Boyd Tinsley, John Grisham, the late George Garrett, and Dahlia Lithwick at the dedication ceremony for the free speech wall in 2006
The "pretty flower."
Photo courtesy Kevin Cox
Did the City recently violate the First Amendment that its own free speech monument was designed to honor? A prominent constitutional attorney thinks so.
Last week, a rather Picasso-esque image of an erect phallus protruding from a nude female form covered the words of the First Amendment on the wall, and beside it an editorial advising people to "f**k the cops" lingered for several days. However, a complaint from a citizen prompted city officials to remove the sexual image.
"It’s one of at least three lewd images we’ve dealt with in the last two weeks," says City Manager Maurice Jones, who admits he asked a city parks and rec crew to remove the image after the citizen complaint. "I asked to have this image erased because of the graphic nature of the drawing."
However, when City officials endorsed the construction of the the community chalkboard and podium several years ago, they should have expected this, according to Constitutional scholar John Whitehead.
"Now, if the artist wanted to sue," says Whitehead, who runs a civil rights group called the the Rutherford Institute, "he or she would have a case."
Indeed, Josh Wheeler, executive director of the Thomas Jefferson Center for Free Expression, which built the wall in 2006, explains that the Center cleans the wall twice a week for practical purposes, but that the City, i.e. the government, is constrained by the First Amendment from removing messages there simply because they do not like the message.
Apparently, Jones didn't get the memo.
"If a city employee was ordered to take down an image, that action potentially raises a First Amendment issue," says Wheeler, adding that he'd been assured by city officials that they have no policy regarding offensive monument messages.
"What occurred here appears to have been a mistake," Wheeler says.
However, it may be a mistake that's been repeated.
"We don’t have a general policy concerning the removal of these types of images, although I believe we have responded to complaints in the past," says Jones. "In this case, the decision was made by me."
Charlottesville resident Kevin Cox, who walks by the wall on his way to work, also contends that the city violated the First Amendment– even though he was the one who complained about the image.
Cox has been a vocal critic of the wall, which he characterizes as a "glorified bathroom stall." He alleges that if he were to stand on the Mall with a drawing of a penis, or hold up a sign during a city council meeting that said "f**k the police," there's a good chance he'd be hauled off by the police.
Some time ago, citizen Cox armed himself with a toilet brush and began removing bawdy images on the part of the wall engraved with the First Amendment's text. Cox called on the TJ Center to somehow protect the engraved words, but Wheeler– while noting that citizens can remove anything– decided not to intervene.
"The purpose of the First Amendment is to protect the minority against the majority," says Whitehead, "exactly the kind of people who put up lewd stuff like that." Cox, however, insists that the wall trivializes the precious right to free speech.
"It's a failure in design, use, and management," says Cox. "It does not educate and provide a forum for meaningful expression."
Cox cites the recent jab at the police and an image of a five-foot phallus he recently saw drawn on the bricks.
"What does that say to tourists about our city when they visit the Mall?" asks Cox. Jones, too, says he found what was written on the wall "highly disrespectful."
While Whitehead and Cox might agree that the City violated the First Amendment, Cox thinks the incident makes the City and the TJ Center look like hypocrites for endorsing a bad idea, while Whitehead thinks it amounts to government censorship of a good one.
For Whitehead, the wall captures the true meaning of free speech: free, messy, provocative, controversial, and available to anyone. For instance, he thinks the recent jab at the police is a sign that the wall is functioning as intended.
"It's either a free speech wall or it isn't," says Whitehead. "If they're going to start censoring it, they should just bulldoze it."
Whitehead suggests there's a big difference between the wall and council chambers: the wall was officially designated to facilitate free speech.
"People like myself, Mr. Cox, or Mr. Jones might have no reason to be angry with the police," says Whitehead, "but others might have very legitimate reasons for hating the police."
And as for sexual images, Whitehead points out that art museums around the world are filled with them.
"If people don't like the images," advises Whitehead, "they should just turn away."
"That's the fun and risk of the wall," says City Councilor Holly Edwards, who takes a philosophical approach to the controversy. "It's a blessing and a burden."
While Edwards wants people upset by such images to be acknowledged, she points out that these drawings are a larger reflection of where a person is at that moment.
"No one can control that," she says. "Each drawing has to be judged on its own merit.
"If I was walking past with my 15-year-old twin girls, I would say, "Oh my, that drawing is sexist and inappropriate," continues Edwards, "and we would have a discussion about empowering women. But if I walked past with my 5-year-old twin girls I would say, "Oh my, what a pretty flower, and we would have a completely different discussion about art and being creative."