Raven v. Sajet

Citation: 334 F. Supp. 3d 22Docket: Case No. 1:17-cv-01240 (TNM)

Court: Court of Appeals for the D.C. Circuit; September 19, 2018; Federal Appellate Court

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Julian Raven filed a lawsuit against the United States and officials of the National Portrait Gallery after his portrait of then-President-elect Donald Trump was not exhibited. He alleges that the Gallery's decision was politically biased and infringed upon his First and Fifth Amendment rights. However, the court finds no legal basis for his claims. The First Amendment protects private speech and does not restrict government entities like the Gallery in making artistic decisions, while the Fifth Amendment does not entitle Raven to an exhibition consideration. Additionally, Raven's request to amend his complaint to include claims under the Federal Tort Claims Act is denied, as the defendants have not committed a recognizable tort. Consequently, the court grants the defendants' motion to dismiss and denies Raven's motion to amend his complaint.

The document also outlines the establishment of the Smithsonian Institution, created from a bequest by James Smithson in 1826 to promote knowledge. The Smithsonian, overseen by a Board of Regents, includes the National Portrait Gallery, which functions as a public museum dedicated to portraiture and statuary that honors significant figures in U.S. history. The Board has the authority to acquire art based on historical interest, artistic merit, or significance to individuals depicted.

In 2015, Mr. Raven created a prominent pro-Trump painting titled "Unafraid and Unashamed," which he sought to display at the Rockwell Museum for the 2017 Presidential Inauguration following Trump's election. After submitting a lengthy application, Mr. Raven felt dismissed during an initial meeting and later received an email from the museum stating they lacked the resources to assist him. He then lodged a complaint with Smithsonian Director Harold Closter, alleging anti-conservative bias, leading to his application being forwarded to the National Portrait Gallery. 

In December 2016, Mr. Raven contacted Gallery Director Kim Sajet, resulting in a contentious conversation where Sajet expressed various objections to the painting, including its size and perceived political bias. She ultimately stated that the application would not progress further. Following this, Mr. Raven appealed to the Board of Regents, but Richard Kurin, the Acting Provost of the Smithsonian, upheld Sajet's decision, noting that the Gallery planned to display a different portrait of Trump. 

Mr. Raven asserts that by supporting Sajet's decision, Kurin became jointly liable for her actions. He is suing both Sajet and Kurin in their personal capacities under the precedent set in Bivens v. Six Unknown Named Agents, claiming violations of his First and Fifth Amendment rights and seeking declaratory judgment, injunctive relief, and monetary damages.

Mr. Raven initially included claims against the United States and Smithsonian officials under the Federal Tort Claims Act (FTCA) in his Amended Complaint but withdrew them without prejudice after realizing the need for administrative exhaustion. Following a final denial of his FTCA claims, he sought to amend his complaint to reinstate those claims. The defendants moved to dismiss his constitutional claims and opposed his motion to amend, arguing it would be futile. Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss assesses the legal sufficiency of the complaint, requiring it to present sufficient factual content to make a plausible claim for relief. Courts must evaluate only the facts in the complaint and any relevant documents, while also considering the plaintiff's pro se status, which warrants a more lenient interpretation of the claims. 

The defendants further argued that Mr. Raven's request for injunctive relief was moot since the event prompting it—the 2017 Inauguration—had passed. However, Mr. Raven clarified that he seeks to have the portrait displayed at any time as a historical record, suggesting future dates for display. The court found that this ongoing request constituted a live controversy, thus rejecting the mootness argument.

Mr. Raven's constitutional claims are dismissed as legally insufficient. The Smithsonian, as a government entity, has the authority to express itself freely under the First Amendment, which does not restrict the Gallery's art selection decisions. The Fifth Amendment is also found inapplicable. The D.C. Circuit in Crowley v. Smithsonian Institute established that the Smithsonian is considered a government entity for First Amendment purposes, affirming its status as a federal agency under the Federal Tort Claims Act. Although the Smithsonian has a private dimension, its primary role as a national museum with significant government funding and oversight categorizes it as an "independent establishment of the United States." The Second Circuit supported this view in O'Rourke. 

While the Smithsonian is atypical among federal agencies, lacking certain authorities defined under the Administrative Procedure Act and the Freedom of Information Act, this does not negate its constitutional status. The case of Amtrak, as discussed in Lebron v. National Railroad Passenger Corporation, parallels the Smithsonian situation. The Supreme Court ruled that Amtrak, despite being exempt from federal agency status, is still part of the government for First Amendment purposes due to its creation for governmental objectives and the government's authority over its leadership. Mr. Raven argues that the Smithsonian, as a trust, is focused on knowledge diffusion rather than government objectives; however, the overarching governmental ties and purposes established by the Smithsonian's creation and operation affirm its government status for constitutional considerations.

Congress has ratified the objective of "the increase and diffusion of knowledge," granting the United States discretion in its implementation. Lebron's argument relied more on federal control over Amtrak's board than on its federal purposes. Government-created corporations are considered part of the government itself, supported by reason and precedent. Mr. Raven contends that entities in previous government speech cases were more traditional government actors, which are subject to political accountability, unlike the Smithsonian's trustees, who cannot be voted out. However, many Smithsonian Regents hold federal office and can be removed by voters, maintaining a degree of political accountability. The Smithsonian, despite its philanthropic appearance, functions as a government institution due to substantial federal funding, federally approved leadership, and its establishment via private gift and federal charter. This classification impacts Mr. Raven's speech claim, as government speech is not constrained by the First Amendment's Free Speech Clause. Government decisions regarding art patronage and display fall under this category. In the case of PETA, the D.C. Commission on the Arts and Humanities rejected PETA's art submissions, which were deemed political rather than artistic. The D.C. Circuit upheld the rejection, affirming that it did not constitute a violation of free speech rights.

The court determined that the government's selection of specific art designs is considered government speech, which is not subject to limitations under the First Amendment's Free Speech Clause. Public forum analysis and its associated scrutiny do not apply to the government as a patron of the arts, as aesthetic judgments made by the government are beyond judicial oversight. For instance, a state-owned museum curator can choose to display either Union or Confederate general busts without First Amendment implications. The court noted the complexity in distinguishing between government speech and private speech forums, referencing a three-part test used by the Supreme Court, which considers the historical context of the medium, public perception of the government as the speaker, and the government's editorial control over the speech.

The D.C. Circuit's decision in PETA effectively anticipated the Supreme Court's reasoning in related cases. The court distinguished between government speech and private expression by comparing government-selected exhibits to library books, asserting that while a library's contents do not convey a government message, the selection process itself does represent government speech. In a recent case, Pulphus, the court ruled that the removal of a painting from the Capitol, selected through a Congressional Art Competition, constituted government speech. The decision reaffirmed that the government's editorial discretion in art selection negates any First Amendment claims from the artists involved. The National Portrait Gallery's historical role in government communication through art selection further supports the application of this analysis, indicating that the public reasonably interprets the government's actions as speech.

Selected artists have a voice in the Gallery, but the government's selection process communicates that the government deems the artist's work worthy of public display. Art displayed on public property is generally viewed as government-endorsed, and the Smithsonian's Board of Regents holds significant editorial control over the displayed works. The Board can accept artwork based on various criteria, including historical interest and artistic merit. This framework undermines Mr. Raven's First Amendment claim, as his request to display his portrait was an appeal for government speech. The Gallery's rejection of his submission constituted a decision as a federal patron of the arts, and the First Amendment does not regulate such choices. Mr. Raven argues that the reasons for his rejection were arbitrary and politically biased, specifically against President Trump and his supporters. However, at the motion to dismiss stage, these allegations are treated as true, yet the Free Speech Clause imposes no constraints on government speech content, allowing for political discrimination in government-sponsored speech. The analogy to an Inauguration Parade illustrates that the government is not required to ensure balance in representation. Thus, the First Amendment does not apply to artistic selection by the government, regardless of perceived arbitrariness.

Regarding Mr. Raven's Fifth Amendment claims, which include allegations of violations of the Due Process and Equal Protection Clauses, the essential question is whether he has been deprived of a protected interest in "liberty" or "property." A protected property interest requires more than a mere desire or expectation; it necessitates a legitimate claim of entitlement. If government officials have discretion to grant or deny a benefit, that benefit cannot be considered a protected entitlement. Consequently, Mr. Raven's Fifth Amendment claims are similarly without merit.

Mr. Raven claims a violation of his due process rights, arguing that he had a constitutionally protected property right to apply for the acceptance of his portrait by the Smithsonian, which he alleges was subjected to an unfair and biased review process. However, it is established that Mr. Raven does not have a legal entitlement to a fair hearing regarding his application, as the Smithsonian's Gallery possesses complete discretion in selecting portraits under 20 U.S.C. § 75(e). The Board of Regents can acquire items based on general historical interest, artistic merit, or the significance of the individual depicted, without conferring specific rights to applicants. The Gallery could choose to reject Mr. Raven's application without justification, leading to the conclusion that his due process claim is unfounded.

Additionally, Mr. Raven asserts a violation of the equal protection component of the Fifth Amendment, claiming he was arbitrarily denied a fair hearing while others, such as art pieces celebrating President Obama, were accepted. He references the "class of one" equal protection claim, which requires proof of intentional differential treatment without a rational basis. Nonetheless, in the context of aesthetic choices made by the government, such claims are inapplicable. The Gallery is not legally constrained in its selection process, as the statute indicates the Board may choose to acquire items based on various subjective criteria, and thus, no legal protections exist regarding art applications, rendering the equal protection argument unenforceable.

Mr. Raven's claims for damages under Bivens v. Six Unknown Fed. Narcotics Agents would be dismissed even if he had established a violation of his First or Fifth Amendment rights. Qualified immunity shields government officials from civil liability for constitutional violations unless they breach clearly established rights. The Free Speech Clause does not pertain to government art decisions, and no Fifth Amendment rights are implicated, indicating the Defendants did not violate established constitutional law. Furthermore, the Supreme Court has cautioned against extending damages remedies to new contexts, and government art decisions would qualify as such a new context, making damages claims here inappropriate. Any potential remedy for constitutional violations would be a matter for Congress, not the courts.

Additionally, Mr. Raven's Motion to Amend to reinstate claims under the Federal Tort Claims Act (FTCA) would be considered legally futile. The FTCA allows claims against the United States for specific torts, but Mr. Raven's claims do not meet these criteria. His primary claim, breach of fiduciary duty, is based on the assertion that the Smithsonian operates as a trust. Although the Smithsonian serves as a trustee, it has broad discretion in managing its responsibilities, particularly regarding art selection, meaning the tort claims do not survive under District of Columbia law.

Mr. Raven alleges that the Defendants negligently inflicted emotional distress upon him. However, under District of Columbia law, establishing such a claim is challenging. A plaintiff can prove negligent infliction of emotional distress either by satisfying the "zone of physical danger test," which requires demonstrating that the plaintiff experienced serious mental distress due to being in danger of physical injury, or by showing a special relationship with the defendant that creates a risk of serious emotional distress, along with proof that the defendant’s negligence caused that distress. Mr. Raven fails to meet either criterion; his rejection from the Gallery did not place him in a "zone of physical danger," nor did his relationship with the Defendants implicate his emotional well-being sufficiently.

Moreover, even if Mr. Raven claims intentional infliction of emotional distress, this also fails. To establish such a claim in the District of Columbia, the plaintiff must show extreme and outrageous conduct by the defendant that intentionally or recklessly causes severe emotional distress. The alleged conduct must be egregious enough to be considered intolerable in a civilized society. Mr. Raven's situation, characterized as a professional insult stemming from politically biased rejection, does not rise to this level of outrageousness. Consequently, no reasonable jury could find the Defendants' actions to be beyond the bounds of decency. Thus, Mr. Raven's Motion to Amend is deemed futile and must be denied.

The Court has decided to grant the Defendants' Motion to Dismiss and deny Mr. Raven's Motion for Leave to Amend. A separate order will follow. The defendants include the United States, various officials in their official capacities, and members of the U.S. Congress, specifically Congressman Roy Blunt, all relating to the private Will and Trust of Mr. James Smithson. The Court has granted Mr. Raven's Motion for Leave to File a Surreply despite opposition from the Defendants, considering the attached brief as filed. Jurisdiction is established under 28 U.S.C. § 1331, as the case involves federal law. Mr. Raven's arguments primarily reference Mr. Smithson's will, Smithsonian statutes, and portrait acceptance standards rather than constitutional issues. Even if viewed as non-constitutional claims, they fail to state a valid claim for relief. The government has substantial discretion in accepting or rejecting paintings, as evidenced by 20 U.S.C. §§ 41, 75(e), 75b, 75d, countering Mr. Raven's assertion of being denied an appeal regarding his communication with the Board of Regents. Ultimately, there is no legal basis for appeal rights to be conferred upon Mr. Raven.