NEW ORLEANS -- Would a public mural depicting a naked politician with his young intern be art, or obscene?
That was just one of the many questions a judge posed to lawyers Monday during a hearing to determine whether New Orleans' regulations for murals violate the free speech of a landowner whose currently covered fence features infamous Donald Trump quotes from 2005.
"I will rule as soon as I can," District Judge Martin L.C. Feldman told attorneys.
Landowner Neal Morris sued after being ordered to remove the mural, which transcribes part of then-presidential candidate Trump's recorded "Access Hollywood" conversation, including a boast about groping women's genitals. The mural is written in large capital letters with cartoons replacing four words. In one section it says, "I moved on her like a dog," with a cartoon dog in place of the word.
The fence has been covered since the city served Morris with a notice about the regulations, first with a canvas sheet with the word "censored" repeated in bright colors, then with a plain canvas sheet.
Monday's hearing only dealt with the constitutionality of the regulations, not with whether the mural's contents are legal. The city ordered Morris to remove the mural because he failed to obtain a permit for it. Permits are only issued after applicants submit preliminary sketches of the artwork they plan to display.
During Monday's hearing, Feldman asked Bruce Hamilton, an American Civil Liberties Union lawyer representing Morris, how he'd advise the mayor if he were the city attorney.
"I am not in the business of how to create regulations," Hamilton replied.
"If you're arguing constitutionality, you're obligated to look at both sides," Feldman said.
Hamilton said he'd tell the mayor that instead of requiring preliminary sketches, the city could simply regulate murals after they are installed. The sketch requirement, he said, amounts to an unconstitutional prior restraint on artistic free speech.
What if, Feldman asked, the mural in question showed a nude former President Bill Clinton and a young woman resembling former intern Monica Lewinsky and the words, "I never had sexual relations with that woman"? Would that be art? Or would it be obscene?
"I don't believe it would be obscene. I believe it would be art," Hamilton said. Asked why, he said it wouldn't be appealing to prurient interest.
"How do you know that?" the judge asked.
"That's a good question, your honor," Hamilton said.
"Earn your salary," the judge responded.
Feldman also asked Hamilton whether a huge painting of Botticelli's nude Venus would be allowable if it bore words noting that it's a copy of one at the Uffizi Gallery. "I think that under the city ordinance it could be considered a sign," Hamilton said.
When it was Deputy City Attorney Corwin St. James' turn, Feldman asked why the city needs to regulate murals when it has a separate, unquestioned ordinance to regulate commercial signs.
"We're concerned about somebody putting up a sign that's masquerading as a mural," St. James said.
If that should happen, Feldman asked, couldn't the city simply enforce the sign ordinance? "Why don't you just regulate signs?" he asked.
The judge also asked St. James about Botticelli's Venus, and added another hypothetical question about a wordless painting on a brothel's outside wall.
"Is it a sign advertising a house of prostitution, or a mural extolling the virtues of unlicensed sex?" he asked.
"I would say mural," St. James answered.
Feldman also noted that the U.S. Supreme Court recently struck down a section of federal law that kept businesses from registering trademarks considered scandalous or immoral. How is asking for a sketch of a mural and taking 15 days to decide whether to approve it any different from that now-discounted provision, he asked.
Both St. Raymond and Hamilton described the questioning as even-handed.
The city revised its mural rules in June, cutting the permitting cost from $500 to $50, and moving approval from the City Planning Commission to the Department of Safety and Permits — but still requiring sketches for approval, NOLA.com ' The Times-Picayune reported.