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An exhibition in Washington (state) that included art by a number of Native Americans, including Leonard Peltier, has provoked an outcry that may have Constitutional dimensions that went unconsidered. Peltier is a controversial Native American activist who was convicted of murdering in 1975 two FBI agents, Jack R. Coler and Ronald A. Williams. His conviction has long been a Rorschach Test for responses to Native American activism and the federal government's response—Peltier has strenuously insisted he is innocent, and the FBI has adamantly maintained he was properly convicted. This has now raised its head in the realm of the public display of art, and whether the government may, or should discriminate among artists. After an outcry about the inclusion of Peltier's art by a number of current and retired law enforcement officials, the Washington Department of Labor and Industries has announced that it will remove Peltier's paintings from the display that marked Native American Indian Heritage Month there, and has apologized. Yet regardless of one's opinion if Peltier's guilt or innocence, the government has stepped in a First Amendment quagmire when it made a public forum available for expression and then removed the expressive work of only one person because of who he is. The First Amendment, after all, acts to protect expression regardless of popularity, indeed, particularly so. It is hard to argue that his work was removed for any of the reasons that courts generally permit restrictions on speech in the various kinds of public forums. It remains to be seen whether Peltier will object on those grounds.

The full story of Peltier's notoriety has been the subjects of books and movies, but a quick overview will suffice to contextualize the current dispute over his art. Peltier was originally from North Dakota, of Lakota Sioux and Chippewa, descent, among others. After living in Seattle briefly, Peltier became involved with a number of causes championing Native American rights, and joined the American Indian Movement (AIM), returning to the Pine Ridge Reservation in South Dakota in around 1973. AIM quickly became one of the most prominent Native American activist groups, and the source of considerable controversy itself. AIM is best known for the occupation of the offices of the Bureau of Indian Affairs in 1971, seizing the Mayflower replica in Boston, occupying Mount Rushmore, and the armed occupation of the Wounded Knee historic site in the Pine Ridge Reservation in 1973 by the self titled Guardians of the Oglala Nation (GOON). Peltier was in jail on another charge at the time. The Wounded Knee event was followed by a period of intense violence within AIM, during which dozens of its members were murdered.

Wounded Knee © 1997 Nicholas M. O'Donnell

It was during this time that Peltier again returned to Pine Ridge. Pine Ridge is a place of intense and tragic beauty, no place more so than Wounded Knee (I took the picture above there in 1997). The shootout that killed Coler and Williams occurred on June 26, 1975. Peltier admitted shooting at the agents who were killed, but denied actually firing shots that hit them (they were shot at close range). Peltier was sought after events that included the recovery of Coler's handgun from a car that Peltier was driving and an AR-15 shell casing. Peltier fled to Canada, was extradited, and tried for murder in Fargo, North Dakota. Despite later disputes about the ballistic evidence offered and alibis presented by Peltier (and witnesses that placed him at the shooting who later recanted), Peltier was convicted and sentenced to two life terms. Those convictions have been upheld in a variety of appeals, and Peltier's parole has always been denied. He is presently incarcerated in Coleman Federal Correctional Facility in Coleman, Florida.

Not surprisingly, the question of Peltier's guilt has been a hot button issue since he was convicted. Law enforcement officials are incensed at the notion that there is any dispute, while Peltier's supporters argue that the circumstantial case was based on deeply flawed foresensic evidence.

No one seems to have thought of any of this, remarkably, when Peltier's paintings were included in the Washington exhibit. After making the connection, retired FBI agent Ray Lauer gave an interview to the local television in which he called Peltier a "thug" and "an unrepentant cop killer." The National Retired Agents Association also formally complained.

A spokesperson for the Washington agency responded that the department "felt bad" and that the exhibition was not meant as an endorsement of Peltier's cause. In response to the complaints, Peltier's paintings will be removed.

Here is the problem: the government has a right to display, not display, or even destroy, art that the government owns. A case in recent years involving a mural in a government office in Maine underscored the point: when Maine's governor decided that he disliked the pro-labor message in a mural, lawsuits to stop him from doing so were unsuccessful because the government has the right to speak, or not to speak, a particular message. A choice to make or withdraw approval for a particular expression, whatever one thinks of it, does not infringe the free expression or speech of anyone else.

This is entirely different, however. The Maine mural belonged to the government. The Washington agency opened its doors to private individuals to showcase their expressive content. This is what First Amendment lawyers call a "forum," and what kind of forum it is drives many First Amendment cases. First, there are "traditional public forums." Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. These forums enjoy the strongest First Amendment protections. The government may only impose content-neutral restrictions as to time, place, and manner of speech (only during daylight hours, no amplification, etc.), it may not engage in viewpoint discrimination (no pro-war speech, no anti-war speech). Any restriction of speech in such a forum will be reviewed with strict scrutiny and will survive only if it serves a compelling state interest.

Next, there are "designated public forums," in which the government opens public property for expression that is not ordinarily a forum for public expression. The government may close a designated public forums at any time, but so long as it is available, it must be content neutral in the same manner as a traditional forum.

Lastly, government may limit access to a "limited public forum" to certain kinds of expression or speech. Even though the government may discriminate against certain classes of speakers, it still may not discriminate based on viewpoints.

If the Native American Heritage exhibition is anything other than a limited public forum, then removing Peltier's art from the show seems to be a cut and dry First Amendment violation. If the agency is a traditional public forum (probably not), there is no question that removing one artist is not a neutral time, place, or manner restriction. If the show were a designated public forum, the government's only recourse is to close the whole show so that there is no speech, not remove one speaker. So in either case the government's actions could not survive review, certainly not under strict scrutiny.

What about if the show is a limited public forum? It's plausible the government could argue it was restricting one class of speakers—convicted murderers—so long as it applied that restriction evenly. Yet the only "class" of speaker in the show on its own terms was that of Native American artist. Peltier is clearly still that regardless of what happened at Pine Ridge in 1975. Inventing the category of restricted speaker for exclusion only after the fact does not pass muster.

If one thinks of a similar hypothetical, the problem is easy to see. Assume Government Agency X wanted to honor Veterans Day, and put up an exhibition of paintings by veterans. After one of the paintings arouses controversy as either critical or supportive of some military decision, the government removes the painting but does not restrict any of the other veterans' works. In colloquial terms it is flagrant censorship. In First Amendment terms, it is viewpoint discrimination, and it is not allowed.

Peltier is, to many, an unsympathetic figure, particularly with law enforcement. Their revulsion at celebrating Peltier is not hard to understand. To many others he is a symbol of prosecutorial excess. Whatever one's opinion about him, however, arguably the most consistent thread in First Amendment case law is that the right exists precisely to protect those with whom the government disagrees or finds unfavorable. From here it looks like the State of Washington has neglected to do just that. Whether anything comes of it will be interesting to watch.

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