Leonard Peltier, a Native American inmate serving time for killing two FBI agents, can proceed with his First Amendment claim over the removal of his paintings from a Native American heritage forum promoted by the Washington State Department of Labor and Industries. Significantly, a federal district court judge in Oregon ruled that Peltier’s paintings were his private speech, not a form of government speech.
Peltier, who is in his 70s, was convicted for shooting and killing two FBI agents in a conflict at Pine Ridge Reservation in 1975. His trial is the subject of some controversy. Through the years, Peltier has become known for his paintings.
Was taking down artwork government censorship?
In November 2015, the Washington State Department of Labor and Industries (L & I) held a month-long Native American heritage event at its office in Tumwater. The celebration featured the display of Peltier’s artwork.
L & I received several complaints over the display of Peltier’s artwork, including from people with the FBI. L & I then removed Peltier’s artwork.
Peltier and his son, who manages an art gallery, sued L & I and some of its officials in federal court, alleging a violation of the First Amendment. L & I moved for summary judgment, contending that it could remove the artwork, because the artwork was part of the government’s event and, thus, constituted government speech. The Peltiers argued that the removal of the artwork was government censorship of private speech.
U.S. District Court Judge Ronald B. Leighton ruled on July 16, 2018, in Peltier v. Sachs that the artwork constituted private speech and that the government speech doctrine did not apply.
Government speech doctrine “susceptible to dangerous misuse”
“While the government-speech doctrine is important — indeed, essential — it is susceptible to dangerous misuse,” wrote Leighton. “If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”
The key to determining whether speech is private speech or government speech is identifying whether the government sought to promote its own message or merely facilitate private speech. In this case, Leighton reasoned that the Native American event was a forum used to promote individual, private speech.
Judge: Event constituted a public forum for dispaly of private expression
“Promotional materials for the heritage month event advertised Peltier individually, encouraging onlookers to ‘come see art by the renowned Native American artist Leonard Peltier,’ and including a link to Peltier’s website,” Leighton wrote.He concluded that there was evidence that L & I created a forum to allow the display of private expression, including Peltier’s artwork.
The individual defendants also argued that they were entitled to qualified immunity, a doctrine that shields government officials from liability unless they violate clearly established constitutional or statutory law. However, the judge rejected qualified immunity, reasoning that “[a]mple precedent holds that when the governmentdesignates a public forum for expressive activity, even if the government limits the activity to certain subjects, restricting certain speech is prohibited.”
The ruling discusses a vitally important issue in First Amendment law – determining whether speech qualifies as government or private speech. The government speech doctrine poses a dangerous threat to the First Amendment, for if speech is classified as government speech, that ends the First Amendment analysis.
Judge Leighton’s decision represents a careful consideration of these concerns over the government speech doctrine.