Few things have brought consensus recently more than the revulsion over the allegations against comedian Bill Cosby, a Philadelphia native.  Yet in a desire to distance itself from Cosby, the city may have crossed a First Amendment line when a well-known mural entitled “Father’s Day” that depicts Cosby was painted over.  And even if the city did not run afoul of that constitutional protection, the artist of the mural may have had under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (VARA) rights too.  Ultimately it will come down to whether the artist or artists object to the fact or the timing of the removal—an objection that would not necessarily be any endorsement or support of Cosby (or have anything at all to do with Cosby), but which might relate more to the right of expression.

According to The Washington Post, a total of 35 women have now accused Cosby of drugging and/or sexually assaulting them.  Cosby denies any impropriety.  Institutions like Temple University and the University of Massachusetts, with which Cosby has had long affiliations, have parted ways with him.  Cosby stepped down from the Board of Trustees at Temple (where he was an undergraduate) last winter, and UMass (where he earned a Ph.D.), asked Cosby in November of last year to step down from the honorary role he had been playing in a capital campaign.

Back in Philadelphia, the Father’s Day-themed mural was painted in 2000 in North Philadelphia at North Broad Street and Glenwood Avenue.  It features an image of Cosby, as well those as of Martin Luther, King, Jr. and Nelson Mandela.  It was, as of this morning at least, still visible on Google Street ViewAccording to ArtNet, the mural was “managed” by the Philadelphia City Mural Arts Program.  That program’s description includes the following:

Mural Arts was first established in 1984 as part of the Philadelphia Anti-Graffiti Network’s effort to eradicate the city’s graffiti crisis. Artist Jane Golden was hired to reach out to graffiti writers and redirect their energies to constructive public art projects. In addition to addressing the problem of graffiti, Mural Arts’ collective mural-making processes proved to be a powerful tool for generating dialogue, building relationships, empowering communities, and sparking economic revitalization. In 1996, the Anti-Graffiti Network was reorganized and the Mural Arts Program became its own entity. Soon after, the nonprofit Philadelphia Mural Arts Advocates was established to raise additional funds for the program, making Mural Arts a unique public/private partnership. 

The project’s website has a wonderful gallery of murals around the city, which clearly reflect a stunning array of creativity.

According to the Philadelphia Inquirer, the Father’s Day mural had apparently been on Mural Arts’ list to be removed “for months,” but after recent public scrutiny, the organization had “decided to move it up on our list.”  That has now happened, but not before someone memorialized the accusations against Cosby by painting them over his image on the mural.

So does any of this create a legal problem?  First and foremost, the Mural Arts Project describes itself as a “public/private partnership.”  So for the purposes of the First Amendment, it may have enough of the imprimatur of state action to be regulated by the right to free speech.  Here a review is instructive.  The government need not let any of us express our views on public property, but once it allows the expression, it cannot choose among them.  That is, once a forum is made available for expressive speech, it may only enforce content-neutral restrictions.

The mural project, arguably, is just such a public forum.  And if the expedited decision to paint over the Father’s Day mural was because of what (or more precisely, who) it depicted, that is not a content-neutral restriction.  It is exactly the opposite.  And of course these principles are tested in hard cases; it is the availability of speech for unpopular ideas (or people) that the First Amendment protects.

The bigger question, and the one that would also drive any VARA argument for physical integrity on the premise that the work was of “recognized stature,” is whether the artist cares.  Because if either scenario I’ve laid out is correct (that the mural was removed by the government from a public forum because of its content, or that a work of recognized stature was destroyed), it would be for the artist to complain about it.  It would be the artist whose rights—constitutional or statutory—had been affected.  There is no sign yet that the artist or artists of the mural object to the removal.