The opinion of the court was delivered by: LOZANO
Plaintiff, John Sefick, has created a sculpture of the Honorable Brian Barnett Duff of the Northern District of Illinois. Sefick would like to use the lobby of the Dirksen Federal Building in Chicago to display the piece. The Dirksen Building contains federal courts, including the courts of the Northern District of Illinois. Sefick is suing three present or former administrators of the General Services Administration ("GSA") in their official capacities, alleging that they violated his First Amendment rights by denying him permission to display his work. The case was assigned by designation to the undersigned, a judge of the Northern District of Indiana, Hammond Division.
Defendants assert that they were entitled to reject Sefick's sculpture because the Dirksen Building lobby is a nonpublic forum and their decision was reasonable and not viewpoint discrimination. In addressing Defendants' summary judgment motion, the Court ruled that the lobby is a nonpublic forum. However, the issues of reasonableness and viewpoint discrimination were left for trial.
The parties agreed to a bench trial. At the request of the parties, the trial was held in Chicago at the Dirksen Building.
Sefick seeks only an injunction allowing him to display his sculpture; he does not seek damages. No one has contested that Sefick's sculpture constitutes expression that is generally protected under the First Amendment.
Sefick is a retired federal probation officer who worked with the judges of the Northern District of Illinois, including Judge Duff. He is also an artist who creates sculptures that he intends to be satirical and that feature prominent people who are currently in the public eye. Sefick prefers to place his sculptures in environments where they will have maximum impact, and he has placed sculptures in federal buildings before. Sefick applied to have these past sculptures and his current sculpture displayed under the federal Public Buildings Cooperative Use Act ("Act").
Past examples of work Sefick has placed in federal buildings include a piece depicting the actor Telly Savalas as a "Toxic Avenger." With GSA's permission, Sefick placed this piece in the Metcalf Federal Building, which houses EPA offices. Also with GSA's permission, in February 1995, Sefick placed a previous sculpture of Judge Duff in the Dirksen Building lobby. That piece depicted the judge on the bench "tongue lashing" someone. Then, a mannequin representing the model Cindy Crawford entered the room holding a briefcase and wearing a miniskirt. An audio tape portrayed Judge Duff as speaking rapidly. The mannequin of Crawford acted as if "standing her ground," with a look of, "Who is this guy?" (Ex. 3)
The sculpture involved in this case consists of a life-sized rendering of Judge Duff sitting astride a white horse. The horse is not natural in appearance or proportion. It has an elongated neck, eyes looking upward with exaggerated whites, legs without visible joints, and squared-off shoulders, haunches, and chest. Judge Duff appears to be smiling and is holding the reins. The piece is eight feet tall and takes up floor space of about five feet by eight feet. It weighs about 400 pounds.
Sefick actually applied twice to display two different versions of this sculpture in the Dirksen Building lobby. As first proposed in August 1996, the sculpture incorporated a tape recording that identified the rider of the horse as Judge Duff and contained a voice representing Judge Duff's commenting on his rulings being overturned "upstairs." Sefick applied in writing to display the sculpture for two weeks. Sefick believes that whether the sculpture could have been viewed as commenting on the relationship between a district judge and the court of appeals was a matter of interpretation. At the time of his first application and the second one described below, Judge Duff was the subject of controversy and media attention. (The evidence at trial did not say more about what kind of controversy or attention.)
First, as you are aware, there is extensive construction activity occurring in the building's lobby area. I do not want to cause the construction workers or the pedestrians in the lobby any more unwarranted obstructions than are necessary. All Applications are being critically reviewed due to the above. Title 5, C.F.R. Section 101-20.403(a)(3) serves as the basis for this denial.
The second basis for denial of your Application/Permit is contained in Title 5, C.F.R. Section 101-20.403(a)(4). I am concerned that your art exhibit, which includes an accompanying recorded message of Judge Duff may be construed as an attempt to influence judicial proceedings in either the U.S. District Court or the U.S. Court of Appeals for the Seventh Circuit.
At the time of this letter, significant construction activity was indeed occurring in the Dirksen Building lobby. New glass was being installed, a two-year project that disrupted the entire lobby. Panes of glass twelve feet tall were being moved around the lobby. At different times, different areas of the lobby would be the focus of the construction. The workers in the lobby numbered ten to fifteen. Also, safety shields were placed by the elevators to direct persons to magnetometers.
Gardner believed that placing Sefick's display amidst the construction activity would endanger the safety of construction workers and pedestrians in the lobby, or inconvenience the workers and pedestrians, or both. The "critical review" the denial referenced meant that Gardner paid special attention to how long a display would last, and whether the sponsor of the display was a tenant or nontenant of GSA. Gardner believed that tenant displays were less problematic because it was easier to get a tenant to move or reschedule a display on short notice if needed to accommodate the construction.
Regarding influence of judicial proceedings, Gardner's beliefs were less concrete. When he first reviewed Sefick's application, he had a vague sense that the sculpture might cause problems in some proceeding because Judge Duff had been the subject of controversial media attention. So, Gardner referred the application to legal counsel. Counsel actually wrote the denial letter. Gardner reviewed the letter, found it agreeable, and signed it. However, Gardner himself did not think through the "influence" rationale in any detail.
Gardner did not know what message the sculpture was intended to convey. Specifically, he did not know if the sculpture was positive or negative toward Judge Duff, or positive or negative toward the court of appeals.
Besides the reasons in the letter he signed, Gardner also thought the sculpture might present a security risk in light of the April 1995 bombing of the Murrah Federal Building in Oklahoma City. However, he did not have a firm sense of just how the sculpture would threaten security.
Within days, Sefick appealed Gardner's decision to Defendant, Robert Duffer, another GSA property manager. In his appeal letter, Sefick stated that he believed he could work with Gardner to find a suitable place in the lobby where the sculpture would not interfere with pedestrian traffic or the construction workers' activities. Sefick also stated that he did not understand how the sculpture could be viewed as an attempt to influence judicial proceedings. Sefick added as follows: "The A.C.L.U. has had contact with Paul Maxse, Esq., Office of Regional Counsel, General Services Administration on my behalf concerning first amement [sic] rights pertaining to these lobbies. I hope this deniel [sic] does not mark a turn around on what I believe has been an understanding." (Ex.5)
Regarding construction, Duffer was aware of the activity in the Dirksen Building lobby. Regarding influence of proceedings, Duffer knew what the sculpture depicted and what the tape would say. He did not wholly understand what message the sculpture was meant to convey. However, he did think the tape was derogatory toward a presiding judge because it suggested that the court of appeals was overturning all of Judge Duff's rulings. Duffer believed the derogatory content had a chance, albeit a remote chance, of influencing proceedings. He thought that a juror walking through the building might see the sculpture and not know who ...