Censorship rarely comes labelled as such. Instead, institutions often twist themselves to find any legal justification to defend decisions to silence artists and suppress creative expression. For over 25 years, the National Coalition Against Censorship (NCAC) has tracked instances of art censorship throughout the United States. As art engaging questions of social justice, governance, identity, or public policy becomes more of a target across the country—particularly at the highest levels of government—the justifications invoked to defend its removal are not only more creative, but more plainly unsound.
Recent episodes at Pepperdine University and the History Colorado Center showcase a pattern of administrators invoking tax law or campaign finance restrictions to rationalize censorship that has little to do with legal compliance and everything to do with discomfort with dissent.
Pepperdine University Nonprofit Status Excuse
In October, Pepperdine University cancelled the Hold My Hand in Yours exhibition at the school’s Frederick R. Weisman Museum of Art after censoring two pieces of art led to artists pulling out of the show in protest. The dispute began when administrators told the museum to remove certain elements of Call to Arms, 2015-2025, a work by artist Elana Mann. The work included a video of performers speaking into a modified bullhorn whose mouthpiece is shaped like a hand covering the speaker’s mouth—an overt commentary on silencing, the COVID-19 pandemic, the overturning of Roe v. Wade, and the Trump Administration’s anti-immigration policies.
Because the censored video was central to her installation, Mann requested the rest of her work to be taken down.
Administration officials also modified another installation, Con Nuestras Manos Construimos Deidades, by the nonprofit organization Art Made Between Opposite Sides (AMBOS). This piece, comprised of a patchwork of textiles and ceramic hands, included fabric embroidered with the phrases “ABOLISH ICE” and “SAVE THE CHILDREN.” Its creators intended for audiences to interact directly with the work. At the order of administration officials, museum leadership positioned the work so that these elements could not be seen, and removed wall text inviting viewers to touch the art.
Pepperdine Provost Jay Brewster later claimed the works contained “overtly political content” which might jeopardize the school’s tax status as a section 501(c)(3) nonprofit.
But this explanation entirely misunderstands the law. While it is true that 501(c)(3) organizations are subject to some restrictions around lobbying for candidates running for office or pending legislation, it does not prevent nonprofits from expressing general political opinions of the type contained in the works of Mann and AMBOS. If it did, such a law would plainly violate the First Amendment.
It is not credible that Pepperdine would be liable for the mere passive display of politically expressive artworks. Offering a forum for the views of private speakers does not impute those speakers’ political stances to the university. Nor is it plausible that viewers would mistake the expression contained within the artworks as the university’s own stance. Courts have repeatedly confirmed that offering a forum for private expression does not turn that expression into the institution’s viewpoint.
To be clear, federal tax law does impose real limits on nonprofit conduct, but none of that comes close to covering the artworks at issue. Specifically, the Internal Revenue Code prohibits 501(c)(3) organizations from directly or indirectly advocating on behalf of or against candidates for public office. A nonprofit may also risk losing its tax status if more than a “substantial part of its activities” is dedicated to lobbying for or against specific legislation. However, exhibiting artworks in a campus gallery does not remotely approach either category.
Even if a viewer could somehow interpret these artworks as reflecting the university’s own view (which is not the case here), the school would still not be in violation of federal tax law. Criticism of general government action does not equate to endorsement of a political candidate, nor did the works address any pending legislation. The idea that a nonprofit cannot host or display work addressing major social and political issues is not supported by statute, by federal tax law practice, or by common sense.
The law is in fact more protective of expressive activity than Pepperdine’s Provost suggested. Organizations may obtain 501(c)(3) status by, among other things, being “organized and operated exclusively for… charitable… purposes.” In the 1983 case Bob Jones Univ. v. United States, the United States Supreme Court interpreted charitable purposes to include those that “serve a public purpose and are not contrary to established public policy.” The Internal Revenue Service (IRS) may only declare that an institution is not “charitable” if “there can be no doubt that the activity involved is contrary to a fundamental public policy,” as indicated by years of court rulings and a consistent position taken by the Executive Branch across several presidencies. So, for example, if a school engaged in racially discriminatory admissions, as in Bob Jones, it could be denied nonprofit status because it was clear “that racial discrimination in education violates deeply and widely accepted views of elementary justice.”
But overtly racist admissions policies are a far cry from merely displaying the political art of others. If criticism of public policy meant automatic denial or revocation of tax status, the entire nonprofit infrastructure, as we know it, would crumble. Organizations doing work integral to defending constitutional rights, such as the American Civil Liberties Union, would be first on the chopping block. Thankfully, that is so far not the case.
Even some concerns about the current administration’s ability to revoke the nonprofit status of organizations it dislikes may be somewhat overblown. Federal law prohibits the President, Vice President, or any employee of the Executive Office of the President or Vice President from “request[ing], directly or indirectly, any officer or employee of the Internal Revenue Service” to conduct an audit or investigation of a particular taxpayer. Should the IRS wish to strip an organization of its tax status, the process for doing so is extensive and includes opportunity for appeal.
All this to say, Pepperdine faced no real threat to its 501(c)(3) status by displaying art critical of certain government policies. This was censorship, not legal compliance.
History Colorado Center’s Misuse of State Campaign Finance Law
A similar dynamic recently played out in Colorado. In October, the History Colorado Center (HCC)—a museum run by History Colorado, an agency of the State of Colorado under the Department of Higher Education—cited its state’s Fair Campaign Practices Act (FCPA) as reason to refuse to show a work in Big Dreams in Denver’s Little Saigon, an exhibition created in partnership with Colorado Asian Pacific United (CAPU).
CAPU commissioned artist Madalyn Drewno to create three paintings for the exhibition, which was set to open on October 20. On October 16, CAPU notified Drewno that HCC would not display one of the paintings, None of Us Are Free Until All of Us Are Free, which includes images of Colorado’s governor and U.S. Senators in a critique of the treatment of Palestinians, immigrants, and Indigenous people.
In a statement explaining the decision not to show the work, History Colorado said that it “does not use public funds or resources to platform opinions that could be perceived as campaigning for or against current candidates or ballot issues.”
History Colorado is correct that the FCPA prohibits state agencies from making contributions to campaigns for elected office or urging electors to vote for or against ballot issues. The law defines a contribution to be “anything of value, given directly or indirectly, to a candidate for the purpose of promoting the candidate’s nomination, retention, recall, or election.”
However, that definition, though seemingly broad, is wholly inapplicable in this instance. The Colorado Supreme Court has concluded that for something to be “given” to a candidate, the contributor must have intended to influence the outcome of an election. There is no evidence that, in displaying Drewno’s painting, HCC had any intent to advocate for or against any political candidate or ballot measure. The court also ruled that an indirect benefit to a candidate is insufficient to give something “value” in this context, so displaying an artwork to the public containing criticism of a politician would not rise to the level of value required by the FCPA.
The idea that a public museum’s display of Drewno’s painting could violate campaign finance law is not only absurd, but also dangerous. It uses a legal argument to justify the elimination of political advocacy from art, which strikes at the very core of the Free Speech Clause. As Justice William Brennan wrote in the landmark free speech case, New York Times Co. v. Sullivan (1964), protection of the “criticism of official conduct” is “the central meaning of the First Amendment.”
Arguments that the display of art by a public institution amounts to government speech suffer from the same fallacy. When the government speaks for itself, it is permitted to express its own viewpoint and discriminate against others without being subject to the restrictions of the First Amendment, a legal theory known as the government speech doctrine. The Supreme Court has cautioned against the extension of this doctrine, however, because if private artistic expression that contains political views “could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”
If HCC had itself commissioned Drewno’s painting and instructed the artist to convey a specific message, that could perhaps be considered government speech. But that is not what happened here, nor is that usually the case.
More commonly, institutions display artworks for a limited period of time, within highly contextualized exhibits. If such displays always qualified as government speech and could never be subject to the First Amendment, art would become increasingly sycophantic and less critical of those in power, as artists would be more inclined to express the government’s views than their own in order to gain placement in public spaces. That would be a significant blow to activist movements, which have been propelled by powerful art. It would also be antithetical to the Founders’ conception of the First Amendment, and to the country’s identity as a democracy that relies on civic engagement and debate.
Indeed, because many displays of art by public institutions do not qualify as government speech, the government’s viewpoint-based removal of an artwork can lead to First Amendment liability. That shouldn’t scare public institutions away from displaying more controversial works—it should give them breathing room to do so. Public institutions can point to the First Amendment as the reason they cannot bow to a heckler’s veto and remove a work simply because some people do not like its message. In this way, the First Amendment creates less liability, not more. The First Amendment was designed to facilitate a marketplace of ideas and encourage a variety of voices, and institutions should be more empowered to show controversial art because of it, not more hesitant.
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Across public and private institutions, fear of legal liability is increasingly weaponized to obscure the real reason expressive works are removed: discomfort with dissenting, critical, or socially engaged art. The assumption that displaying such artwork counts as an endorsement is wrong as a matter of law and corrosive as a matter of democratic culture. Let’s just call it what it is: censorship.
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