Serra v. U.S. General Services Admin.
| Decision Date | 27 May 1988 |
| Docket Number | D,Nos. 822,823,s. 822 |
| Citation | 847 F.2d 1045 |
| Parties | Richard SERRA, Plaintiff-Appellant, v. UNITED STATES GENERAL SERVICES ADMINISTRATION; Terrence C. Golden, Administrator, General Services Administration; William F. Sullivan, Commissioner, Public Buildings Service, General Services Administration; William J. Diamond, Regional Administrator (Region Two), General Services Administration, Officially and Individually; Dwight Ink, Former Acting Administrator, General Services Administration, Individually, Defendants- Appellees. ockets 87-6231, 87-6251. |
| Court | U.S. Court of Appeals — Second Circuit |
Jay Topkis, New York City (Leslie Urfirer Cornfeld, Paul, Weiss, Rifkind, Wharton & Garrison, and Gustave Harrow, New York City on the brief), for plaintiff-appellant.
Richard M. Schwartz, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., Richard W. Mark, Asst. U.S. Atty., New York City, Clyde C. Pearce, Jr., Gen. Counsel, Barbara G. Gerwin, Regional Counsel, Washington, D.C., on the brief), for defendants-appellees.
Before NEWMAN and KEARSE, Circuit Judges, and CEDARBAUM, District Judge. *
This appeal presents the question whether the removal of a government-owned artwork from federal property violates the free expression and due process rights of the artist. Richard Serra, a prominent American sculptor, brought the action seeking to bar the United States General Services Administration (GSA) from removing his controversial sculpture "Tilted Arc" from Federal Plaza in lower Manhattan. The District Court for the Southern District of New York (Milton Pollack, Judge) granted summary judgment against Serra on his constitutional claims. For the reasons that follow, we affirm the judgment of the District Court.
The facts and procedural history of this case are comprehensively set forth in the two opinions of the District Court, Serra v. United States General Services Administration, 664 F.Supp. 798 (S.D.N.Y.1987), and Serra v. United States General Services Administration, 667 F.Supp. 1042 (S.D.N.Y.1987). We set forth only those facts necessary for an understanding of the present appeal.
In 1979, GSA selected Serra to create an outdoor sculpture to be installed on the plaza adjacent to the federal office complex at 26 Federal Plaza in lower Manhattan (the "Plaza" or "Federal Plaza"). The sculpture was commissioned under GSA's art-in-architecture program pursuant to which one half of one percent of the construction cost of federal buildings is reserved for the funding of artworks by living American artists. Serra is an internationally renowned sculptor, known primarily for his "site-specific" work. According to Serra, a site-specific sculpture "is one which is conceived and created in relation to the particular conditions of a specific site." Site-specific sculpture is meaningful only when displayed in the particular location for which it is created; such works are not intended to be displayed in more than one place. Serra's site-specific works consist primarily of steel plates or "forgings" that are welded together to form large abstract forms. Serra's sculptures have been displayed in many prominent locations throughout the world, including the Tuilleries Gardens in Paris.
In September 1979, Serra signed a contract with GSA setting forth the terms of his commission. The contract provided that Serra would receive a fee of $175,000 for building a sculpture on Federal Plaza. The contract further provided that "all designs, sketches, models, and the work produced under this Agreement ... shall be the property of [the United States]." The contract contained no provisions restricting the Government's use of the sculpture after it was purchased.
"Tilted Arc" was completed and installed at Federal Plaza in 1981. The work is an arc of steel 120 feet long, 12 feet tall, and several inches thick. It is fabricated out of Cor-Ten steel, a material designed to oxidize naturally over time. Consequently, the work is now coated with what the artist refers to as "a golden amber patina" and what the sculpture's critics refer to as "rust." The sculpture bisects Federal Plaza. According to Serra, "Tilted Arc" is site-specific: It was designed for the Federal Plaza and is artistically inseparable from its location. Serra maintains that removing "Tilted Arc" to another site will destroy it.
The pigeons had barely begun to roost on "Tilted Arc" before the sculpture became the object of intense public criticism. GSA received hundreds of letters from community residents and federal employees complaining about the sculpture's appearance and its obstruction of Federal Plaza's previously open space. Initially, GSA took the position that critics should give the work time to gain public acceptance. However, when hostility to the work had not abated after several years, GSA agreed to hold a hearing on the possible relocation of the sculpture.
A public hearing was held in March 1985, presided over by William A. Diamond, GSA Regional Administrator. More than 150 persons spoke at the hearing, representing a wide range of constituencies including artists, civic leaders, employees at the Federal Plaza complex, and community residents. In addition, Serra was given the opportunity to state his views on the site-specific nature of "Tilted Arc" and the need to keep it at Federal Plaza. Those urging removal tended to be federal employees and area residents who complained primarily of the obstruction of Federal Plaza and the sculpture's unappealing aesthetic qualities. Those against removal tended to be artists and others from the art world who pointed to the work's significance in 20th Century sculpture and the importance of protecting the artist's freedom of expression.
Following the hearing, Diamond prepared a report in which he recommended to Dwight Ink, Acting Administrator of GSA, that "Tilted Arc" be relocated. Diamond urged primarily that the sculpture obstructed Federal Plaza, preventing the public from using the space for recreation and community events. Additionally, he noted concerns expressed at the hearing regarding potential safety hazards caused by the sculpture and its vulnerability to graffiti. Though Diamond included in the report his opinion that the atmosphere of the Plaza had been "turned into affrontery," he also stated that "my consideration of the issue of whether to relocate the sculpture would not be in any way based upon the arguments of its beauty, its ugliness, or its place in art history."
Diamond's report and the entire administrative record were reviewed by Ink. Ink also met with Serra and his attorney so that Serra could personally articulate his concern about site-specificity. In a written decision issued in May 1985, Ink decided that "Tilted Arc" should be relocated. He relied largely on the views of federal employees and community residents that the sculpture interfered with their use of Federal Plaza. Like Diamond, Ink expressly avoided linking his decision to his personal evaluation of the work's artistic merit; he stated that he "made no judgment whatsoever concerning the aesthetic value of the Tilted Arc."
Serra initiated this lawsuit in December 1986. His complaint named as defendants GSA and administrators Diamond and Ink in their individual capacities. He alleged that GSA's decision to remove "Tilted Arc" violated his rights under the Free Speech Clause of the First Amendment, the Due Process Clause of the Fifth Amendment, federal trademark and copyright laws, and state law. Serra sought a declaratory judgment that his rights had been violated, an injunction against removal of the sculpture, and damages from the individual defendants in excess of $30,000,000.
The District Court issued two opinions disposing of Serra's complaint. In the first opinion, 664 F.Supp. 798, Judge Pollack dismissed Serra's claims against GSA administrators Diamond and Ink in their individual capacities on the ground of qualified immunity. Serra does not appeal that decision. In his second opinion, 667 F.Supp. 1042, the District Judge dismissed for lack of subject matter jurisdiction Serra's claims based on breach of contract, the federal trademark and copyright statutes, and state law. Judge Pollack granted summary judgment to GSA on Serra's constitutional claims on the grounds that the decision to relocate "Tilted Arc" was a content-neutral determination made to further significant government interests and that the hearing provided all the process that was due. On appeal from the judgment dismissing his suit, Serra challenges only the rejection of his free expression and due process claims.
The District Court assumed, without deciding the issue, that "Tilted Arc" is expression protected to some extent by the First Amendment. The Court reasoned that "ideas need not necessarily be spoken or written to qualify for First Amendment protection." 667 F.Supp. at 1055. While we agree that artwork, like other non-verbal forms of expression, may under some circumstances constitute speech for First Amendment purposes, see, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975) (topless dancing); Piarowski v. Illinois Community College, 759 F.2d 625, 628 (7th Cir.), cert. denied, 474 U.S. 1007, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985) (art), we believe that the First Amendment has only limited application in a case like the present one where the artistic expression belongs to the Government rather than a private individual.
" 'The purpose of the First Amendment is to protect private expression and nothing in the guarantee precludes the government from controlling its own expression or that of its agents.' " Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 139 n. 7, 93 S.Ct. 2080, 2104 n. 7, 36 L.Ed.2d 772 (1973) (Stewart, J.,...
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