Serra was commissioned by the federal government to create a sculpture for the plaza next to a federal office complex in lower Manhattan. Serra’s work was “site-specific;” the sculpture would only be meaningful when displayed in the particular location for which it was created. The federal government bought the sculpture (“Tilted Ark”), signing a contract with Serra stating that all of his work produced under the contract would become the property of the U.S. After years of criticism from community residents and office workers about the sculpture’s obstruction of the plaza and its unappealing appearance, the government decided to relocate the sculpture from the federal office complex. Government officials claimed that the decision rested on the sculpture’s interference with employees’ and residents’ use of the plaza, not its aesthetic value. Serra then filed a lawsuit challenging the government’s decision to relocate the sculpture.
The Court ruled that the First Amendment is limited in this case, where the artistic expression belongs to the government rather than a private individual. The government here was not subsidizing the creation of artworks, but was an actual purchaser and owner of the artwork in issue.
The Court found:
- The artist gave up his free speech rights in his sculpture when he sold it to the government;
- Even if the artist retained some First Amendment interest in the continued display of the sculpture, removal of the sculpture was a permissible time, place, and manner restriction; and,
- Even if the government’s decision to move the sculpture was based on the sculpture’s lack of aesthetic appeal, i.e. because the sculpture was ugly, its decision was permissible.
The Court noted that, had Serra shown that the government removed the sculpture to condemn a political point of view, he would have had a better chance of winning, but Serra himself could not identify any particular message conveyed by Tilted Ark. The Court concluded that under the First Amendment there is no right for artists to have a work of art sold to the government permanently displayed at the intended location.
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