified to be hung on the wall, isn't that right?

[00:28:31] Speaker 02:
That's true, Your Honor.

[00:28:33] Speaker 02:
It had to come down off the wall.

[00:28:35] Speaker 02:
But I took opposing counsel to be- And why did it have to be taken down off the wall?

[00:28:38] Speaker 02:
Because the architect had determined it didn't comply with the suitability guidelines.

[00:28:42] Speaker 04:
Well, qualify under those guidelines.

[00:28:44] Speaker 04:
Is that just another way of saying the same thing?

[00:28:47] Speaker 04:
I don't understand the quibble over the word qualification.

[00:28:51] Speaker 02:
I don't want to put too much emphasis on the word qualification.

[00:28:53] Speaker 02:
What I want to emphasize here is there wasn't an instruction that the painting should be removed from some public record.

[00:29:01] Speaker 02:
That Mr. Pulfis, for example, was prohibited from listing this on his resume.

[00:29:06] Speaker 02:
He is still free to list the true fact that his painting was selected by Representative Clay for inclusion in this competition.

[00:29:13] Speaker 02:
That's the only point I'm trying to make here, Your Honor.

[00:29:16] Speaker 02:
The other thing I want to emphasize, to the extent that we're talking about reputational harm here, and I think Judge Katz has already quite rightly emphasized the key language from the McBride opinion.

[00:29:27] Speaker 02:
But the other thing I want to say is that the decision here was not itself particularly stigmatizing.

[00:29:35] Speaker 02:
In the past, what you've been talking about in McBride was a censure.

[00:29:39] Speaker 02:
In Fornich, it was a finding that the

[00:29:43] Speaker 02:
that the individual had sexually abused his daughter.

[00:29:46] Speaker 02:
Here what we have is simply a finding that the painting did not meet the suitability guidelines.

[00:29:50] Speaker 02:
And I note that those suitability guidelines exclude subjects of contemporary political controversy.

[00:29:55] Speaker 02:
There's nothing inherently stigmatizing in having one's work described as portraying a contemporary political controversy.

[00:30:02] Speaker 02:
And in fact, plaintiffs freely admit that that's precisely what this work was.

[00:30:08] Speaker 02:
So I think for that reason as well, and for all the reasons that were brought up earlier, this court really can't get past the mootness issue.

[00:30:17] Speaker 02:
But if there are any questions on mootness, I'm happy to address them.

[00:30:20] Speaker 02:
I'm also happy to address the merits, but of course the court can't reach those unless it finds the mootness overcome here.

[00:30:27] Speaker 04:
We don't have to do that during this oral argument, so I'd expect it to be a good idea for you to keep going.

[00:30:31] Speaker 02:
OK.

[00:30:33] Speaker 02:
I'd be happy to, Your Honor.

[00:30:35] Speaker 02:
So I think that what makes this

[00:30:38] Speaker 02:
I think there are a couple of reasons that the holistic assessment of the facts here yields the conclusion that it's government speech.

[00:30:47] Speaker 02:
But particularly telling is the fact that a member of Congress acting in their official capacity has to make the selection.

[00:30:54] Speaker 02:
And when they make that selection, they have to sign a form.

[00:30:56] Speaker 02:
This is at JA 389 that says that they approve of the work, that they support its content, and that they're responsible for it.

[00:31:04] Speaker 02:
The fact that a government actor needs to take those steps and is free, by the way, to engage in, as my opposing counsel conceded, any form of viewpoint discrimination in the course of making their selection, I think distinguishes any kind of art competition or any of the other concerns.

[00:31:22] Speaker 03:
Would anyone in their right mind, the reasonable observer, looking at that exhibit, which is a whole series of very different paintings,

[00:31:38] Speaker 03:
think, oh, this is the position of the House of, the United States House of Representatives.

[00:31:44] Speaker 03:
When that painting stands next to one that, you know, someone holding a flag and stands next to whatever, a pretty picture of a flower or something.

[00:31:55] Speaker 02:
I think the relevant question is would they think this is a government compiled and curated exhibit.

[00:32:00] Speaker 02:
I'd push back strongly on the notion that you need any kind of coherent or single message for government speech to apply.

[00:32:07] Speaker 02:
In Summa, there wasn't.

[00:32:08] Speaker 03:
Well, except that in Matal, in finding no government speech, the court said, gosh, if this were government speech, the government would be babbling incoherently.

[00:32:22] Speaker 02:
That's true, Your Honor, but I'd point out a few things about Matal.

[00:32:26] Speaker 02:
First, Matal did not purport to overrule Walker or Sumam, and I don't think can be seen as disturbing this court's holding in guidance.

[00:32:35] Speaker 04:
How would you reconcile the babbling license plates, some of which say go Texas and some of which said go North Carolina,

[00:32:46] Speaker 04:
and the babbling trademarks, some of which were completely inconsistent with each other on political and other grounds.

[00:32:55] Speaker 04:
How do you reconcile those two Supreme Court cases?

[00:32:59] Speaker 02:
Sure, Your Honor.

[00:33:00] Speaker 02:
Well, first of all, I note that Tam specifically preserved Walker, just described Walker as the outer perimeter.

[00:33:06] Speaker 02:
of the First Amendment.

[00:33:07] Speaker 04:
That doesn't reconcile them.

[00:33:08] Speaker 04:
That just says one is the outer perimeter but doesn't explain the perimeter.

[00:33:13] Speaker 02:
The two factors that made TAM very different were, first of all, that the PTO had a decision going back to 1993 that expressly disclaimed any government in perimeter.

[00:33:25] Speaker 03:
Well, but they also have they also had a statute which said don't license.

[00:33:32] Speaker 03:
I forgot the exact things that are offensive right so it seems structurally similar in that you have.

[00:33:42] Speaker 03:
If you're comparing the PTO to the architect, very liberal range of permissible subjects and they're doing a screen on the outer bounds for things they find offensive.

[00:33:58] Speaker 02:
So what Justice Alito highlighted in TAM was the fact that here you had a government program that mandated.

[00:34:08] Speaker 02:
There was really no selectivity.

[00:34:10] Speaker 02:
You had some very broad criteria.

[00:34:13] Speaker 02:
And any of the hundreds and hundreds of thousands

[00:34:15] Speaker 02:
of trademarks that met those criteria had to be registered, Section 2A of the Act.

[00:34:20] Speaker 03:
Right, but you had an express reservation which was written into the statute saying we will not accept offensive marks.

[00:34:31] Speaker 02:
But you had the lack of exclusivity.

[00:34:34] Speaker 02:
You had the lack of culling that you have in a case like this, for example.

[00:34:38] Speaker 02:
Member Clay received 37 submissions, and he picked one.

[00:34:42] Speaker 02:
So I think that that makes that very different from a situation where the USPTO is generally taking trademarks, assessing them for things like genericness.

[00:34:52] Speaker 02:
Are they descriptive?

[00:34:53] Speaker 02:
Are they confusingly similar to other marks?

[00:34:56] Speaker 02:
And as opposed to a situation where you have a member

[00:34:59] Speaker 02:
who is a government actor acting in an official capacity who is selecting one work to represent him and then putting his name on it and saying that he approves of it and supports it, which is very different, of course, from what the PTO was doing there.

[00:35:13] Speaker 02:
I'd also note that the government,

[00:35:16] Speaker 02:
Tam says what it says, but it is worth noting that the government in Tam itself made government speech, did not make a leading government speech argument.

[00:35:26] Speaker 02:
There was certainly discussion of Walker.

[00:35:28] Speaker 02:
What the government's argument was is that Tam implicated the same concerns as Walker, but we always understood that the

[00:35:36] Speaker 02:
The kinds of situation we were dealing with in Tam was very different from the kinds of situation in a case like Gittin's when the government is, which far more closely resembles this case, when the government is selecting art for display.

[00:35:50] Speaker 02:
And indeed here, selecting the art for display in a government building, in a restricted area of a government building.

[00:35:58] Speaker 02:
The other thing I want to push back on for purposes of the government's speech argument is this notion that the architect has wholly abdicated control here.

[00:36:06] Speaker 02:
I think it's important to bear in mind in assessing this that there's a structure of power that runs through this, and there's a delegation of authority.

[00:36:13] Speaker 02:
That delegation starts with 2 USC 2001, which vests in the architect control and supervision over

[00:36:21] Speaker 02:
the relevant areas of the Capitol and the House Office Building.

[00:36:24] Speaker 02:
And that the architect then, for these purposes, acts under an entity known as the House Office Building Commission, which is composed of the Speaker of the House and two other members of Congress.

[00:36:34] Speaker 02:
Now, back in 1981, the House Office Building Commission authorized the Congressional Art Competition.

[00:36:42] Speaker 02:
But at that time, from the very get-go, they were very clear that they did not want to create some kind of open public forum for speech.

[00:36:48] Speaker 02:
What Speaker Tip O'Neill said at that time is we need to make sure the dignity of these halls are assured, so we need a check in place.

[00:36:57] Speaker 02:
A professional jury needs to be ready to screen these.

[00:37:00] Speaker 02:
We're making a delegation of authority to members to make selections, but that's always going to be subject.

[00:37:06] Speaker 02:
to the oversight of the architect.

[00:37:09] Speaker 02:
Now, in the year since, the architect has, in the district court's words, kept a light hand on the reins, but the rules have always made clear that there's going to be a suitability determination.

[00:37:19] Speaker 02:
Every year, the architect has continued to review those paintings.

[00:37:23] Speaker 02:
The architect hasn't just given up the task.

[00:37:25] Speaker 02:
The architect has flagged works that are potentially unsuitable and has, in the past, generally deferred to members, but sometimes members have withdrawn works

[00:37:35] Speaker 02:
that the architect has flagged and has recognized that maybe those aren't suitable.

[00:37:40] Speaker 02:
There's also nothing.

[00:37:43] Speaker 02:
But that can't be enough, right?

[00:37:45] Speaker 02:
I think it can.

[00:37:47] Speaker 02:
It can be in combination with the other factors, Your Honor, which, if I may.

[00:37:51] Speaker 03:
I mean, take Rosenberger, right?

[00:37:55] Speaker 03:
Can the government say, we want to have a newspaper and we want to solicit student articles, but you know what?

[00:38:09] Speaker 03:
Those pesky religious articles we think are not suitable.

[00:38:13] Speaker 03:
So that's what we're going to do.

[00:38:15] Speaker 02:
I mean, that is Rosenberger pretty close to it.

[00:38:19] Speaker 02:
Rosenberger was a fund, yeah.

[00:38:20] Speaker 03:
That is Rosenberger, and forum analysis and the prohibition against viewpoint discrimination was applied.

[00:38:29] Speaker 02:
That's certainly true, Your Honor.

[00:38:30] Speaker 02:
I think it depends how the program is set up, obviously.

[00:38:35] Speaker 02:
This is a context-specific analysis.

[00:38:37] Speaker 02:
But here you have a program where the other thing I want to highlight is the fact that there's a declaration in the record from the curator of the Architect of the Capitol who explains that since the advent of email, what you have

[00:38:49] Speaker 02:
are members sending images of the works in advance before the selection so that they can get sort of preliminary views on the suitability of the works.

[00:39:00] Speaker 02:
Now, it's not going to be visible in the same way as a post hoc disqualification, but that's another way that the architect

[00:39:08] Speaker 02:
influences the decision and it's very sensible that they do it that way because you want to avoid precisely the situation you have here.

[00:39:15] Speaker 02:
You want to avoid a situation where a painting is taken to Washington, a student is invited, and then suddenly it's decided it's unsuitable.

[00:39:21] Speaker 02:
So there's behind the scenes things that happen in advance of the selections through which the architect helps guide people towards suitable choices.

[00:39:29] Speaker 02:
Throughout, the architect has never disclaimed the authority to make the selections and ultimate authority to decide what is and is not suitable.

[00:39:37] Speaker 02:
But of course, the architects, I think it's quite right to recognize that they can't skip over the first step, which also I think makes this an even easier case because you have the member of Congress acting in an official capacity making those selections.

[00:39:53] Speaker 02:
Questions?

[00:39:56] Speaker 02:
Thank you.

[00:39:57] Speaker 04:
Is there any time left?

[00:40:00] Speaker 00:
I just want to follow up on a few brief points.

[00:40:07] Speaker 00:
So as this court recently ruled this summer in the WMATA cases,

[00:40:11] Speaker 00:
The court said that we have to look at the actual practice of the government to see what has happened to evaluate whether its restrictions are reasonable.

[00:40:22] Speaker 00:
And as the Supreme Court just recently ruled in Mansky, there has to be a sensible way when you're looking at restrictions on speech of telling what is in and what is out.

[00:40:33] Speaker 00:
Now responding to counsel for the government, he just said that

[00:40:37] Speaker 00:
that the declaration in the record suggested that there was some sort of pre-review happening.

[00:40:44] Speaker 00:
And what the curator said is that since the advent of email, they're available for those options.

[00:40:50] Speaker 00:
But there's nothing in the record that says she has exercised that to say that a member cannot

[00:40:57] Speaker 00:
support or sponsor their chosen work.

[00:41:00] Speaker 00:
To the contrary, the only thing the curator put in the record was the instances where she or the architect has deferred in the past to members.

[00:41:09] Speaker 00:
The year that David's painting was disqualified, there were two paintings that were flagged, only two as potentially unsuitable, neither of which was David's.

[00:41:18] Speaker 00:
And the architect contacted those members and said, do you still want to sponsor this painting that depicts bullet holes in a young boy's body?

[00:41:26] Speaker 00:
And the member said, yes.

[00:41:28] Speaker 00:
And they said, OK.

[00:41:29] Speaker 00:
And it was the same answer with respect to the painting of Bob Marley smoking marijuana.

[00:41:35] Speaker 00:
And so it can't be that every time the government simply interacts with art that it becomes government speech.

[00:41:42] Speaker 00:
What the government is asking for here is a dramatic expansion of the government's speech doctrine.

[00:41:47] Speaker 00:
And affirming the district court on this record would be tantamount to ruling that whenever the government is tangentially involved in art in any way through a fund or a program, no matter how diffuse, that the government is speaking and the First Amendment does not apply.

[00:42:02] Speaker 00:
That is contrary to the Supreme Court, and that is contrary to our most sacred principles.

[00:42:06] Speaker 04:
That would require us, if we were to rule against you,

[00:42:09] Speaker 04:
be tantamount in the way you said, that we wouldn't mention that it was in the capital, we wouldn't mention that it was in the tunnel, right?

[00:42:17] Speaker 04:
I mean, the way you just put it, anything government ever does, in even the most tangential way,

[00:42:24] Speaker 04:
If we were to rule against you, I'm pretty sure we would mention the fact that the paintings are put inside the US Capitol.

[00:42:31] Speaker 00:
Of course, Your Honor, and that's one of the factors that has to be considered.

[00:42:34] Speaker 00:
But this court in the past and district courts in this court have applied the forum analysis to the interior of the US Capitol.

[00:42:42] Speaker 00:
That's Washington Activity Group v. White and the Bynum case, which is cited in our materials.

[00:42:47] Speaker 00:
Also, the Supreme Court has said, if there's a concern about perception, there are two ways to remedy that.

[00:42:54] Speaker 00:
In Pennet, Justice Scalia said, put up a disclaimer.

[00:42:59] Speaker 00:
That is a much more reasonable option than prohibiting speech.

[00:43:03] Speaker 00:
And in Rosenberger, the court said, the best way to guard against perceived viewpoint discrimination is to be viewpoint neutral.

[00:43:12] Speaker 00:
And that is what the court should rule here, is that the government has created a forum for member speech.

[00:43:18] Speaker 00:
It has welcomed a diverse and expansive collection of art, as Judge Katz has pointed out.

[00:43:26] Speaker 00:
Every topic imaginable is covered by these paintings.

[00:43:29] Speaker 00:
You have racism, family, immigration, violence, history, policing, police brutality.

[00:43:38] Speaker 00:
David's painting was not the only painting that arguably touched on that subject.

[00:43:42] Speaker 00:
And yet what we have here is the singled out exclusion of one painting on the basis that it offends.

[00:43:52] Speaker 00:
The court has recently reaffirmed again in Matal, giving offense is a viewpoint, and it is protected by the Constitution.

[00:44:01] Speaker 04:
Are there further questions?

[00:44:02] Speaker 00:
Thank you.

[00:44:03] Speaker 04:
We'll take a matter under submission.

[00:44:05] Speaker 04:
While the next case moves up, if you give us a brief recess.