The Volokh Conspiracy - Deciding What To Exhibit:

The Green Bay Press Gazette reports (thanks to Bill Tyroler for the pointer):

A decision to pull a piece of art from a University of Wisconsin-Green Bay exhibit has spurred activism on the part of students and discussion about First Amendment issues across the campus and in the community.

The art in question is a sheet of mock postage stamps by artist Al Brandtner showing President Bush with a gun pointed at his head, captioned "Patriot Act."

Some say it advocates assassination. Others say it's free expression.

UWGB Chancellor Bruce Shepard says it's not appropriate for the school's gallery. . . .

Seems to me that a university is quite entitled to decide what material to put in its exhibitions. The exhibitions aren't public fora, open to all comers; the university must pick and choose what's worth displaying, and its choice is at least in some part an endorsement.

The viewpoint of the art is, I think, a constitutionally permissible factor to consider. They needn't, for instance, put up racist paintings; neither do they have an obligation to put up works that appear to endorse assassination. (I realize that art is often ambiguous, but the university may properly infer that most or at least many viewers will interpret it as conveying a certain message, a message that the university doesn't want to promote it.)

For the same reasons, I also don't think that the university is obligated by academic or artistic freedom to include this work. (I distinguish constitutional obligations, which are the minimum that a public university must comply with, from academic or artistic freedom obligations, which may go beyond what the law requires.) The university needn't exhibit works whose views they find repugnant.

The constitutional matter is not open and shut; NEA v. Finley suggested that the government may not engage in "invidious viewpoint discrimination" even when it's funding works based on a quality judgment. I's conceivable, then, that the NEA and other government funding agencies might have an obligation to fund racist artwork, pro-assassination artwork, and the like. But NEA v. Finley didn't squarely hold this, and didn't clearly define what constitutes "invidious viewpoint discrimination"; and beyond that, it seems to me that even if the government has a duty to be viewpoint-neutral in such funding programs, it may pick and choose what it displays in its own galleries.

Finally, note that the rule is indeed different when the government funds a wide range of private speech with no quality judgment, for instance when a public university funds student newspapers, when the government gives a tax exemption to nonprofit speakers, when the government provides subsidized mailing privileges to speakers, and the like. These sorts of programs are treated as "designated public fora," and the government may generally not engage in viewpoint discrimination in such fora. But, as I noted, university-run exhibits are not such take-all-comers programs; they necessarily involve government judgment about what to include, and thus a sort of government endorsement. This justifies the government in choosing which viewpoints it wants to endorse.

	[Eugene Volokh, September 20, 2005 at 2:11pm] Trackbacks Deciding What To Exhibit: The Green Bay Press Gazette reports (thanks to Bill Tyroler for the pointer): A decision to pull a piece of art from a University of Wisconsin-Green Bay exhibit has spurred activism on the part of students and discussion about First Amendment issues across the campus and in the community. The art in question is a sheet of mock postage stamps by artist Al Brandtner showing President Bush with a gun pointed at his head, captioned "Patriot Act." Some say it advocates assassination. Others say it's free expression. UWGB Chancellor Bruce Shepard says it's not appropriate for the school's gallery. . . . Seems to me that a university is quite entitled to decide what material to put in its exhibitions. The exhibitions aren't public fora, open to all comers; the university must pick and choose what's worth displaying, and its choice is at least in some part an endorsement. The viewpoint of the art is, I think, a constitutionally permissible factor to consider. They needn't, for instance, put up racist paintings; neither do they have an obligation to put up works that appear to endorse assassination. (I realize that art is often ambiguous, but the university may properly infer that most or at least many viewers will interpret it as conveying a certain message, a message that the university doesn't want to promote it.) For the same reasons, I also don't think that the university is obligated by academic or artistic freedom to include this work. (I distinguish constitutional obligations, which are the minimum that a public university must comply with, from academic or artistic freedom obligations, which may go beyond what the law requires.) The university needn't exhibit works whose views they find repugnant. The constitutional matter is not open and shut; NEA v. Finley suggested that the government may not engage in "invidious viewpoint discrimination" even when it's funding works based on a quality judgment. I's conceivable, then, that the NEA and other government funding agencies might have an obligation to fund racist artwork, pro-assassination artwork, and the like. But NEA v. Finley didn't squarely hold this, and didn't clearly define what constitutes "invidious viewpoint discrimination"; and beyond that, it seems to me that even if the government has a duty to be viewpoint-neutral in such funding programs, it may pick and choose what it displays in its own galleries. Finally, note that the rule is indeed different when the government funds a wide range of private speech with no quality judgment, for instance when a public university funds student newspapers, when the government gives a tax exemption to nonprofit speakers, when the government provides subsidized mailing privileges to speakers, and the like. These sorts of programs are treated as "designated public fora," and the government may generally not engage in viewpoint discrimination in such fora. But, as I noted, university-run exhibits are not such take-all-comers programs; they necessarily involve government judgment about what to include, and thus a sort of government endorsement. This justifies the government in choosing which viewpoints it wants to endorse.