334 F. Supp. 3d 22
D.C. Cir.2018Background
- Julian Raven, an artist, submitted a large pro‑Trump portrait to the Smithsonian National Portrait Gallery for display around the 2017 inauguration; Gallery director Kim Sajet declined to consider it and Acting Provost Richard Kurin concurred.
- Raven alleges the rejection was politically motivated and sued Sajet and Kurin in their personal capacities under Bivens, asserting First Amendment and Fifth Amendment (due process/equal protection) violations and seeking declaratory, injunctive, and monetary relief.
- Raven initially withdrew FTCA claims for lack of administrative exhaustion, later sought leave to amend to reassert them after receiving a final administrative denial.
- Defendants moved to dismiss under Rule 12(b)(6) and opposed amendment as futile. Raven proceeded pro se; court construed pleadings liberally but applied the usual plausibility standard.
- The Court held the Smithsonian is a government actor and that museum selection of artwork is government speech; therefore the First Amendment’s Free Speech Clause does not constrain the Gallery’s curatorial choices.
- The Court also held Raven had no protected property or liberty interest in having his work accepted or a right to a particular appeals process, and his FTCA tort claims (fiduciary breach, negligent/intentional infliction of emotional distress) would fail under D.C. law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Smithsonian/Gallery decision is government speech subject to First Amendment constraints | Raven: rejection was viewpoint‑discriminatory and thus violated free speech | Defs: Smithsonian is a government entity and choosing what to display is government speech, not private forum regulation | Held: Gallery art selection is government speech; First Amendment does not restrict those editorial choices |
| Whether Raven had a due‑process property/liberty interest in consideration or an appeal | Raven: had entitlement to fair, nonbiased consideration and appeal rights | Defs: statute and practice give the Gallery discretion; no entitlement exists | Held: No protected property or liberty interest; due process claim fails |
| Whether Raven states an equal‑protection (class‑of‑one) claim | Raven: intentionally treated differently (political bias), citing disparate acceptance of Obama pieces | Defs: selection is discretionary, permissive statutory standard; no legal constraint to treat similarly | Held: No enforceable legal right to selection; equal‑protection/class‑of‑one theory fails |
| Whether Bivens damages or FTCA tort claims are available | Raven: seeks money damages (Bivens) and later FTCA tort relief | Defs: (1) constitutional claims not cognizable under First/Fifth here; (2) qualified immunity; (3) FTCA claims fail under D.C. tort law; amendment futile | Held: Bivens damages unavailable/new context; defendants entitled to qualified immunity; FTCA amendment denied as futile because pleaded torts fail under governing law |
Key Cases Cited
- LeBron v. Nat'l R.R. Passenger Corp., 513 U.S. 374 (governmental control can render an entity subject to First Amendment constraints)
- People for the Ethical Treatment of Animals v. Gittens, 414 F.3d 23 (D.C. Cir. 2005) (museum/arts commission selection of exhibits is government speech)
- Crowley v. Smithsonian Inst., 636 F.2d 738 (D.C. Cir. 1980) (Smithsonian treated as government actor for First Amendment purposes)
- Summum v. Pleasant Grove City, 555 U.S. 460 (government speech doctrine and tests for forum vs government speech)
- Walker v. Texas Div., Sons of Confederate Veterans, 135 S. Ct. 2239 (government speech factors: historical use, public perception, editorial control)
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (Bivens framework for implied damages remedy)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard for plausibility)
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (discretionary government benefits do not create property entitlements)