Sculpting a warped view of the First Amendment

Thursday, July 2, 1998

Judge Rudolpho Lozano’s decision in Sefick v. Gardner earlier this year probably will never be reviewed by the Supreme Court. Nor will it be studied by law students or analyzed by their professors. It may not even be relied on by other courts ruling in similar cases.

The decision, however, is a telling reminder of how badly government bureaucrats can butcher the First Amendment and of how far judges will stretch the law to cover for bureaucratic incompetence. The ultimate significance of Sefick is not that it is newsworthy, but that it isn’t—that this bungling of important First Amendment rights occurs every day in every government building across the country.

Sefick is about whether a sculpture could be displayed in the federal courts building in Chicago. Artistically insignificant, the sculpture was notable only because its subject was a controversial federal judge sitting in the same building. The challenge to the bureaucracy was to determine whether the First Amendment required that the display be permitted.

The sculptor, John Sefick, is a retired federal probation officer. Over the years, Sefick has used the little-known Public Buildings Cooperative Use Act to gain access for his sculptures to federal office buildings. This act permits individuals and organizations to conduct a number of “cultural, educational, or recreational” activities in the lobbies and auditoriums of public buildings. Seriousness apparently is not a relevant criterion. One Sefick sculpture, for example, depicted Telly Savalas as a “Toxic Avenger.” Pursuant to the act, Sefick was permitted to display this sculpture in the Metcalf Federal Building in Chicago, which houses the offices of the Environmental Protection Agency.

One of Sefick’s favorite subjects has been Brian Barnett Duff, a now-retired federal judge who sat in Chicago’s Dirksen Federal Building. During his tenure, Duff developed a reputation as independent, stubborn and not overly concerned about whether his decisions would be reversed on appeal.

In early 1995, Sefick created a sculpture depicting Judge Duff on the bench, chastising someone. The sculpture also included a mannequin of model Cindy Crawford, wearing a miniskirt and holding a briefcase. An audiotape simulated the sound of Duff speaking rapidly. As Judge Lozano described it: “The mannequin of Crawford acted as if [she were] ‘standing her ground,’ with a look of, ‘Who is this guy?’” Pursuant to the act, Sefick asked to display this sculpture in the Dirksen Building lobby. The government’s General Services Administration granted the request without comment or controversy.

A little more than a year later, Judge Duff was in the news for receiving a strong verbal spanking from the 7th Circuit Court of Appeals, which also sits in the Dirksen Building. Sefick then created another sculpture, this one a life-sized rendering of Duff sitting on a white horse. According to Lozano, the horse was “not natural in appearance or proportion.” Duff, however, apparently was recognizable, smiling and holding the reins. The sculpture was 8 feet tall, took up floor space of approximately 5 feet by 8 feet and weighed 400 pounds.

Like Sefick’s first sculpture of Duff, this one included a tape recording. In this recording, Judge Duff was identified and was heard to comment on his rulings being overturned “upstairs.” Later, during the trial, Sefick stated that it was “a matter of interpretation” whether or not the piece could have been viewed as a comment on the relationship between a district court judge and a court of appeals.

This time the GSA denied Sefick’s request to display his sculpture in the Dirksen Building lobby. Having already allowed one sculpture of Duff, however, the GSA could not base its decision on an obvious and reasonable rationale — that the act does not require the government to open its lobbies to commentary on sitting federal judges, whether tribute or tirade. The GSA thus was forced to fall back on more bureaucratic reasons to justify its denial.

First, the GSA claimed that the sculpture would interfere with construction work being performed in the lobby. It did not, however, explain how a stationary statue would interfere. The GSA also had a difficult time justifying this rationale when Sefick pointed out that the agency had allowed a health fair, a computer expo, a blood drive and a five-day children’s art exhibit in the lobby during the time that Sefick wished to display his sculpture.

Second, the GSA asserted that the sculpture was not permitted under the act because it could influence or impede a pending judicial proceeding. Again, however, the GSA could not explain its own rationale. The first GSA employee to deny Sefick’s request testified that he had relied on legal counsel for this rationale and that he had not personally thought about it in any detail. Moreover, the employee was unsure what the sculpture meant and whether it was favorable or critical concerning Duff.

The GSA employee who denied Sefick’s appeal also did not understand the sculpture, but he concluded that the tape recording was derogatory of Duff. At trial, however, this employee had difficulty explaining how a derogatory tape recording could influence or impede a pending judicial proceeding. The rationale was even further weakened when Duff retired during the GSA’s review of Sefick’s request. To complete the rationale’s implosion, Sefick offered to change the recording to play “Don’t Cry for Me, Argentina,” which even Judge Lozano conceded lent a “resignation theme” to the piece.

Third, the GSA concluded that the sculpture could create a security risk in the lobby, although this rationale was included in neither its denial of Sefick’s request or its denial of his appeal. Despite the timing of Sefick’s request (which came on the heels of the Oklahoma City bombing), the GSA was at a loss to explain what security risk the sculpture might present, other than a dubious claim that it could increase public traffic in the lobby. The security-risk rationale was further undermined by the GSA’s decision to permit Sefick to display his sculpture in the Metcalf Building, which did not house any federal court office.

Faced with these unsatisfying rationales, Sefick filed suit, claiming that the GSA’s actions had violated his First Amendment rights. Lozano saw clearly how weak these rationales were, yet he was determined not to be the judge who allowed caricatures of sitting judges into courthouse lobbies. Of the three rationales offered, he concluded that the security justification was the strongest, even though it had not been asserted when Sefick’s request was denied the first and second times. “Actually,” Judge Lozano therefore wrote (no doubt cringing as he did so), “security was [the GSA's] largest concern with respect to Sefick’s sculpture.”

Lozano also was faced with the undoubtedly truthful testimony that the GSA employees had discussed the fact that other judges in the building were opposed to the sculpture because it embarrassed Duff. Lozano, however, stated emphatically that his decision was not based on any potential personal embarrassment to Duff. That inquiry, he rather remarkably concluded, “likely [is] not a valid concern for First Amendment purposes.” A more valid concern, he said, was a more general embarrassment to the court system, which could threaten courthouse decorum. Unfortunately for Lozano’s analysis, he was forced to concede that the GSA had not presented any evidence that it was concerned about this more general type of embarrassment.

Nevertheless, Lozano ultimately concluded that the GSA’s rationales were reasonable and that their weaknesses were not attributable to any desire to discriminate against the message in Sefick’s sculpture, whatever it was. Instead, Lozano implied, these weaknesses were attributable to rigid thinking, lazy reasoning and bureaucratic ineptitude.

This judicial deference to bureaucratic bungling of First Amendment issues is all too common. Agency explanations are accepted, no matter how weak or how inconsistent, as long as the trampling on First Amendment rights does not appear intentional or mean-spirited. Agencies need not have a good reason to limit free expression, so long as their results are not outrageous. Clumsiness and incompetence are tolerated when thoughtfulness and logic are needed. Intellectual honesty is neither required nor expected.

Unfortunately for the First Amendment, such deference seems to be showing up more rather than less. And perhaps it’s asking too much to expect a judge to resist that trend in a case involving Toxic Avengers, Cindy Crawford and a retired federal judge singing “Don’t Cry for Me, Argentina.” Sefick, however, is hopeful that the 7th Circuit Court of Appeals will reverse Judge Lozano’s ruling.

Whether in this case or another, the judiciary at some point must begin holding the federal bureaucracy to a higher standard. Until it does so, let’s hope that the decision in Sefick remains what it appears to be: a poor but little-known decision unlikely to have much impact outside of the Dirksen Building lobby.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.