## Facts

- David Nelson, a student at the School of the Art Institute of Chicago, created “Mirth and Girth,” a painting depicting Chicago Mayor Harold Washington in women’s underwear.
- The painting was displayed in a student exhibition at the Art Institute, a private institution; the exhibition was limited to students, faculty, and invited guests.
- Public and political backlash followed, and Chicago aldermen demanded removal and applied political pressure, including threats tied to city funding.
- Aldermen entered the school without invitation and removed the painting from the wall; one alderman allegedly displayed a firearm.
- The painting was taken to the school president’s office, wrapped, and placed in police custody; it was held for about a day and returned damaged (slashed).
- The school apologized and declined to exhibit the painting again.
- Nelson sued under 42 U.S.C. § 1983, alleging violations of the First Amendment (suppression of protected expression) and Fourth Amendment (unreasonable seizure).
- The district court denied the aldermen’s motion for summary judgment based on qualified immunity; the aldermen filed an interlocutory appeal.

## Issues

1. Whether the aldermen acted under color of state law when they entered a private school and removed the painting.
2. Whether removing the painting because of its offensive content violated Nelson’s First Amendment rights, including by effecting a “heckler’s veto.”
3. Whether taking the painting and placing it in police custody, even temporarily, constituted an unreasonable seizure under the Fourth Amendment.
4. Whether the aldermen were entitled to qualified immunity because the allegedly violated rights were not clearly established in 1988 or because they acted to prevent unrest.

## Decision

- The Seventh Circuit affirmed the denial of qualified immunity.
- The court held the aldermen’s conduct plausibly violated clearly established First Amendment rights because the painting was suppressed based on its content and the reaction it provoked.
- The court held the physical taking and temporary police custody of the painting plausibly constituted an illegal seizure under the Fourth Amendment.
- The court rejected the characterization of the aldermen as private actors, given their use of official position and coercive political leverage.
- The court rejected justifications grounded in anticipated public disorder where officials could address threatened violence without censoring speech or seizing property.

## Legal Principles

- Government officials may not suppress protected expression based on offensiveness or public outrage; the First Amendment forbids a “heckler’s veto.”
- Anticipated disorder generally does not justify content-based suppression; the lawful response is to control lawbreakers rather than silence speakers.
- Physical interference with an owner’s possessory interest in property, including a temporary taking into police custody without lawful justification, can be an unreasonable seizure under the Fourth Amendment.
- Officials act under color of state law when they use the authority, status, or coercive power of public office to accomplish the challenged conduct.
- Qualified immunity is unavailable when, at the time of the conduct, the constitutional limits on censorship and warrantless seizures are clearly established such that reasonable officials would understand the conduct to be unlawful.

## Conclusion

The Seventh Circuit held that aldermen who used their public office to remove and seize offensive artwork from a private school could be sued for damages under § 1983 because the alleged content-based suppression and warrantless seizure violated clearly established First and Fourth Amendment rights, defeating qualified immunity.


Nelson v. Streeter, 16 F.3d 145 (7th Cir. 1994)