Nelson v. Streeter

In 1987 Harold Washington, the first Black mayor of Chicago, died. Washington was widely beloved in the city. The next year, David Nelson (plaintiff), a student at the School of the Art Institute of Chicago (the school), a private institution, painted a portrait of Washington wearing women’s underwear in reference to a rumor about what Washington had been wearing at the time of his death. Nelson’s painting was included in an exhibit of student work that was not open to the public. Despite this, the painting became the focus of public outrage. A group of Chicago aldermen (defendants) demanded that the school remove the painting and threatened to withhold city funds if the school refused to apologize for exhibiting the painting. One day, two aldermen went to the school to remove the painting. One of the aldermen took the painting from the wall while the other alderman brandished a gun. The aldermen were stopped from taking the painting out of the school. Additional aldermen arrived, took the painting to the president’s office, and demanded that it be taken into police custody. The police eventually returned the painting to Nelson. The school apologized to the city for exhibiting the painting and refused to display it again. Nelson filed a lawsuit under 42 U.S.C. § 1983 against the aldermen in federal district court, alleging that the aldermen violated his First Amendment rights by entering the school, a private institution, without an invitation and removing the painting. The aldermen asserted that they were entitled to a defense of qualified immunity. The district court rejected the aldermen’s defense. The aldermen appealed and further argued that they were acting as private citizens in removing the painting, and that they removed the painting to prevent a riot by the public.