Circuses.com > Campaign Updates > ACLU Goes to Court to Protect PETA's First Amendment Rights

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.
501 Front Street
Norfolk, VA 23510
757-622-7382

ANTHONY GITTENS
Executive Director
District of Columbia Commission on the Arts and Humanities
410 8th Street, N.W., 5th floor
Washington, D.C. 20004
202-724-5613

THE DISTRICT OF COLUMBIA
c/o D.C. Corporation Counsel
441 4th Street, N.W.
Washington, D.C. 20001
202-727-6295

COMPLAINT

(Violation of First Amendment rights;
Declaratory and Injunctive Relief and Damages)

Introduction

This case arises out of the defendants’ rejection of plaintiff’s "sad circus elephant" design for inclusion in a public art display. That refusal was based on the viewpoint expressed by the design, as evidenced by defendants’ acceptance of an otherwise-similar "happy circus elephant" design for inclusion in the same display. Therefore, regardless whether the display is a limited public forum or even a non-public forum, defendants’ action violated plaintiff’s rights under the First Amendment.

Plaintiff seeks a declaration that its rights were violated, and an injunction ordering defendants to include its sad circus elephant design in the display. Plaintiff also seeks nominal damages for the loss of its First Amendment rights, or such actual damages as it may prove at trial.
Jurisdiction and Venue

1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question). Plaintiff brings this action under 42 U.S.C. § 1983 and also seeks relief authorized by the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2002.

Parties

3. Plaintiff People for the Ethical Treatment of Animals, Inc. ("PETA"), is an international nonprofit corporation organized under the laws of Virginia, with headquarters in Norfolk, Virginia. PETA was founded in 1980 and operates under the principle that animals are not ours to eat, wear, experiment on, or use for entertainment. PETA and its more than 750,000 members and supporters are committed to ameliorating the suffering of animals and ensuring their humane treatment. PETA educates policymakers and the public about animal abuse and promotes an understanding of the right of all animals to be treated with respect.

4. In accordance with its mission, one of PETA’s campaigns involves educating the public about the mistreatment, physical abuse and mental torment of elephants and other animals in circuses. In PETA’s view, the colorful pageantry of circuses disguises the fact that elephants and other animals used in circuses are unhappy, deprived and broken animals, often captured from their native lands by force, separated from their families and all that is natural and pleasurable for them, and forced to perform uncomfortable, confusing and often painful acts over and over again under threat of thrashings with a bull hook. PETA believes that circuses would quickly lose their appeal if the details of the animals’ treatment, including the constant shackling in leg chains used to subdue elephants, the unsanitary and unhealthful conditions in railroad boxcars and damp barns where many contract tuberculosis, the intense beatings over prolonged periods of time that are routinely used to train them, and the conditions of their eventual disposal became widely known.

5. Defendant Anthony Gittens is the Executive Director of the District of Columbia Commission on the Arts and Humanities (the "Commission"), which is an agency of the District of Columbia government. Defendant Gittens is sued in his official capacity only.

6. Defendant District of Columbia is a municipal corporation created by Congress pursuant to Article I, Section 8 of the Constitution of the United States.

Facts

7. In 2001, the Commission decided to sponsor a public art project in Washington, D.C., under the title "Party Animals." The project consists of 100 polyurethane elephants and 100 polyurethane donkeys, each approximately 4’6" tall and 5’ long, decorated in a variety of ways. The animals are to be displayed at various places in the District from the spring of 2002 until the fall of 2002, when the objects are to be auctioned at a "Raucus Caucus Auction." Proceeds of the auction are to be used for future Commission grant programs. The display was ceremonially launched on April 23, 2002, but as of the filing of this complaint most of the animals remain housed on the premises of the old Woodward & Lothrop department store at 1025 F Street, N.W.

8. The elephants and donkeys have been decorated not by the Commission, but by members of the public, both individuals and organizations. As the Commission presented the Party Animals project to the public, there were two separate avenues through which a person’s or organization’s design could become part of the display.

9. First, the Commission issued a Call to Artists in the fall of 2001. Artists were invited to submit up to three "design concepts," and a Selection Committee, assembled by the Commission, chose the winning designs. The selected artists were provided with polyurethane animals to decorate and return, along with a $1,000 honorarium and $200 for materials and supplies.

10. Second, the Commission accepted designs outside of this general artistic competition from individuals or organizations who paid $5,000 or more to be high-level sponsors of the Party Animals event. There are four different levels of event sponsorship. For a payment of $2,000 or $3,000, a person can become a "Governor" or a "Senator," respectively. Those sponsors can choose the animal they wish to sponsor from among the designs that were already chosen by the Selection Committee, and a "Senator" can also have its animal placed in a prime location. For a payment of $5,000 or $20,000, a person can become a "President" or a "Founder," respectively. At these levels of financial support, a sponsor is not limited to the designs already chosen by the Selection Committee, but may designate its own artist and submit its own design. These high-level sponsors are also entitled to prime locations for the display of their donkeys or elephants.

11. In its Call to Artists, the Commission set out the criteria for Party Animal designs. "The Party Animals design criteria calls [sic] for original and creative designs and does [sic] not call for or allow direct advertising of any product or service, a company’s name, or social disrespect. There will be restrictions against slogans and inappropriate images."

12. When PETA learned of the Party Animals event, it decided to become a sponsor at the "President" level so that it could choose its own artist and submit its own design in furtherance of its goal of educating the public about the treatment of elephants in circuses.

13. PETA timely submitted to the Commission a sponsorship package and a check for $5,000. The Commission’s Project Manager, Alexandra MacMaster, confirmed to PETA by telephone that it was signed up to be a sponsor of the project. On March 14, PETA informed Ms. MacMaster of its top three choices for the location of its elephant from among the locations that were then available.

14. On March 21, 2002, PETA faxed to Ms. MacMaster a sketch by Harry Bliss, a cartoonist for The New Yorker, to give the Commission a general idea of its design concept.

15. On March 22, Ms. MacMaster informed Mr. Patrick McVicker, PETA’s Special Projects Coordinator, that PETA’s design had been rejected on the ground that "the Commission is not looking to make any statements." Ms. MacMaster suggested that Mr. McVicker contact defendant Gittens, the Commission’s Executive Director, if he wished to pursue the matter further.

16. On March 25, Matthew Penzer, an attorney for PETA, spoke with defendant Gittens. Mr. Gittens stated that PETA’s design had been rejected not because of the content of its message but because it had a message "at all." He said that all designs with messages had been rejected, regardless of the message’s content. That same day, Mr. McVicker asked Ms. MacMaster to provide in writing the reasons for the Commission’s rejection of PETA’s draft design. She refused to do so. PETA has never received any written notification or explanation of the Commission’s action.

17. Many of the donkey and elephant designs in the Party Animals display do, in fact, convey messages. For example:

— One elephant displays dozens of editorial cartoons by Pat Oliphant, many quite critical of various politicians.

— Another elephant shows children of different skin colors and bears the slogan "Our differences make us strong." Similarly, a donkey shows children of different colors and bears the slogan "We are Colorblind." An elephant bears the slogan "World Peace" on its chest.

— Another elephant displays the lyrics to "America the Beautiful" and handshakes between pairs of black and white hands.

— A donkey entitled "Profiles in Courage - A Tribute to Heroes," shows a police officer, a firefighter, a construction worker, a nurse, and other heroic portraits.

— An elephant displays the lyrics to the poem "The Blind Men and the Elephant," by John Godfrey Saxe, which teaches the lessons that things are not always what they seem, that what you perceive depends upon where you stand, and that people often argue about things of which they have little knowledge.

— Another elephant, entitled "Florida Hybrid," has had its legs removed and its ears enlarged into butterfly-like wings, and is decorated with copies of the infamous "butterfly ballot" used in Palm Beach County, Florida in the 2000 presidential election. A donkey, entitled "Chad," is covered with chads, reminiscent of the same election.

— An elephant entitled "GOPoly" resembles a Monopoly game board, with spaces labeled "$ TAX CUT $" and "SOCIAL SECURITY?" and "IN GOP WE TRUST."

— A donkey is covered with dozens of sayings by politicians or about politics, including "If you want a friend in Washington, get a dog—Harry Truman"; "Verbosity leads to unclear, inarticulate things—Dan Quayle"; "Power corrupts. Absolute power is kind of neat.—John Lehman."

— An elephant entitled "Freedom" is painted with a map showing the location of the World Trade Center on one side, a map showing the location of the Pentagon on the other side, and is carrying in its trunk tags with names of the September 11 victims and a bouquet of red roses.

— An elephant entitled "We Will Win" is wearing a (painted) jersey of the Washington Flyers hockey team and a (painted) helmet of the Washington Redskins football team.

18. In an effort to have a design accepted for the Party Animals display, as well as to test whether its initial design had been rejected because of its viewpoint, PETA submitted two new elephant designs to the Commission on April 3. In a cover letter, PETA stated: "in light of the rejection of our previous design, we would ask you and the Commission to review the attached designs and advise us as to whether either of them would be accepted were we to decide on it as a final design."

19. One of the designs was a happy circus elephant, gaily decorated and wearing a blanket with the word "CIRCUS" on its side, and with a smile on its face. A copy of this design is attached hereto as Exhibit A. The other design was a sad circus elephant, similarly decorated but with a frown on its face, a shackle on one leg, a trainer poking it with a bull hook, and a tear running down from its eye. A copy of this design is attached hereto as Exhibit B.

20. On April 5, the Commission informed PETA by telephone that the happy circus elephant was accepted for the exhibit. The Commission refused to accept the sad circus elephant.

21. The Commission’s action in approving the happy circus elephant design and rejecting the sad circus elephant design was based upon the content of the message conveyed by the two designs. Specifically, the Commission was willing to accept an elephant whose design reflected the viewpoint that circus elephants are happy (and presumably well treated), but was unwilling to accept an elephant whose design reflected the viewpoint that circus elephants are mistreated and unhappy.

22. On April 9, an attorney for PETA contacted an Assistant D.C. Corporation Counsel to discuss the Commission’s actions. On April 16, the Corporation Counsel’s office informed PETA’s attorney that the Commission would now accept the sad elephant, but only if the portion of the design showing the trainer poking the elephant with a bull hook was eliminated.

23. The reason given for requiring the elimination of the trainer and bull hook was that they presented structural, maintenance or safety problems. However, many other approved designs contain sizable attachments or appendages that will present equal or greater structural, maintenance or safety problems.

24. The Commission’s action in requiring the elimination of the trainer and bull hook was based upon its disapproval of or discomfort with the viewpoint conveyed by PETA’s design.

25. Believing that the elimination of the trainer and bull hook would severely diminish the sad elephant’s imagery, on April 19 PETA proposed (through counsel) a compromise to address the Commission’s expressed concerns about structural, maintenance or safety issues. PETA requested approval of a revised sad elephant without the trainer and bull hook and with the circus blanket replaced with a sign stating "The CIRCUS is coming / See: SHACKLES - BILLHOOKS - LONELINESS / All Under the Big Top." A copy of this design is attached hereto as Exhibit C. On April 22, the Commission (through counsel) rejected that design on the ground that it was not consistent with the spirit of the Party Animals display.

26. The Commission’s action in rejecting the design submitted by PETA on April 19 was based upon its disapproval of or discomfort with the viewpoint conveyed by that design. On information and belief, a design identical to Exhibit C but with a sign expressing positive views about circus elephants would have been accepted by the Commission.

27. Each of PETA’s proposed designs satisfied the Party Animals "design criteria," as published and as applied by the Commission.

Claim for Relief

28. In rejecting plaintiff’s proposed designs because of the content of their message and because of the viewpoints they convey, the defendants violated and continue to violate plaintiff’s rights under the First Amendment to the Constitution of the United States.

WHEREFORE, plaintiff requests that this Court:

A. Enter judgment declaring that defendants violated and continue to violate plaintiff’s rights under the First Amendment to the Constitution of the United States;

B. Preliminarily and permanently enjoin the defendants from continuing to violate plaintiff’s rights under the First Amendment by excluding its design from the Party Animals display;

C. Order the defendants to accept plaintiff’s April 19 proposed design (Exhibit C) and display it for the duration of the Party Animals display in one of the prime locations that PETA selected on March 14;

D. Award to plaintiff nominal damages for the loss of its First Amendment rights, or such actual damages as it may prove at trial;

E. Award to plaintiff its costs and reasonable attorneys’ fees in this action; and

F. Grant plaintiff such other and further relief as the Court may deem just and proper.