Artist Has Legal Tools to Fight PC Mural Destruction; Statute, Constitution, and Executive Order Can Help Protect It
An Artist Seeks To Protect His Mural From Destruction
WASHINGTON, D.C. (December 4, 2020) - An artist seeking to protect his mural depicting the Underground Railroad from destruction, because of complaints that it allegedly propagated negative stereotypes about Blacks, has several legal weapons he could use, says public interest law professor John Banzhaf, who helped defend another artistic mural from being destroyed.
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The artist, Samuel Kerson, has filed a law suit seeking to stop the Vermont Law School from painting over his two murals following complaints from students that the work, and the school's choice to endorse it, propagated negative stereotypes about Black bodies.
The legal action was brought under the Visual Artists Rights Act, a statute that protects art works of "recognized stature" from destruction or mutilation. But, says Banzhaf, the suit could be strengthened by adding a quasi-constitutional claim.
When the Los Angels Unified School District was preparing to paint over a mural created as an homage to the Coconut Grove, simply because some Korean groups claimed that the rays radiating from behind Ava Gardner's face remind them of the imperial Japanese battle flag, Banzhaf suggested a First Amendment defense.
Banzhaf, a constitutional scholar, argued that any such action would almost certainly violate the rights such artistic works, and those who wish to view them, enjoy under the First Amendment's freedom of speech and expression.
Having once chosen to have the mural created, no state or local governmental body can suddenly decide to suppress this form of free speech based upon its content and message unless there is a compelling governmental interest being served, and the remedy is the least restrictive alternative available, says Banzhaf.
Although the Vermont Law School is private, courts have often read schools' written guarantees of free speech and academic freedom to incorporate the protections of the Constitution's First Amendment.
In the Vermont case, the artist might also wish to file a formal complaint under President Donald Trump’s Executive Oder 13864. Section 2(a) of the order requires “compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.”
Violators risk a federal investigation, and possible loss of federal funding, says Banzhaf, noting that such a complaint could help pressure the school not to yield to political correctness complaints regarding the mural which apparently was created to honor the Underground Railroad and those involved with it.