David Pulphus was a high school senior in Missouri when he submitted a painting to the 2016 Congressional Art Competition. His painting depicts the civil unrest that occurred in 2014 in Ferguson, MO, and it includes an image of a horned police officer pointing a gun. The piece was among those selected to be displayed in the halls of Congress—until several Republican members of Congress, who saw the painting as anti-police, sought to take it down. Ultimately, the architect of the Capitol removed it permanently from the display.
Pulphus and his congressman, Rep. William Lacy Clay (D-MO), brought a First Amendment challenge, arguing that the painting’s removal violated their rights to free expression. On Friday (Nov. 30), the D.C. Circuit dismissed the lawsuit as moot because the 2016 art competition—and its corresponding Capitol exhibition have ended—so there was no longer any injury for the court to redress.
In its opinion in Pulphus v. Ayers, the court rejected Pulphus’s arguments that the case continues to present a live controversy. He said his exclusion from the 2016 exhibition created ongoing reputational harm because he can no longer call himself a “winner” of the competition, and it meant that his work did not get to be displayed on a third-party website that catalogues past winners. But Judge Rogers (joined by Chief Judge Garland and Judge Katsas) concluded that Pulphus was not stripped of his title when his work was removed from the display. She also reasoned that Pulphus could not show that the third-party website would otherwise display his work—and in any event, the website’s owner was not a party to the case and could not be bound by a court order.
Pulphus also argued that his harm was “capable of repetition yet evading review”—an exception to the mootness doctrine that allows courts to decide claims that have expired but may arise again. The court did not agree. Pulphus has graduated from high school and is no longer eligible to enter the competition, so the controversy will never repeat itself.
