It’s not as if Samuel Kerson forced his mural commemorating Vermont’s role in the Underground Railroad upon Vermont Law School. He proposed it and they were all on board. But that was then, 1993, before art was subject to the potential of hurt feelings and offense should any observer disapprove. Then again, back in 1993, one would have confidently expected the ACLU to support art, and the right of artists not merely to express themselves but to not have their art permanently removed from sight.

But that was then, 1993. Today, that’s no longer the case.

In 1993, Plaintiff-Appellant Samuel Kerson painted two large murals, together entitled The Underground Railroad, Vermont and the Fugitive Slave, directly onto the sheet rock walls inside a building on the campus of Defendant-Appellant Vermont Law School, Inc. The work commemorates Vermont’s role in the Underground Railroad, depicting scenes from the United States’ sordid history with slavery and Vermont’s participation in the abolitionist movement. Responding to concerns within the Law School community that the Murals’ depiction of this history was, in fact, offensive, the Law School informed Kerson in 2020 of its intent to erect a wall of fabric-cushioned acoustic panels, which would permanently conceal the Murals from public view. Kerson objected and filed suit to enjoin the Law School from following through with this plan on the grounds that ensconcing the Murals behind a wall violated his rights under the Visual Artists Rights Act of 1990. The United States District Court for the District of Vermont (Crawford, J.) denied Kerson’s motion for a preliminary injunction and subsequently granted summary judgment to the Law School on Kerson’s VARA claim, after which the Law School installed the panels. Kerson now appeals.

Enter the ACLU as amicus curiae. Not for the artist, but for the censor, Vermont Law School. And the opinion by Judge Debra Livingston with a rationale so bizarrely obsequious to both the law school and the feelings of the offended as to defy credulity.

In enacting VARA, Congress enshrined an artist’s moral rights of attribution and integrity for the duration of the artist’s lifetime. VARA establishes a scheme of protection calibrated to mediate between artists’ rights to protect their artistic reputation and the integrity of their works and art owners’ rights to control the works in their possession. To this end, authors of qualifying works of visual art may invoke VARA to prevent the modification and destruction of their art, albeit with some exceptions. But hiding the Murals behind a barrier neither modifies nor destroys them and, therefore, does not violate VARA. Because VARA does not afford artists a categorical right to demand that their works remain on display, we affirm the judgment of the district court.

The nature of art is that some may like it while some may not. Kerson’s mural was expressly intended to honor Vermont’s role in the Underground Railroad, certainly not intended to offend the progressive sensibilities of law students today. If anything, such a commemorative mural should be appreciated, if not for its art, then for its message. But not this art which in the eyes of some lacked the purity of depiction by presenting slaves in a less than realist manner.

Is it offensive? Like beauty, that’s in the eyes of the beholder. If someone wants to find offense in the mural, then they no doubt can from the less than accurate depictions of slaves, not to mention everyone else in the mural. But I digress.

As Kerson painted the mural directly on the sheet rock walls of the school, it was not possible to remove it without damaging the work. Like it or not, it was there permanently. The court held that VARA has no application to the school’s decision to permanently cover the mural because it did not destroy it, per se, but only rendered it hidden from public view by “permanently” concealing it behind “a wall of fabric-cushioned acoustic panels.” In other words, the mural would remain theoretically intact, but never again visible.

In what way is the permanent concealment of art different from its physical destruction?

Because its plain meaning is easily discerned, we begin with VARA’s use of the word “destruction,” which we determine to be unambiguous.

The court held that while an artist has the droit moral to not have his art “destroyed,” he has no right to have it seen. While true, it misses the point that destruction is condemned because the art can never be seen again, even if one wants to. That’s no different than permanent concealment, While an artist may not have a right to compel the display of his art, at least the art remains available for display should minds change. Once permanently concealed, that’s no longer possible.

As if this circumvention failed to constitute destruction in itself, Kerson argued that the panels that would permanently conceal his mural may well destroy the mural beneath.

Notably, [art conservation expert Emily] Phillips could not predict with any degree of certainty the extent of damage, if any, that may befall the Murals. Phillips acknowledged that the acoustic panels “are a completely unknown material and may contain substances in the fabric, the backing, the interior core or manner of construction which may adversely impact . . . the murals.” Unfamiliar with the materials used to compose the acoustic panels, she also could not “determine the permeability of the panels and how they will allow for proper air flow.” Phillips conceded that she had not tested the acoustic panels and could not certify whether they would emit harmful gases, the extent to which the panels might damage the Murals, or on what timeframe any expected damage might occur. Even crediting Phillips’s opinion that the conditions created by the wall may damage the Murals, the record does not support the conclusion that the Murals will deteriorate to the point of destruction. Put another way, the mere possibility that the Murals face damage of an unknown extent at some unspecified point in the future does not give rise to a claim for destruction under VARA.

The problem was that there was a lack of certainty that this thing that had never been done before could in fact destroy the art behind it over time. Even if it turns out that 20 years from now, when the moment passes and Vermont Law School realizes its censorship of this mural was a ridiculous mistake borne of the illiberal outrage of the moment, it may well end up that the mural is ruined, whereupon Judge Livingstone will shrug and say, “oh well.”

And this is what the ACLU stands for now, the effective destruction of public art lest anyone complain that it hurts their feelings and offends their racial sensibilities.