Opposition to Motion to Dismiss Julian Raven V Smithsonian NPG Director Kim Sajet #17 cv 01240 TNM

INDEX

1. Motion in Opposition to Defendants’ Motion To Dismiss 2. Memorandum of Law 3. Table of Authorities 4. Forum Analysis Citations 5. List of Citations Summum, Walker, PETA and Pulphus 6. Misc. Documents and Documents of Record Cited/Referenced in Plaintiff’s Amended Complaint and Motion a. Email to Rockwell Museum Director Swain b. Email to Smithsonian Affiliate Director Harold Closter c. Smithsonian National Portrait Gallery Application d. Official Letters of support: Congressman Tom Reed, Senator Tom O’Mara, Assemblyman Christopher Friend, New York GOP Chairman Ed. Cox, Elmira Mayor Dan Mandel, Chemung County Legislator Rodney Strange, Schuyler County Chairman Lester Cady, Radio Host Frank Acomb, Yates County GOP Chair Sandra King, Art Collectors Brad Davis and Andrea Gates, Steuben County GOP Chair Joe Sempolinski, Elmira Councilwoman Nanette Moss, e. Letter of Appeal to the Smithsonian Board of Regents f. Provost Richard Kurin Letter g. Letter of Reply to Richard Kurin h. Director Kim Sajet letter to Bishop Jackson 7. Cited DOCS A-­‐G A. Establishment of the National Portrait Gallery B. ‘Programm of Organization’-­‐ Joseph Henry C. Smithsonian Act of Congress 1846 D. Smithsonian Legal Nature E. Smithsonian Status F. Smithsonian Status G. IRC Report to the Smithsonian Pages 28-­‐31

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United States District Court For The District of Columbia:

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April 22th, 2018

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Julian Marcus Raven Plaintiff v.

Kim Sajet, Richard Kurin Et Al. Defendants

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Hon. Judge McFadden #17-cv-01240-TNM

Motion in Opposition to Defendant’s Motion To Dismiss Abbreviations: (Pl. –Plaintiff, Pl’s – Plaintiff’s, Defendant –Def., Defendant’s – Def.’s, Defendants’ – Defs.’, National Portrait Gallery – NPG, Smithsonian Institution – SI, Sajet – S., Kurin – K., Due Process of Law – ‘DpoL’, Amendment. – ‘Amd.’, Government – ‘Gov.’, ‘Pres.’ – ‘Pres.’ )

16 To the honorable Judge McFadden, Pl. ‘pro se’ Julian Marcus Raven, motions the court to DENY 17 Defs.’ Motion to Dismiss Pl.’s Amended Complaint that is before the Court for the following reasons: 18 Attached is Pl.’s Memorandum of Law and Authorities in support of this motion.

19

The premise upon which Def.s construct their Motion to Dismiss is ‘fatally flawed.’ Def.s actions

20 demonstrate a political “anti-Trump” animus and not the actions of impartial federal officers within a 21 lawfully constituted Gov. entity in the form of a “trust instrumentality”.

22

Def. S. uses her position of power as an officer of the Federal Gov. to participate in the anti-Trump

23 hostility sweeping the nation and especially in “liberally” controlled institutions. Def. S.’s anti24 Trump, political animus is the root cause of the unlawful actions that led to the Constitutional 25 violations at the heart of Pl.’s claims. Def. K. joined Def. S. by ‘concurring’ in writing with Def. S.’s 26 unlawful actions, making Def. K. equally liable. Def. K. constructed a parallel unlawful scheme in an 27 effort to deny processing Pl.’s appeal, and then arbitrarily rejecting the portrait without a single 28 citation of any lawfully established SI standards or procedures.

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Def.s Motion to Dismiss Based on the Federal Rules of Civil Procedure and Other Issues

30 1. Motion to Dismiss- Rule 12 b(1)- Lack of subject matter jurisdiction 31 2. Motion to Dismiss- Rule 12b(6)- Failure to state a claim 32 3. Qualified Immunity.

33

The undisputed facts in Pl.’s Amended Complaint are accurate and true. Def.s have selected the

34 facts that correspond to their legal theory and have created ‘straw man’ arguments to distract from 35 Defs.’ egregious actions. Pl. will address both the distortions of fact and the facts omitted by Def.s:

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Def.s argue that the display of portraiture in this case constitutes ‘Gov. speech.’ This is the fatal

2 flaw in Def.’s argument. The SI is a ‘trust instrumentality’, and nothing more. The fatal flaw is 3 attributing executive/legislative/judicial speech powers and functions to an instrumentality that it does 4 not possess. The Motion to Dismiss based on Rule 12b(1) is predicated on this legal theory.

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Argument Establishing Subject Matter Jurisdiction - Defeating Rule 12b(1)

6 “A Pl. has the burden of proving that subject matter jurisdiction exists….” CHESAPEAKE BAY 7 FOUNDATION, INC., et al.,v. SEVERSTAL SPARROWS POINT, LLC, et al., 794 F.Supp.2d 8 602 (2011) Def.s challenge the Court’s jurisdiction in two ways: 1: Gov. Entity ‘Status’, that based on 9 Defs.’ theory of entity ‘status’, Pl.’s claims lack a Constitutional basis for injuries suffered. Defs.’

10 theory contends that the Federal Gov., through the SI, through the actions of Australian National, non 11 U.S. Citizen Def. S. and Def. K. was acting as the Gov. as speaker.

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Def.s admit that the Administrative Procedure Act (APA) exists to address ‘procedural’ unlawful

13 actions, which Def.s do not deny and even seemingly tacitly admit to doing. Defs.’ theory of Gov. 14 ‘entity’ is wrong. Pl. will show that Def.s are liable for the Constitutional 1st and 5th Amd. violations, 15 by demonstrating that the SI, a Gov. ‘trust instrumentality’ is liable for Constitutional constraints and 16 cannot speak for the Federal Gov. as Def.s argue.

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2. Defs.’ theory claims that the Constitution does not apply and that Pl. has no rights. Therefore Pl.’s

18 claims to ‘injuries in fact’ cannot be supported since Pl. does not and cannot have standing. Therefore, 19 “The irreducible constitutional minimum of standing…” regarding the nature of the injury suffered by 20 Pl. must be demonstrated by Pl.. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (U.S. 1992) Since 21 Pl. will show how the Constitution does apply and thus is the necessary basis for standing for Pl.’s 22 injuries in fact suffered, relief and monetary damages to redress Pl.’s injuries are demanded by law.

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Federal Instrumentalities Are Subject to Constitutional Constraints

24 Defs.’ (MTD page 9 para2) challenge to Pl. to present a ‘preponderance of evidence’ demonstrating 25 jurisdiction or face mandatory dismissal, is accepted and presented below.

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The Smithsonian Institution’s Legal History and Status: “…Be it Enacted By the Senate and House of Representatives of the United States of America in Congress assembled. That the Pres. and Vice-Pres. of the United States, …are hereby constituted, an "establishment," by the name of the "Smithsonian Institution," for the increase and diffusion of knowledge among men; and by that name shall be known and have perpetual succession, with the powers, limitations, and restrictions, hereinafter contained, and no other.” Smithsonian Institution Act of Congress, 1846 (Bold added) 20 U.S. Code § 41, 42, 43…(Doc. C)

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1 The misunderstanding about the ‘National’ character of the SI was a problem from its inception. Un2 checked, that misplaced compositional notion would lead to where we are today.

3 “2. The bequest is for the benefit of mankind. The Gov. of the United States is merely a trustee to carry 4 out the design of the testator.(Bold added.)(Not the will of Gov. of to speak for the Gov.. added.)

5 3. The institution is not a national establishment as is frequently supposed, but the establishment of an 6 individual, to bear and perpetuate his name. (Bold added.)

7 ‘Programme of Organization.’ Joseph Henry, The First Secretary of the SI, 1847(Doc. B) 8 On December 13th, 1847, “The Board of Regents adopts Secretary Joseph Henry's Programme of 9 Organization of the SI.” This Day In SI History, SI Archives, (Bold added.)

10 https://siarchives.si.edu/history/this-day-SI-history/december 11

If there was any group of people who knew what the SI’s legal composition was within the Federal

12 Gov., it was those Gov.al officials, alive at that time who were part of its establishing.

13 “SEC 3. And be it further enacted, That the business of the said Institution shall be conducted at the City of 14 Washington by a board of regents, by the name of regents of the "SI," ...” SI Act of Congress. 1846 15 16 17 18 19

Limits of Smithsonian Power & Purpose Defined in the Congressional Act of 1846. “…with the powers, limitations, and restrictions, hereinafter contained, and no other.” (Bold added).

Sec.1, SI Act 1846 “Sec 9. And be it further enacted, …as they shall deem best suited for the promotion of the purpose of the testator, any thing herein contained to the contrary notwithstanding.” SI Act, 1846 (Doc. C)

20 The Federal Gov. may not inject itself into the private Will and Testament held in trust or 21 change/usurp the nature of the role of trustee. It can only act according to the laws of equity regarding 22 the functions, authorities and powers of trustees. The Federal mandate in the Act of Congress is silent 23 as to any role of the Federal Gov. beyond the role of trustee.

24 25 “(a) There is established in the SI a bureau which shall be known as the NPG…” NPG Establishment 20 26 USC 75b (Bold added.)(Doc. A) “The SI is a trust instrumentality of the United States... The SI is not an 27 executive branch agency and does not exercise regulatory powers, except over its own buildings and 28 grounds. Thus, courts have held that the SI is not an agency or authority of the Gov. (bold added) 29 …”SI Website. https://www.si.edu/ogc/legalhistory (Doc. D) “Chief Justice Taft, speaking as Chancellor 30 of the SI Board of Regents, also asserted, ‘that the SI is not, and never has been considered a Gov. 31 bureau. It is a private institution under the guardianship of the Gov..’ (Bold added)” 32 https://www.justice.gov/file/24096/download(Doc. E) 33 The Status of the SI Under the Federal Property and Administration Services Act. June 30, 1988, 34 Deputy Assistant Attorney General, Douglas W. Kmiec(DEPARTMENT OF JUSTICE) 35 “…we observed that the SI ‘performs none of the purely operational functions of Gov. which have 36 been given such significant weight in determinations of agency status in other cases’ and that ‘it plays no 37 part in the process of administration, regulation, and Gov..’ (Bold added) Id. at 10” Immunity Of SI 38 from State insurance Laws, Deputy Assistant Attorney General, Randall D. Moss, April 25, 39 1997(DEPARTMENT OF JUSTICE) https://www.justice.gov/file/19821/download (Doc. F) 40 41 Defendant’s Gov. ‘Entity’ Theory Failure 42 There is no question that the SI is a Gov. ‘entity’. The question is what type of ‘entity’ is the SI 43 and what powers and authorities does it bear?“15 U.S. Code § 6602 –Instrumentality: “…does not 44 have the full powers of a Gov.,” https://www.irs.gov/Gov.-entities/federal-state-local-Gov.s/Gov.45 entities-and-their-federal-tax-obligations 46 The SI is neither executive, legislative nor judicial in nature.

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Comparing the Establishment of Gov. Entities

2 Def.s theory is that a Gov. instrumentality exercises ‘Gov. Speech’ as a National Federal 3 Establishment or Agency. In the language of the Congressional Act that formed the National 4 Endowments for the Arts (NEA), we read the following: 5 “AN ACT To provide for the establishment of the National Foundation on the Arts and the Humanities 6 to promote progress and scholarship in the humanities and the arts in the United States, and for other 7 purposes.”(Bold added.) National Foundation on the Arts and the Humanities Act of 1965 (P.L. 898 209).

9 In contrast, the language used in the establishment of the SI and the NPG: 10 “There is established in the SI a bureau which shall be known as the NPG…” And also the 11 Congressional Act of 1846:“… during the time for which they shall hold their respective offices, and 12 such other persons as they may elect honorary members, be, and they are hereby constituted, an 13 "establishment,"…” -SI Act of 1846. (Doc. C) 14 15 The SI was established upon the individuals as citizens while ‘…they shall hold their respective 16 offices…’ or who happen to hold ‘offices’ who ever they may be at the time. The establishment does 17 not happen upon the Federal Gov. but upon individuals as trustees who happen to be part of the 18 Federal Gov. and who happen to hold important titles. But as can be seen, elected ‘honorary 19 members’, volunteers, also constitute the establishment as is seen in the Board of Regents (there were 20 6, 21 today 9) members of the public who are not elected representative Gov. officials in any way, but they 22 are trust beneficiaries. “…together with six other persons, …” SEC 3 SI Act 1846.

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SI Trustees are comprised of officers of the executive, judicial and legislative branches of Gov. and

24 members of the public. They are all citizens, volunteers and beneficiaries of the trust. The Trustees do 25 not exercise their Gov.al mandates and constituted authority when they function as The Board of 26 Regents. They should leave their Gov.al powers, duties and robes at the door when they sit down as 27 trustees of the private will of an individual, J. Smithson. Imagine for a moment, that the Vice Pres., the 28 Chief Justice and a few members of Congress attend the same church in D.C. and also sit on the Board 29 of Trustees of that church. Does the fact that they all are Gov. officials suddenly turn the church board 30 into a Gov. entity? Or is it as argued by Pl., that their individual official status should have no 31 influence on their duty as trustees? Thus, the board of that church and the board at the SI have nothing 32 to do with the Gov., other than in the case of the SI, the Gov. is guardian over the trust property. Now

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1 imagine that the Pastor of that church, hired by the trustees (who happen to have jobs as elected Gov. 2 officials), imagines that he now speaks for and as the Gov.? Imagine the conflict arising out of the 3 removal of the boundaries of the ‘Separation of Powers’ of the executive, judicial and legislative 4 branches. What Def.s are arguing is precisely that, that inside the SI, a new Gov.al entity has been 5 created, where officers of the Executive, Legislative and Judicial branches and members of the public 6 constitute a synergy of the People and Gov. into a new political ‘entity’ that acts and speaks as the 7 Federal Gov..

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Decisions by vote made by the Board of Regents require a quorum of 8 Trustees. It is unthinkable

9 that unelected members of the public sector, acting as Trustees of a private trust, can vote in a quorum, 10 and in essence, act as the Federal Gov. and thus exercise ‘Gov. Speech’ powers, which can only be 11 derived from the voting citizenry! Further stretching Defs.’ theory of ‘Gov. Speech’ into the absurd, is 12 the fact that the employees, assistants and/or officers ‘hired’ to assist the Trustees in fulfilling the 13 mandate of the trust, by mandate in the Congressional Act of 1846, also exercise this executive Gov.al 14 power of ‘Gov. Speech’ in all the decisions they make, no matter how arbitrary, as in the instant case.

15 Def.s S. and K. are un-elected private individuals who function within the Federal Gov., acting solely 16 as trustee delegates or functional fiduciaries, to carry out the will of a private individual. Def.s get 17 their paycheck from the Federal Gov., guaranteeing constitutional protections to the trust participating 18 beneficiaries and citizenry. Since the establishment of the SI happened by an Act of Congress and not 19 by private citizens, the full protections of the Constitution are firmly in place.

20 Establishment of the NPG & Gov. Speech 21 “(a) There is established in the SI a bureau which shall be known as the NPG…” 20 USC 75b 22 Although the term ‘National’ is used in the name of the gallery, the establishment is created as part of, 23 or within the SI, not as an independent National establishment like the NEA. It is established as a 24 ‘bureau’. The NPG is subject to the Will of J. Smithson, not a Gov. objective. The controlling 25 mandate of the NPG is the Last Will and Testament of a private individual, accepted in trust by the 26 Federal Gov. for the ‘increase and diffusion of knowledge,’ and that is it!

27 Since the SI is not a national establishment, the SI or its trustees, officers or employees cannot speak 28 as one. It must only speak according to the trust mandate contained in the Will of Smithson and

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1 enacted in Congress in 1846, ‘…an establishment for the increase and diffusion of knowledge…’ and 2 no other.

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Another contrast, for example, the National Endowment for the Arts (NEA) is a National Federal

4 Gov. Agency, subject to innumerable congressional acts to which the SI is not subject. For example, 5 the Administrative Procedure Act, of 1946; 6 “… All information about the NEA required to be published in the Federal Register may be accessed 7 at www.arts.gov… Web site contains electronic dockets for rulemakings under the Administrative 8 Procedure Act of 1946 (5 U.S.C. 551 et seq.)...” Federal Register.

9 https://www.federalregister.gov/documents/2017/06/15/2017-12071/implementing-the-federal-civil10 penalties-adjustment-act-improvements-act-of-2015 11 The NEA’s website address is www.arts.gov in comparison to the SI sites which are either .com, .edu 12 or .org and in this case the NPG is www.npg.si.edu, not .gov! Dismissing Pl.’s complaint in support of 13 Defs.’ invented legal theory by the Court in this case, would in effect change the meaning of the 14 Congressional Act of 1846, and create new legislation redefining the very legal nature of the entire SI. 15

The Gov. in relation to the SI is neither acting as Sovereign nor as Patron of the Arts, but is “merely

16 a Trustee.” Programme of Organization 1847.

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Smithsonian Institution Status in Summum, Walker, PETA & Pulphus

18 The official ‘level’ or ‘status’ of Gov. involvement and authority in the instant case is classified under 19 the title of ‘trust instrumentality,’ with which Def.s agree. And as such, the question now arises, are 20 Federal instrumentalities endowed with the authority to speak as the Federal Gov., exempting them 21 from 1st and 5th Amd. constitutional constraints?

22 Looking at the ‘Gov. Speech’ cases in (Summum, Walker, PETA & Pulphus) cited by Def.s in the 23 Motion to Dismiss, are actually beneficial to Pl. and prejudicial to Def.s. The differences in 24 Summum, Walker, PETA & Pulphus with the instant case is firstly the status of each of the Gov. 25 entities in those respective cases. The entities in Summum, Walker, PETA & Pulphus are: two 26 municipal Gov.s, one state Gov. and Congress. All of those ‘entities’ are everything Gov.ally that the 27 SI is not.

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The fatal flaw in Defs.’ theory of Gov. ‘entity’ is equating public trust/non-profit, where the Gov.’s

29 role is merely acting as a ‘trustee,’ with duly elected sovereign Gov.al representations of the voting 30 citizenry. The public mandate expressed by the People in lawful vote, is the source of the authority, 31 mandate and power of ‘Gov. Speech’. ‘Gov. speech’ does not proceed from the private will and 32 testament of one single, individual foreigner, who was not even a citizen of the United States.

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“But, as a general matter, when the Gov. speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2246 (U.S. 2015)

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“This does not mean that there are no restraints on Gov. speech…And of course, a Gov. entity is ultimately "accountable to the electorate and the political process for it advocacy." Southworth, 529 U. S., at 235. "If the citizenry objects, newly elected officials later could espouse some different or contrary position." Ibid. Pleasant Grove City v. Summum, 555 U.S. 460, 5-6 (U.S. 2009)

8 Elected individuals/offices with ‘Gov. Speech’ powers must be replaceable by elections, so the 9 citizens can replace the individuals and their policies expressed in ‘Gov. Speech,’ if they disagree with 10 the ‘Gov. Speech’. SI trustees and their assistants do not qualify for ‘Gov. Speech’ powers under this 11 condition since they cannot be voted out!

Examples of Other Gov. Instrumentalities and Application of the 1st and 5th Amd.

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13 Of particular interest is the comparison of Walker and another Supreme Court decision in LEBRON 14 V. NATIONAL RAILROAD PASSENGER CORPORATION 513 U.S. 374 (1995). In Walker, 15 we have the issue of Gov.-controlled space on car license plates, available for private expression, by 16 special order of private license plates, paid for by private citizens. The court held that the State could 17 discriminate against a license plate design, of which the State did not approve. The 1st Amd. did not 18 come into play, since the Court held that the Gov. was exercising ‘Gov. Speech,’ which entitled it to 19 decide against the design, and deny the application. Pl. accepts the Walker decision only for the sake 20 of Pl.’s argument. In Walker, the 5-4 decision was viewed with great concern by the four dissenting 21 Justices, Alito, Roberts, Scalia and Kennedy, who contend that this decision was a serious error in 22 abridging the freedom of speech, with which Pl. agrees: 23 24 25 26 27 28 29

“The Court's decision passes off private speech as Gov. speech and, in doing so, establishes a precedent that threatens private speech that Gov. finds displeasing.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2254 (U.S. 2015) “Unfortunately, the Court's decision categorizes private speech as Gov. speech and thus strips it of all First Amd. protection. The Court holds that all the privately created messages on the many specialty plates issued by the State of Texas convey a Gov. message rather than the message of the motorist displaying the plate. Can this possibly be correct?” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2255 (U.S. 2015)

30 In LeBron, we have the case of a contested Gov.-controlled space on the huge ‘Spectacular’ ad screen 31 in Penn Station in New York City, belonging to AMTRAK. Once the space was determined to belong 32 to the Federal Gov., violations of 1st and 5th Amd. rights were invoked in the denial by AMTRAK of a 33 paid private political ad. The Court determined: 34 “We hold that where, as here, the Gov. creates a corporation by special law, for the furtherance of Gov.al 35 objectives, and retains for itself permanent authority to appoint a majority of the directors of that

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corporation, the corporation is part of the Gov. for purposes of the First Amd..” LeBron v. National Railroad Passenger Corporation, 513 U.S. 374, 400 (U.S. 1995)

3 Both Gov. entities are treated differently regarding the ‘sale’ of space to private citizens for speech 4 purposes. In Walker, it is ‘Gov. speech’, in LeBron, it is protected private speech. Why the 5 difference? The difference is due to the status or nature of the Gov. ‘entity’ within which the speech 6 happens. The Court held in LeBron: 7 “Facing the question of Amtrak's status for the first time, we conclude that it is an agency or 8 instrumentality of the United States for the purpose of individual rights guaranteed against the Gov. by 9 the Constitution.” LeBron v. National Railroad Passenger Corporation, 513 U.S. 374, 394 (U.S. 1995) 10 The Court did not consider the Gov. controlled space in LeBron, and what was shown on it, to be 11 ‘Gov. Speech,’ and rightly so. In contrast we can see the Sovereign and lawfully elected Gov. of 12 the State of Texas is the ‘entity’ that exercises Gov. speech in Walker; 13 “If the Texas Department of Motor Vehicles Board approves the design, the State will make it available for 14 display on vehicles registered in Texas. ” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 15 S.Ct. 2239, (U.S. 2015) 16 Def.s assert, the SI, a Gov. ‘trust instrumentality’ is a comparable ‘entity’ to the Sovereign State of 17 Texas, having the same powers of ‘Gov. Speech’ as the duly elected state Gov. ‘entity’. Pl. rather 18 sides with the Supreme Court, in determining the SI as it truly is, a “…(trust) instrumentality of the 19 United States for the purpose of individual rights guaranteed against the Gov. by the 20 Constitution.” LeBron v. National Railroad Passenger Corporation, 513 U.S. 374, 394 (U.S. 1995) 21 Interestingly, the similarities with the instant case and LeBron are noteworthy. Pl. in LeBron filed suit 22 on 1st & 5th Amd. free speech grounds.

23 “LeBron then filed suit against Amtrak and TDI, claiming, inter alia, that the refusal to place his 24 advertisement on the Spectacular had violated his First and Fifth Amd. rights. After expedited discovery, 25 the District Court ruled that Amtrak, because of its close ties to the Federal Gov., was a Gov. actor, at 26 least for First Amd. purposes, and that its rejection of LeBron’s proposed advertisement as unsuitable for 27 display in Penn Station had violated the First Amd..” LeBron v. National Railroad Passenger 28 Corporation, 513 U.S. 374, 377 (U.S. 1995) 29 Both cases are regarding the showing of a political image/images, created/owned/paid for by a private 30 citizen/artist in, or on, Gov.-controlled public space. As a for-profit corporation, AMTRAK charged 31 Pl. in LeBron for use of the space. Although the SI is a ‘non-profit,’ the access to space by private 32 individuals sometimes, apparently operates in a similar way. In Pl.’s Amended Complaint, Pl. cites 33 the account of Actor Bill Cosby paying $716,000.00 to cover the expenses for an exhibition of his 34 personal collection of art, to boost its value in the SI African American Museum. Amended 35 Complaint page 49 lines 20-24. In both cases, Pl.s alleges 1st and 5th Amd. violations. The decision 36 in LeBron was: 37 38

“We hold that where, as here, the Gov. creates a corporation by special law, for the furtherance of Gov.al objectives, and retains for itself permanent authority to appoint a majority of the directors of that

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corporation, the corporation is part of the Gov. for purposes of the First Amd....”LeBron v. National Railroad Passenger Corporation, 513 U.S. 374, 400 (U.S. 1995)

3 Even though the SI is a Gov. ‘entity’ in the form of a ‘trust instrumentality,’ it does not rise to the level 4 of the Congressional mandate of even AMTRAK. It is similar in that the Gov. established the SI by 5 ‘special law’ in the SI Act of 1846, but the objective was that of a private will and testament, not as in 6 the case of AMTRAK “…for the furtherance of Gov.al objectives…” ibid.

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The LeBron case arrives (as if), from beneath, from an argument ‘against’ Amtrak being part of the

8 Gov. at all, and thus not liable for the protection of rights guaranteed by the Constitution; verses this 9 present case, in which Def.s argue from above, assigning un-constituted powers to a Gov. ‘trust’ 10 instrumentality. Pl. in LeBron prevailed in the Supreme Court on the application of the 11 ‘instrumentality’ definition, thus establishing grounds for Pl.’s 1st & 5th Amd. claims against Amtrak.

12 Thus, it is perfectly clear, that the SI has very, very low Gov. entity status, regardless of the imagined 13 status argued by Def.s, in their efforts to defend and exonerate the unconstitutional actions of Def.s.

14 As AMTRAK was deemed responsible for Constitutional protections, and AMTRAK ranks slightly 15 higher, as having been created with a ‘Gov.al objective’, though both remain ‘instrumentalities’. How 16 can SI exercise ‘Gov. Speech,’ when AMTRAK does not? How is AMTRAK liable for Constitutional 17 protections, and the SI is not?

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Viewpoint Discrimination in LeBron

19 On remand to the U.S. Court of Appeals Second Circuit, where LeBron was now considered in the 20 light of the 1st Amd., LeBron’s claims of ‘viewpoint’ discrimination failed. “Although Amtrak does 21 not maintain a written policy with respect to the Spectacular, its practice is clear (Bold added); it has 22 never opened the Spectacular for anything except purely commercial advertising.” LeBron v. National 23 R.R. Passenger (amtrak), 69 F.3d 650, 656 (2d Cir. 1995) 24

Here is an example where Pl.’s 1st Amd. ‘viewpoint’ violations stands and LeBron fails. Pl.’s claims

25 in the instant case of ‘viewpoint’ violations are predicated on the fact the NPG had made it a practice 26 of exhibiting political campaign art, whereas AMTRAK had never shown political ads on the 27 Spectacular screen at Penn Station, only “purely commercial advertising” (ibid).

28 Def.s are in error to argue as they have done, in an attempt to protect the SI from the unlawful, 29 unconstitutional actions of its officers. “The Constitution constrains Gov.al action ‘by whatever

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1 instruments or in whatever modes that action may be taken.’ Ex parte Virginia, 100 U.S. 339, 346 347 2 (1880).” LeBron v. National Railroad Passenger Corporation, 513 U.S. 374, 392 (U.S. 1995) 3 Since Constitutional Grounds have been established a forum analysis is required. Please see attached 4 Forum Analysis citations list.

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Second Circuit Appeals Court Forum Precedent

6 After the Supreme Court remanded LeBron, back to the United States Court of Appeals, Second 7 Circuit, the Court decided the case and considered the forum question. The Court concluded that the 8 “Spectacular is not a public forum; most likely, it is a nonpublic forum, or perhaps it is a limited public 9 forum opened for purely commercial speech.” LeBron v. National R.R. Passenger (amtrak), 69 F.3d 10 650, 656 (2d Cir. 1995) This Judicial guidance is sufficient for establishing precedent in the instant 11 case. The forum conditions are always the same in all cases. That is, they must be "viewpoint-neutral 12 and reasonable in relation to the forum's purpose." Ibid.

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“Although Amtrak does not maintain a written policy with respect to the Spectacular, its practice is clear; it has never opened the Spectacular for anything except purely commercial advertising…”(Bold added) LeBron v. National R.R. Passenger (amtrak), 69 F.3d 650, 656 (2d Cir. 1995)

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“In light of Amtrak's undisputed practice…Accordingly, Amtrak's policy of excluding noncommercial advertisements from the Spectacular will be upheld so long as the policy is "viewpoint-neutral and reasonable in relation to the forum's purpose." Calash, 788 F.2d at 84; see also Cornelius, 473 U.S. at 806 ("Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.").”LeBron v. National R.R. Passenger (amtrak), 69 F.3d 650, 656 (2d Cir. 1995)

22

The Will of Smithson is Protected Individual Free Speech Not Gov. Speech

23 Pl.’s free speech rights, as beneficiary and citizen are contained in the Will of Smithson in that the 24 ‘increase and diffusion of knowledge’ can only occur through communication, which is speech. You 25 can increase in knowledge without diffusing it. However no one would know that there was an 26 ‘increase’ of knowledge unless it was diffused, which is the free speech clause in the Will of 27 Smithson, and thus communication through words, language and pictures (art) must occur to ‘increase’ 28 knowledge amongst men, which are now forms of protected speech, since the Gov. is involved. The 29 will of Smithson can only be accomplished in and through a multitude of forms of free speech. To 30 submit such a private individual’s ‘will’, which is totally dependent on the exercise of free speech in 31 order to be accomplished, in trust to any Gov., demands restraints on the Gov.. History tells us Gov.s 32 are always disposed to infringe upon the free speech of its citizens, thus in America’s case, the reason

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1 for the existence of the Bill of Rights and especially the 1st Amd. to the Constitution. It would be 2 academic suicide if the speech mandate in the Will of Smithson were not protected by the 3 constitutional restraints of the 1st Amd.. Un-restrained Gov., and constitutionally unrestrained Gov. 4 officials, would seize the funds, abandon the will of the testator, use the money for Gov.al objects and 5 claim the institution for its own ‘Gov. Speech’! The Gov. is prohibited from ‘abridging the freedom of 6 speech’ at the SI, by claiming imaginary overreaching Gov.al status, as Def.s contend. The 7 ‘Programme of Organization’ by Joseph Henry, the first SI Secretary, specifically says; 8 9 10 11 12 13

“4. The objects of the institution are- 1st to increase, and 2nd to, diffuse knowledge among men.

5. These two objects should not be confounded with one another. The first is to increase the existing stock of knowledge by the addition of new truths; and the second, is to disseminate knowledge, thus increased, among men.

6. The will makes no restriction in favor of any particular kind of knowledge; hence all branches are entitled to a share of attention.” Programme of Organization, 1847

14 There is absolutely no ‘Gov. Speech’ provision in this founding charter and program for the SI. Any 15 claims of ‘Gov. Speech’ by SI employees to escape lawful prosecution after abridging the protected 16 speech of private citizens and beneficiaries are in violation of the 1st Amd. to the U.S. Constitution: 17 “Congress shall make no law … abridging the freedom of speech,…”, “…The Gov. of the United 18 States is merely a trustee to carry out the design of the testator. 3. The institution is not a national 19 establishment as is frequently supposed…” SI ‘Programme of Organization’, 1847 20

The Will of Smithson Under Gov. Care Creates a Free Speech Forum

21 The Will of Smithson was an individual’s last will to be expressed in speech operating under the care 22 and trust of the Gov.. As a result, and by extension, the free speech mandate creates the free speech 23 forum in which the mandate is fulfilled. This forum is a free speech forum where Gov. cannot and 24 does not speak. The forum thus created is for the free exercise of the will, which is private speech, 25 which is free speech, since it is administered by the Gov. as Trustee, thus by default, a free speech 26 forum protected by the 1st and 5th Amd.s to the U.S. Constitution is created. Defs.’ arguments are 27 seriously in error!

28 29 30

NPG is a Designated or Limited Public Forum “(a) There is established in the SI a bureau which shall be known as the NPG…(b) The Gallery shall function as a free public museum...” 20 USC 75b

31 “…free public museum…” It has to be ‘free’ since it belongs to the ‘People of the United States’ 32 because of the Smithson bequest not Gov. funds. This free access to ‘public’ property also gives

11

1 insight into the type of forum the museum was created to be. A “…free public museum for the 2 exhibition and study of portraiture and statuary…” The museum was created for artistic, historical and 3 pictorial public speech in the form of two-dimensional portraiture and three-dimensional statuary, by 4 the artists who create the art for the People of the United States, about significant members of the 5 People of the United States. The establishment states no Gov. objective. The portraits and statues are 6 not determined to be creations of the Gov. or by Gov.-commissioned artists, specifically 7 communicating a ‘Gov.’ message. The written purpose is just an extension of the private speech 8 expressed in the will, for the ‘increase and diffusion of knowledge,’ thus the space was designated for 9 ‘exhibition’ that would be the ‘diffusion’ and the ‘study’ of portraiture, which would ‘increase’ the 10 knowledge of art, of the individuals represented in the portraits, and of the artists who created them.

11 Members of the ‘People of the United States’ are to be the subjects of the museum, including Gov. 12 officials, because they are firstly, part of the ‘People,’ not because they are part of the Gov.. The 13 artists, also members of ‘the People,’ are also to have their place in the museum. We read: ‘depicting 14 men and women… and of the artists who created such…’ Thus, the NPG is a public museum created 15 for ‘The People of the United States,’ to be comprised of images of ‘The People of the United States,’ 16 created by the ‘People of the United States,’ and cared for by the Trustee (the United States Congress), 17 comprised of representatives of the ‘People of the United States.’ The SI is thus a public speech forum 18 and not a Gov. speech forum. Since it is stewarded by the Trustees, it is thus a ‘limited’ or a 19 ‘designated’ public forum for speech purposes, controlled by the will of a private individual, for ‘the 20 People of the United States.’ The trustees have fiduciary responsibilities to ensure the Will of 21 Smithson is carried out, and the specific, codified, reasonable standards and procedures for the NPG 22 are followed. Thus the parameters of the speech, expressed for a multitude of different purposes, is 23 determined by the administration of written standards and procedures established by the Board of 24 Regents and the Portrait Gallery Commission of 1962, by the museum’s curators and directors.

25 26 27 28 29 30 31 32 33 34

Smithsonian Institution Procedure for Beneficiary Participation “SI Frequently Asked Questions online: Q “I would like to donate an object to the SI. What should I do?SI FAQ answer: “The SI acquires thousands of objects and specimens each year for its collection holdings through donation, bequest, purchase, exchange, and field collecting. The Institution accepts only items that truly fill a gap in the collections and then only after careful consideration by museum curators and directors. Because of this rigorous selection ‘process’, the SI adds to its collections only a tiny percentage of what it is offered.” https://www.si.edu/FAQs - Amended Complaint. (Please note: Since this lawsuit was filed, the entire answer to this question has been changed, removing all of the elements that relate to the instant case. Pl. has requested an official explanation for this procedural change but has not received an answer.)

12

1 (Please also note in Senator Grassley’s scathing letter to the Chancellor of the SI Board Of Regents, 2 Chief Justice John Roberts, regarding the corruption at the SI in 2007, Senator Grassley specifically 3 addresses the issue of changing the rules to avoid the charges…)(Another issue to be uncovered under 4 discovery.))

5 Free Speech Activity Acknowledged, Defended and Promoted in the NPG By the SI Secretary 6 7 8 9

“…We are dealing with this issue of free speech and rights of free speech and protection, protection of individuals and allowing for free speech…” Speech on Censorship Town Hall, LA: SI Secretary Wayne Clough https://www.youtube.com/watch?v=auWM8QXGtuQ (See at minute 3:25) ‘Gov. Speech’ is never mentioned as a defense for the actions of the SI!

10 The Secretary was discussing the controversial homosexually-themed ‘portrait’ show Hide/Seek at the 11 NPG (Please see SI video https://www.youtube.com/watch?v=L4Qn7mrH_qI), with the inclusion of 12 homo-erotic art, some of which were not even portraits of significant individuals. Are we to conclude 13 that Gov. was speaking, as Def.s contend, when displaying the images of nude, sexually-aroused men 14 in a public steam bath? Or, are we to conclude that the speech is private speech, in a public institution, 15 which is a designated forum administered by the Gov.? The controversy at the NPG was over a video 16 by artist David Wojnarowicz, "Fire In My Belly," which was removed by the SI Secretary, because of 17 protests by the Catholic League’s Bill Donahue, who objected to the exhibition in the NPG because of 18 sacrilegious ‘anti-Christian’ imagery on the tax payers dime, even though that specific exhibit was 19 funded by private organizations and individuals. Was the video also Gov. speech as Def.’s contend?

20 Or is the NPG a designated public forum?

21

National Endowments for the Arts Standards vs. SI Standards

22 The Gov.’s position regarding homo-erotic content can be seen in NEA v. Finley: 23 24 25 26

“Congress also enacted an Amd. providing that no NEA funds ‘may be used to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism,…” National Endowment for the Arts v. Finley, 524 U.S. 569, 575 (U.S. 1998)

27 The NEA standards were clear: "No payment shall be made under this section except upon application 28 therefor which is submitted to the National Endowment for the Arts in accordance with regulations 29 issued and procedures established by the Chairperson. In establishing such regulations and procedures, 30 the Chairperson shall ensure that —

13

1 2 3

‘(1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.’ " National Endowment for the Arts v. Finley, 524 U.S. 569, 590 (U.S. 1998)

4 In contrast, Def. S., the Director of the SI, said in Def.’s letter of denial to Bishop E. W. Jackson: 5 “There is no ‘moral test’ for people to be accepted into the NPG, …”

6 So, how could the Congressionally-established SI ‘promote…homoeroticism’ (ibid), when at the same 7 time, the Congressionally-established NEA forbade such? The only explanation can be as Justice 8 Scalia opined: 9 10 11 12

“…there is no constitutional issue here because Gov. art subsidies fall within a zone of activity free from First Amd. restraints. The Gov. calls attention to the roles of Gov.-as-speaker and Gov.-as-buyer, in which the Gov. is of course entitled to engage in viewpoint discrimination: National Endowment for the Arts v. Finley, 524 U.S. 569, 610-11 (U.S. 1998)

13 Active Gov. ‘art subsidies’ are controlling and determining of Gov. Speech verses passive Federal Tax 14 appropriations ($700+ MILLION a year), of which the SI secures from the Smithson trust/taxes, with 15 no moral accountability. The NEA and the SI are completely different Governmental entities as 16 established above. The SI does not fulfill the role as ‘Gov. as speaker.’ The SI’s Secretary, Wayne 17 Clough, went on a coast to coast, PR media campaign, to explain why he had pulled the video, viewed 18 as sacrilegious by some. He also explained why he had left the rest of the 104 ‘homosexually’ themed 19 works of art intact in the exhibition. “Our objective is to be as inclusive as we can…” Wayne Clough, 20 Town Hall, LA 21 22 23

“People should understand that this was a unique situation: It was an exhibit that no other museum that had been approached was willing to do....” Wayne Clough, SI Secretary, https://www.huffingtonpost.com/lee-rosenbaum/SI-clough-interview_b_811261.html

24 The SI Secretary describes the NPG as a public exhibition forum that outside organizations can 25 ‘approach’ with their desire to show certain specific exhibitions. Upon accepting the offer to show the 26 exhibit, with the specific ‘homosexual’ theme, the NPG becomes a ‘designated forum’ for that subject 27 matter in that space. The SI in this case was the only museum, amongst a host of others, to accept the 28 exhibit. The controversy started after the show went public. After the show at the SI, the show 29 continued as an independent exhibit apart from the SI. 30 “HIDE/SEEK: Difference and Desire in American Portraiture was originally organized by the NPG, SI, 31 and has been reorganized by the Brooklyn Museum and the Tacoma Art Museum….”

32 https://www.brooklynmuseum.org/exhibitions/hide_seek/Page 14: 33 “Funding for the Hide/Seek exhibition came from private foundations and private individuals. “The 34 exhibition has been made possible by The Calamus Foundation with the leadership contributions of 35 Donald A. Capoccia and Tommie L. Pegues, and The Andy Warhol Foundation for the Visual Arts…”

36 http://newsdesk.si.edu/releases/national-portrait-gallery-presents-hideseek-difference-and-desire37 american-portraiture-0

14

1 2 Participation of Private Citizen Beneficiaries in the Smithsonian Free Speech Forum 3 Media Interviews with private individuals, who have shown or donated their art to the SI, show how 4 theses individuals initiated the process based upon personal benefit, desire, or motivation. Since the SI 5 is a public trust, whose sole purpose is for the benefit of the public, it is understandable why they were 6 permitted or accepted for the fulfillment of their own desires.

7 Tony Podesta: “We wanted”(Bold added) to do something for art and for democrats…(why he gave the copy 8 of the Obama ‘Hope’ poster to the NPG.) “WASHINGTON (AP) — After amassing a private collection of 9 African-American Art over four decades, Bill Cosby and his wife Camille plan to showcase their holdings 10 for the first time in an exhibition planned at the SI” 11 https://www.usatoday.com/story/life/people/2014/09/15/bill-cosbys-art-collection-to-show-at-SI/15684931/12 Amended Complaint 13

The Smithsonian Institution is Simply a Trust

14 (MTD page 3) By mischaracterizing the nature of the SI, and attributing executive or legislative 15 ‘agency’ status to it, and giving lip service to the stated fact that the SI is a ‘trust,’ Def.s have applied a 16 theory of ‘entity’ status, which dissolves the fundamental rights of beneficiary participation in the will 17 of the testator, J. Smithson (which is the sole basis for the trust, thus the very reason for the existence 18 of the SI). Def.s only mention the word ‘trust’ twice in their entire argument, in combination with 19 ‘instrumentality,’ and never once mention the word ‘will,’ ‘fiduciary’ or ‘beneficiary’. This evasion of 20 the fact that the SI is a ‘trust’ and nothing more, invalidates their defense, and gives ‘straw man’ 21 characteristics to their argument. Trusts have trustees and beneficiaries, but title to trust property is not 22 held by the trust as with a corporation. The title to trust property is equitably held by the trustees and 23 the beneficiaries for whom the trust exclusively exists, not the Federal Gov.. Beneficiaries hold 24 equitable title to trust property; beneficiaries thus have property rights accessible through the terms of 25 the will that is administered by the trustees.

26

Def.s argue against nearly a thousand years of established historic precedent in Equity and Common

27 Law dating back to the earliest historical documents concerning property rights, including 28 ‘guardianships,’ an ancient form of trustee management, contained in the Magna Carta of 1215. To 29 ignore the solemn and sacred duty of the execution of trusts is an affront on the vast body of historical 30 equity and common law governing the execution of trusts and the duties of trustees. 1st Amd. free 31 speech rights and 5th Amd. rights of ‘DPoL ’ and ‘equal protection under the law’ all apply to the SI as 32 a public trust (run by the Gov., as trustee), when dealing with trust beneficiaries, the American People.

33 Def.s argue that silencing and discriminating against the speech of a beneficiary participant of the will 34 of J. Smithson is lawful in their theory of entity status. The concept of the fiduciary duties of loyalty,

15

1 the duty of care, the duty to disclose etc., are foreign to Def.s, who fail to understand why it would be 2 a normal expectation for a trust beneficiary to receive ‘all’ the help necessary and the legally-binding 3 fiduciary duty to both answer Pl.’s letter, and to further instruct Pl. if requested by Pl., as to any other 4 options he could use in seeking relief. The opportunity was denied Pl., since Def. K. refused Pl.’s 5 appeal, and refused to answer Pl.’s letter addressed to Def. K. 6

The Sacred Fiduciary Duty in the Face of ‘Disintegrating Erosion’

7 When Def.s mention the name ‘SI,’ they are invoking the will and trust of Mr. J. Smithson. Yet, Def.s 8 immediately depart from said reality into an imaginary construct that permits and condones the breach 9 of trust committed by Def.’s S. and K.. This ‘no man’s land,’ legal scenario is at the root of the 10 systemic issues at the SI, manifest in the actions of Def.s. The very Trustees have drifted from their 11 responsibilities as fiduciaries and surrendered power and have given over control to the SI employees.

12 This is not only Pl.’s opinion, but also the official conclusion in the IRC report: 13 “The root cause of the SI’s current problems can be found in failures of governance and management.

14 The governance structure of the Institution is antiquated and in need of reform...”

15 https://www.si.edu/content/governance/pdf/IRC_report.pdf - Page 2 16 “Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden 17 to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market 18 place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of 19 behavior (bold added)...”Meinhard - Judge Cardozo Regarding Fiduciary Duty v. Salmon, 249 N.Y. 20 458, 464 (N.Y. 1928) “ The powers of a trustee are not personal to any particular trustee but, rather, are 21 inherent in the office of trustee…” Moeller v. Superior Court, 16 Cal.4th 1124, 1131 (Cal. 1997) 22 The will of Smithson named the ‘United States’ as primary beneficiary, and mankind in general, as 23 extended beneficiaries. Who or what is the ‘United States’? “We the People of the United States…”

24 -Preamble to the United States Constitution. “ A trust is a fiduciary relationship with respect to 25 property in which the person holding legal title to the property — the trustee — has an equitable 26 obligation to manage the property for the benefit of another- the beneficiary. ” Moeller v. Superior 27 Court, 16 Cal.4th 1124, 1133 (Cal. 1997) The Smithson Will does not say who will run the 28 institution, nor does it say who cannot participate in it. The bequest was a ‘gift’ to the American 29 People, for the “increase and diffusion of knowledge among men.”

Breach of Trust Constitutes Violations Of the 5th Amd. ‘DPoL ’

30

31 Just because the SI is a ‘unique’ Gov.al anomaly does not exempt the SI and its employees from the 32 constraints of the Constitution or the laws of equity. By accepting the fiduciary duties attached to the 33 role of trustee, the Federal Gov. enshrouded those fiduciary duties within the protections afforded the 34 public by the United States Constitution and the Bill of Rights. Fiduciary duty became a

16

1 constitutionally protected function of the SI. Def.s cannot pretend that there was a window in the side 2 of the deal to accept Smithson’s fortune/bequest, which allowed the Gov. to hold their fiduciary duties 3 outside the constraints of the Constitution. Violating sacred fiduciary duties, in the role as trustee by 4 the Federal Gov., violates the U.S. Constitution, and especially the 5th Amd. ‘DPoL ,’ with respect to 5 the deprivation of property. The minute the SI deprives one of its beneficiaries of their rights of 6 participation in the Will of J. Smithson, they have deprived the beneficiary of their lawful property, as 7 in the instant case.

8

Trusts are Relationships

9 Participation in the will of Smithson was not limited to the Gov.. The Gov. was merely a trustee of the 10 will, who took on the responsibility to create an ‘…establishment for the increase and diffusion 11 knowledge,’ which is still in effect and ongoing. Beneficiaries are the essence of the Smithson will, 12 not just passive recipients, but active participants, since the will is open-ended, and not specific as to 13 who does what. Congress, in becoming trustee, facilitates the performance of the will. Beneficiaries, 14 the American People, participate actively and passively in the ‘increase and diffusion of knowledge’.

15 Beneficiaries actively participate by donation, bequests and loans to the museum; the museum 16 participates by acquisition and swaps in order to acquire artifacts.

17 “Portraits were among the earliest art works that the SI acquired in the 1840’s, and were displayed 18 alongside other art works at the Institution for the next century. In 1919, interested citizens began active 19 lobbying (bold added) for a separate gallery devoted to American portraiture.” NPG 20 https://siarchives.si.edu/history/national-portrait-gallery 21 Here it can be seen that ‘interested citizens’ were the genesis of the portrait gallery. They began 22 ‘active’ lobbying for ‘a separate gallery…’ Thus, proof of active beneficiary participation and 23 direction from the beneficiaries in the ‘increase and diffusion of knowledge.’ Trustees have 24 established rules, ethics, procedures and standards by which the trust functions and by and through 25 which Beneficiaries can participate. Trust Beneficiaries, the American People, hold equitable title to 26 Smithson’s property, thus a clearly established property right to the SI Property. Trustees adjudicate 27 the will and determine reasonable standards of participation.

28 “The SI is a public trust whose mission is the increase and diffusion of knowledge. The SI was 29 established by the United States Congress to carry out the fiduciary responsibility assumed by the 30 United States in accepting the bequest of J. Smithson to create the SI… 31 We are accountable to the general public as well as to the SI’s multiple stakeholders in carrying out 32 this responsibility. We recognize that the public interest is paramount… Serving the SI is a privilege 33 and those who work on its behalf have a responsibility to maintain the highest standards of honesty, 34 integrity, professionalism, and loyalty to the Institution.” -SI Statement Of Values and Code of 35 Ethics, 2007 “A fiduciary duty is the highest standard of care… If an individual breaches the fiduciary 36 duties, he or she would need to account for the ill-gotten profit. His or her beneficiaries are entitled 37 to damages, even if they suffered no harm. https://www.law.cornell.edu/wex/fiduciary_duty

17

1 When SI fiduciary duties are willfully violated without the ‘DPoL ’ by Federal trust officers, because 2 of personal animus, personal agendas and political bias, trust officers deprive trust beneficiaries of 3 their property rights without the ‘DPoL ’ and, as in the instant case, they deprive citizens their rights 4 under the United States Constitution.

5 6 7 8 9

The Right to Benefit from the Property as Specified in the Trust “The beneficiaries retain what is known as equitable title, the right to benefit from the property as specified in the trust.” https://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_4.au thcheckdam.pdf

10

SI Employees Are Trustee Delegates.

11 SI Trust employees are merely Trustee Delegates or Functional Fiduciaries who also happen to be 12 Federal employees. “SEC. 7. ..with the consent of the board of regents, employ assistants;...” -SI Act of 13 Congress 1846(Doc. C) 14 IRC REPORT TO THE BOARD OF REGENTS: “Governance and Applicable Fiduciary 15 Duties” “…Nonetheless, it is clear that the Regents are fiduciaries of the SI. First, the Regents are trustees 16 charged with managing the original Smithson trust for the benefit of the American people.7 Second, the 17 Regents are analogous to directors of a nonprofit organization and therefore must fulfill the fiduciary duties of 18 directors. While trustees and directors are both subject to duties of loyalty and care,…

19 A director has the responsibility to become informed about an issue before making a business 20 decision relating to the issue (bold added). 12 A director will fulfill the duty of care if, prior to 21 making a decision, he or she seeks out and considers all material information reasonably available 22 to him or her. To fulfill the duty of care, the directors should follow deliberate procedures and 23 consult with appropriate committees, officers or employees of the organization or other outside 24 experts in making corporate decisions (bold added)…The duty of loyalty requires a director to act in 25 the interest of the entity rather than in the personal interest of the director or some other person or 26 organization.13 More importantly, the duty of loyalty encompasses an obligation of directors and 27 key employees with financial or other decision-making authority to avoid conflicts of interest. For a 28 director, a violation of this duty may result in personal liability for a breach of fiduciary duty. For 29 the organization, such a breach may allow a court to void the corporate transaction in which a 30 conflict was present (bold added). 14...” -IRC REPORT 31 https://www.si.edu/content/governance/pdf/IRC_report.pdf Pages 28-30 (Doc. G) 32 (Copied footnotes)10 Id. 11 See 3A William Meade Fletcher, FLETCHER CYCLOPEDIA OF THE 33 LAW OF CORP. § 1029 (duty of care requires that directors perform their obligations with a minimum 34 standard of care) 12 See id. § 1034.80 (director’s failure to make a reasonable inquiry may constitute 35 breach of duty of care). 13 See id. § 837.60 36

Government Creep

37 That the Gov. acting as trustee would wall off participation in the Will of Smithson by the 38 beneficiaries, the American People, suddenly claiming Sovereign or ‘Patron of the arts’ ‘Gov. Speech’ 39 powers over the private moneys and private will defies belief. Federal employees, now operating 40 behind an impregnable wall of Constitutional unaccountability, would have pulled off a remarkable 41 heist (if true), due to the enormous scale of the bequest. Beneficiaries (if that were the case), were left 42 to, or better said, permitted to, just peer from a distance over the massive Gov.al wall at ‘their’

18

1 sparkling pile of over 100,000 gold Sovereigns1, under the care of salivating Gov. officials pacing 2 back and forth, gleefully rubbing and folding their hands!

3 4 5 6 7 8 9 10 11 12 13

Sufficient Factual Matter - Rule 12b(6) And Bivens “Def.s also move to dismiss the Pl.s' action under Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, when ruling on a 12(b)(6) motion, the court assumes that the facts alleged in the complaint are true and draws all reasonable factual inferences in the nonmoving party's favor. Edwards v. City of Goldsboro,178 F.3d 231, 244 (4th Cir. 1999). A complaint need not provide "detailed factual allegations," but it must "provide the grounds of [the Pl.’s] entitlement to relief" with "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955

14 Just because the Supreme Court discourages new causes of action under Bivens, it does not mean they 15 are prohibited. It simply means, use other appropriate remedies, but in the interest of justice, as in the 16 instant case, where no other remedies exist, a clear candidate for Bivens has arrived. It is the same as 17 the ‘disfavored’ argument, disfavored does not mean prohibited. Until Congress creates an equivalent 18 for 42-USC §1983, Bivens will and must suffice to hold federal officials personally accountable for 19 Constitutional violations.

20

Def.’s ‘straw man’ argument regarding the court weighing in on the subjective content of the

21 painting in question as a ‘special factor’ is a red herring. Pl. has requested official of record, 22 reasonable consideration according to the lawful codified SI standards of portraiture acceptance within 23 and according to the controlling will of J. Smithson, according to the ‘DPoL .’ There are no ‘special’ 24 factors in this, just the ‘DPoL .’

25

Def.’s Stale Bread Theory

26 Def.s contend that since the 2017 Inauguration is over, Pl.’s application for the Inauguration is 27 mooted, since relief specific to that event cannot be granted! This is ridiculous! Pl. never confined the 28 application just to the Inauguration of 2017; that was just the beginning! The Obama ‘Hope’ poster 29 was shown both in 2009 and 2013! In fact, had the portrait been properly and lawfully considered and 30 properly exhibited as a result, since there is no legitimate reason for it to have been rejected, the next 31 step in the life of the painting was up for grabs. Maybe the Trump portrait would have been donated 32 to the SI? Maybe it would have been acquired? Maybe it would have had its exhibition extended due 33 to the vast numbers of supporters of Pres. Trump filing through the museum to see the portrait upon

1 The property of J. Smithson arrived in the U.S. Treasury in the form of gold coins. 100,000 gold sovereigns.

2 “Curatorial freedom of expression, expertise, and authority are critical to a flourishing museum. “ Board of

19 Regents, Report of the Regents Advisory panel

“The Institution accepts only items that truly fill a gap in the collections and then only after careful consideration by

1 their visits to Washington D.C.? Maybe of course, the revenue stream created would be good 2 motivation for an extended stay? Obviously, questions and answers for now left in limbo.

3

The NPG is a national, historic, pictorial archive for the ‘increase and diffusion of knowledge’.

4 There is no expiration date, like on a loaf of bread, for historic artifacts! The passage of time increases 5 the historical value and significance. There is no time limit on the relevance of a historical work of art 6 that captures a dramatic and unprecedented political historical individual. Historic art is a unique and 7 valuable documented ‘snap-shot’ of a person or moment, anchoring the events pictorially for all to see 8 and remember for generations. May the Court notice the deprivation caused to the American People 9 when American history is edited and revised for personal and political agendas. Our grandchildren 10 will be able to learn of Pres. Obama’s historic election, Hillary Clinton’s political campaign at the 11 NPG in the arts but they will find no campaign art to represent Donald Trump’s historic win! Also, on 12 December 1st, 2016, Pl. had called Def. S. to gather information as to the options available in the 13 application process. Questions would have included duration of the initial exhibition, lending 14 procedures, acquisition procedures, etc. None of these questions were even asked or answered since 15 Def., when returning the phone call to Pl., immediately refused the painting; and the arbitrary 1116 minute argument ensued. Donald Trump is still Pres.. The tribute in the historic national archive of 17 pictorial arts can still be recorded and celebrated at any time (e.g. November 8th, 2018, January 20th, 18 2019, 2020 would be fitting dates to commemorate and pay tribute to Pres. Trump’s historic win).

19 However, the relief sought for due consideration, and the portrait’s subsequent acceptance, allows for 20 the historic portrait to be hung at any time, since it is a record of history.

21 22 23 24 25 26 27

Unchallenged Allegations Construed Favorably to the Pleader “In passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, unchallenged allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. at 236,94 S.Ct. at 1686. The complaint should not be dismissed unless it is beyond doubt that the Pl. can prove no set of facts, which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).” -Hamlet v. U.S, 873 F.2d 1414, 1416 (Fed. Cir. 1989) (MTD page 2):

28 By ignoring and sanitizing the political animus of Defs.’ egregious actions, Def.s imagine their actions 29 were lawful, guaranteeing them ‘qualified immunity’. It is a jury who must determine if there was 30 politically-motivated animus. The jury must decide if Def.s are protected by ‘Qualified Immunity.’

31 Def.s start by accepting ‘all’ of Pl.’s factual allegations as true, since the record of facts were not 32 rebutted as false, and Def.s selectively tell the story without the key details about the anti-Trump 33 political animus and bias experience at the Smithsonian affiliate the Rockwell Museum in Corning,

20

1 New York. So then, at the hands of Def.s, all the facts are accepted as true. By stating acceptance of 2 ‘all’ factual allegations as true, and yet failing to refute the claims of personal, political animus at the 3 hands of Def.s, Def.s have conceded and admitted the charge of political, anti-Trump bias and animus; 4 in effect Def.s have pled guilty to this charge. Def.s leave out critical factual details concerning the 5 official complaint filed against the SI Affiliate, the Rockwell Museum, with SI Director of 6 Affiliations, Harold Closter. Regarding the Appeal, Pl. appealed to the Board of Regents, at the 7 direction of Def. S., whose final, arbitrary statement forcefully declared: “I am the Director of the 8 NPG, your application will go no further, you can appeal my decision all you want.” Def.s continue to 9 create ‘straw man’ arguments: “Pl. alleges that the Portrait Gallery’s failure to consider his Trump 10 Portrait for display violates his First Amd. right to engage in ‘political free speech’ and consisted in 11 view-point discrimination.” Defs. thus argue that Def. S.’s11 minute phone call to Pl. was merely 12 NPG’s “failure to consider” Pl.’s Trump portrait for display. In actuality, the “failure to consider” 13 consisted of: unlawful, biased, partial, politically-motivated, anti-Trump, personally-opinionated, 14 hasty, arbitrary, 1st Amd. ‘free-speech-violating’ actions, all which ignored SI procedure. It was Def.s 15 who had created the political free speech forum by accepting and showing the political campaign 16 Obama ‘Hope’ poster for the 2009 and 2013 Inauguration of Pres. Obama, from D.C. Democrat, 17 political lobbyist Tony Podesta, who said he wanted to ‘do something for art and for Democrats,’ by 18 donating the political campaign ‘Hope’ poster. The ‘viewpoint’ discrimination happened during the 19 phone call argument from Def. S. to Pl.. The NPG displayed a political campaign poster, not created 20 from life (but falsely claimed by Def. S. to have been), of a liberal Democratic Pres.ial candidate 21 Barrack Obama. Def. S. insisted that rejection was justified because the Trump Portrait was ‘too 22 political’ and ‘too pro Trump,’ but the political, pro-Obama campaign poster was not! ‘View point’ 23 neutrality is the Constitutional standard. If some political art is accepted and displayed, then all 24 political art is acceptable and permitted. Def. S.’s ‘anti-Trump’ politics were subsequently revealed on 25 the SI National Portrait Director’s twitter page!

26

Def.s fail to address the personal, emotional and mental anguish Pl. was experiencing. Def. S.’s

27 arbitrary actions left Pl. ‘stunned and silenced.’ It was the ‘fault’ of Def.s to have failed Pl. in 28 assisting Pl. in the journey towards justice and relief. It is not the role of officials in Gov.-run 29 institutions, to intentionally trample their way through the lives of citizens by deliberately and 30 arbitrarily depriving them of their rights. They should not be mocked because they think the Gov.

21

1 should help them find relief. The notion of ‘Gov. of the people, by the people, for the people,’ spoken 2 by Abraham Lincoln has, in this case, perished from the earth.

1st & 5th Amd. ‘Viewpoint Discrimination’ in a Gov. Run Free Speech Forum

3 4 5 6 7 8 9 10 11 12 13

“When the Gov. targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amd. is all the more blatant. See R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).

Viewpoint discrimination is thus an egregious form of content discrimination (bold added)…” Rosenberger v. Rector and Visitors of Univ. of Va, 515 U.S. 819, 829 (U.S. 1995) “ The principle that has emerged from our cases ‘is that the First Amd. forbids the Gov. to regulate speech in ways that favor some viewpoints or ideas at the expense of others.’ City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804(1984).” -Lamb's Chapel v. Center Moriches Sch. Dist, 508 U.S. 384, 394 (U.S. 1993) "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . ." Brooklyn Institute of Arts v. City of New York, (e.d.n.y. 1999), 64 F. Supp.2d 184, 198 (E.D.N.Y. 1999)

14

(Please see Forum Analysis Citations Attached.)

15 Def. S.’s 1st and 5th Amd. violations happened on 12/01/16 at 11:23 a.m, when Def. called Pl.’s cell 16 phone. (Amended Complaint pages 24 and onwards). Def. S. stated that the Trump Portrait was ‘not 17 created from life’. Pl. challenged Def. S., since the objection was totally arbitrary. The Obama ‘Hope’ 18 poster, exhibited for two Pres. Obama inaugurations, in the NPG, was not created from life. Rather, it 19 was a photo-shopped and posterized photo by AP photographer Mannie Friedman, copied from the 20 Internet, by artist Shepherd Fairey. (Pl. is intimately acquainted with the story of the Obama ‘Hope’ 21 poster.) Def. S. insisted the Obama poster was created from life, which is false. An argument erupted.

22 Def. S. did not retreat to research and confirm her position. After loudly and forcefully insisting that 23 Def. S. was right, Def. S. shifted to another objection, since Pl. refuted the false claims about the 24 Obama ‘Hope’ poster. ‘Too pro-Trump” Def. S. now objected. This is clearly a content-based 25 ‘viewpoint’ objection. Def. insisted that a ‘more neutral’ viewpoint would have been more suitable, 26 thus objecting to the content/viewpoint, that was symbolic, personal, patriotic, political, Pres.ial, 27 Electoral, etc.. As Def. S. objected to the content of the painting, Def. S. was forced to justify the 28 presence of the ‘George Washington’ Lansdowne portrait at the NPG. Def. began to defend the NPG 29 for having the Lansdowne portrait. Def. knew that the objections given to the Pl. were arbitrary and 30 hypocritical. Def. S. began the justification for the presence of the Lansdowne painting, which is not a 31 ‘traditional’ head and shoulders portrait, but a full-body painting with a fully-developed background, 32 layered in symbolism in order to pacify Def.’s guilty conscience, in refusing the Trump portrait, which 33 turns out to be another example of viewpoint discrimination. Again, here was a clear objection to the 34 Trump portraits content, because it caused Def. to rationalize the double standard and hypocrisy of

22

1 Def.’s position. Pl. at the time wondered why Def. repeatedly mentioned the Lansdowne portrait 2 whilst objecting to the content of the Trump portrait. For the Qualified Immunity argument later to be 3 addressed, this guilty conduct is evidence that Def. knew she was breaking the law by violating the 4 lawful standards that permitted the presence of the Lansdowne portrait. Yet, Def. S. violates that 5 lawful process, by denying another painting, containing a similarly-developed, symbolic background.

6 Def. knew exactly that Def.’s content/viewpoint objection was unlawful, and thus violated both Pl.’s 7 1st Amd. free speech rights, and the 5th Amd.’s ‘DPoL ’.

8

In the same way, Def. S.’s objection to the size of the painting as being ‘too big’, was also a

9 violation of lawfully established procedure, hence the violation of the ‘DPoL .’ This objection was not 10 immediately content-based, but pre-textual, by objecting to the physical size, in order to reject the 11 content. There are no size restriction guidelines at the NPG like in Def.’s cited case in Pulphus, where 12 a clear written ‘size’ standard existed and was exceeded by Pl. Pulphus in that case. Pulphus’s 13 painting was required to conform to the size. By correcting the size of the decorative frame, the 14 painting then qualified.

15

In the instant case, Def. S. invented an arbitrary scale standard to object to the content. As Pl.

16 objected to the arbitrariness of the objection to the size of the portrait, Def. S. quickly and 17 apologetically retracted the invented objection, evidencing a conscious knowledge of the lack of an 18 existing lawful standard. For the 2013 Presidential Inauguration two huge 6x8 ft. portraits of Pres.

19 Obama were exhibited, to celebrate Pres. Obama’s win, obviously played a part in triggering guilt in 20 Def. S..

21

Viewpoint Discrimination & ‘Practice’ in LeBron v. AMTRAK

22 “…its practice is clear(bold added); it has never opened the Spectacular for anything except purely 23 commercial advertising.” LeBron v. National R.R. Passenger (amtrak), 69 F.3d 650, 656 (2d Cir. 1995) 24 Here is the perfect example of where Pl.’s 1st Amd. ‘viewpoint’ violations stand and LeBron fails.

25 Pl.’s claims, in the instant case of ‘viewpoint’ violations, are predicated on the fact that the NPG had 26 made it a practice of exhibiting from a liberal, Democrat ‘viewpoint’ (political campaign art), whereas 27 AMTRAK had never shown political ads on the ‘Spectacular’ screen at Penn Station, only ‘purely 28 commercial advertising’ (ibid). Def. S.’s arbitrary objection that the Trump portrait was ‘too political’ 29 and the Obama ‘HOPE’ poster was not, is a clear case of viewpoint discrimination, violating the law 30 of ‘viewpoint neutrality.’

23

1

Bivens & The Constitutional Right to be Free From Political ‘Viewpoint’ Discrimination’

2 Pl.’s First Amd. ‘viewpoint’ free speech discrimination claims also fits under the ‘equal protection’ 3 clause of the 5th Amd. ‘DPoL’. That was the bases for the Bivens Actions landmark decision in Davis 4 v. Passman. “If the case is different in a meaningful way from previous Bivens cases decided by this 5 Court, then the context is new.” Ziglar v. Abbasi, No. 15-1358 (U.S. Jun. 19, 2017). Although Pl.’s 6 First Amd. claims in the instant case may create a new context, Pl.’s 5th Amd. Claims, especially the 7 2nd count regarding the ‘equal protection under the law’ is not a new context.

Viewpoint Discrimination and the 5th Amd.

8

9 Violations of the Fifth Amd.’s ‘equal protection’ clause have already been established as a valid cause 10 of action for a Bivens Action against federal officers: “The equal protection component of the Due 11 Process Clause thus confers on petitioner a federal constitutional right to be free from gender 12 discrimination…(bold added).” Davis v. Passman, 442 U.S. 228, 235 (U.S. 1979) The Court in 13 Passman could have easily written what was stated above without the qualifying term ‘gender,’ in that 14 it is discrimination of any kind that is the constitutional violation of the equal protection clause. In 15 the instant case, that ‘being free from discrimination’ would also include the right to be free from 16 personal, political and anti-Trump ‘Viewpoint discrimination’.

17 “The Fifth Amd. provides that "[n]o person shall be . . . deprived of life, liberty, or property, without 18 DPoL . . . ." In numerous decisions, this Court "has held that the Due Process Clause of the Fifth Amd. 19 forbids the Federal Gov. to deny equal protection of the laws. E. g., Hampton v. Mow Sun Wong, 426 20 U.S. 88, 100 (1976); Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 21 638 n. 2 (1975); Bolling v. Sharpe, 347 U.S. 497, 500 (1954)." Vance v. Bradley, 440 U.S. 93, 95 n. 1 22 (1979).” Davis v. Passman, 442 U.S. 228, 234 (U.S. 1979)“It is equally clear, and the en banc Court of 23 Appeals so held, that the Fifth Amd. confers on petitioner a constitutional right to be free from 24 illegal discrimination.”(Bold added) -Davis v. Passman, 442 U.S. 228, 236 (U.S. 1979) 25

‘Class of One’ Equal Protection Under The Law

26 Def.s argue that Pl. does not qualify for equal protection under the law because Pl. ‘fails to allege that 27 similarly situated individuals were treated differently than he was…’ and yet, Pl. clearly cites four 28 individuals in the Amended Complaint who were treated very differently, because ‘they’ had their art 29 accepted, hung and celebrated in the SI. They are: Bill Cosby, Tony Podesta and Ian and Annette 30 Cummings. Examining the ‘Similarly Situated’ conditions are critical to establishing an ‘equal 31 protection claim.’

32 33 34 35 36

Plaintiff was ‘Similarly Situated’ 1. Pl. is a U.S. Citizen and Beneficiary of the Will of J. Smithson like Bill Cosby, (Page 49, lines 20-24 Amended Complaint), Tony Podesta and Ian & Annette Cummings. 2. Pl. possesses title and ownership to a historic, victorious Pres.ial campaign-related portrait, like Podesta’s ‘Hope’ portrait. 3. Pl. similarly wanted to do something for art and Republicans, like Podesta wanted to

24

1 2 3 4 5 6 7 8 9

do for art and Democrats in the 2009 Pres.ial Inauguration. (Amended Complaint p.3, line 1114) 4. Pl. similarly wanted to show his art at the SI in concert with the 2017 Inauguration festivities for the Pres. of the United States, in the People’s portrait gallery, in the People’s Capitol, Washington D.C. 5. Pl. similarly approached the NPG offering his huge, Trump portrait on loan for the Presidential Inauguration, like billionaires Ian and Annette Cummings did for the 2013 Presidential Inauguration, when their two, huge, Chuck Close, Obama portraits were hung alongside Tony Podesta’s donated ‘Hope’ poster by Shepherd Fairey. (Page 27, lines 20-26 Amended Complaint.) 6. Billionaires Ian and Annette Cumming’s offer was accepted; Pl.’s was rejected as “too big.”

10 11 12 13

“To qualify for “class of one” equal protection, an individual must first show that he or she was treated differently from similarly situated persons and that the different treatment was intentional and had no rational basis.” https://www.law.cornell.edu/wex/equal_protection

14

Pl.’s entire case, claims (from the first interaction with SI Affiliate, the Rockwell Museum), that Pl.

‘Class of One’

15 was ‘singled out because of his membership in a particular political class,’ and suffered political, 16 viewpoint discrimination as a Trump supporter. Pl.’s official complaint to the SI Affiliations Director, 17 Harold Closter, was based upon the Rockwell’s Director, Kirstin Swain and SI Executive Liaison 18 Patty Campbell’s obvious refusal to assist Pl. because of political discrimination. This context of 19 political discrimination was the environment in which the Def.s, in the instant case, would 20 discriminate against Pl. because of Pl.’s political beliefs and membership in a particular group. Def.s 21 ignore this context of discrimination, which allows them to argue that Def.’s behaved rationally as 22 they exercised their duties.

23 ‘Rational Basis’ 24 (Definition) ‘Rational’, adjective: based on facts or reason and not on emotions or feeling: having 25 the ability to reason or think about things clearly-Webster’s Dictionary. Def.s wish to have the 26 Court believe that the Def.s acted rationally and “…did not think Pl.’s portrait was appropriate 27 for display,”(Bold Added) because they said so! (Page 3, Motion to Dismiss.) Such a statement 28 without qualification is unlawful. (Def.’s fail to cite any official written standards.) If 29 “appropriate” (ibid.) is not defined, it is arbitrary. Defs.’ statement is irrational, because it creates 30 an arbitrary standard, which is subjective. ‘Appropriate,’ by definition, is a standard, determining 31 whether something is ‘suitable or fitting for a particular purpose, occasion etc…’ In the instant 32 case, the consideration was for the most recognized and officially supported portrait of the then 33 Pres. Elect, Donald Trump. Said portrait was to be considered for exhibition and study in a 34 portrait gallery for the American People, specifically dealing with portraits of American People 35 who had “made a significant contribution to American history, development and culture.” Said 36 public gallery has the practice of hanging Presidential, politically inspired, campaign art, by 37 grassroots artist, for Presidential inaugural festivities. To claim, as Def.s do, that the portrait was 38 neither “appropriate” nor fitting for the occasion was irrational, unless of course, there was some

25

1 legitimate violation of a binding, opaque or written standard. The portrait was appropriate and did 2 not violate any written standards. The portrait was rejected because of personal, political animus 3 on behalf of the gallery officials, in this case, Def.s S. and K.. The NPG officials did not travel to 4 see the original as did officials from the Smithsonian American Folk Museum to see the giant 5 ‘anti-Trump’ painting they were going to display at the Smithsonian American Folk Museum!

6 http://pittsburgh.cbslocal.com/2017/02/03/police-giant-anti-trump-sign-stolen-from-front7 yard/ 8

The Rational Test

9 If Def.s had written: “Def.s did not think Pl.’s portrait was appropriate for display, because it violates 10 these SI standards:…x…y. and z,” then the statement would be rational. Without basing this 11 conclusion on any legally established, SI standards, which are subject to the Constitutional constraints 12 of the ‘DPoL ’, Def.s have vindicated Pl.’s arbitrariness claims. Defs.’ refusal to make a record in 13 support of this vague, now created, ‘appropriateness’ standard, which by all accounts Defs.’ have 14 invented, again defeats Defs.’ claim of being rational. By all accounts, Defs.’ personal, political 15 animus is hidden now behind vague claims to reasonableness, which are then self-defeated by 16 obfuscation, since they willfully refused to write anything down (which is required by written statute 17 and is both reasonable and rational official conduct), according to SI Standards, procedures and ethics, 18 (which is required by the ‘DPoL ’). Being intentionally singled out as a member of a certain group as a 19 Trump supporter will be proven in this case by a preponderance of evidence at trial, that Pl. was 20 entitled to his Constitutional right of the 5th Amd.’s ‘equal protection under the law.’

21

NPG’s Ongoing ‘Practice’ is Binding

22 As can be seen by the ruling above in LeBron, at the Court of Appeals, it was the on-going ‘practice’ 23 of AMTRAK to not allow political, non-commercial advertisements, (which determined that there 24 were no grounds for LeBron to have his political ad displayed), and thus ‘viewpoint’ discrimination 25 could not occur. In the instant case, the situation is reversed, in that it is the on-going ‘practice’ at the 26 NPG to acquire and exhibit political campaign art, as demonstrated by the acquisition and exhibition 27 of both the Hillary Clinton campaign art and the Obama ‘Hope’ poster, created by grass roots activist 28 artists, not officially involved in the various campaigns. Thus having Pl.’s political campaign-related 29 portrait lawfully considered, accepted, studied and exhibited in the NPG, as part of the ongoing 30 ‘practice’ in the NPG to acquire, study and exhibit for historical purposes political, Presidential,

26

1 campaign art, should have guaranteed Pl.’s Trump portrait to receive all due procedural considerations 2 and participation, as established by the on-going institutional ‘practice’. Denial of Pl.’s Trump 3 portrait, in the light of the ongoing ‘practice,’ could only happen as the result of multiple, similar 4 campaign-art related pieces being submitted simultaneously, and for the same purpose. If there was no 5 need for multiple pieces relating to then Pres. Elect Trump, then one piece would suffice, as the 6 historical record would require. In the absence of multiple pieces in submission, the one and only 7 Presidential campaign art, the Trump portrait, in the instant case, would by virtue of the ongoing 8 ‘practice,’ unreservedly qualify. Thus, denial of Pl.’s participation, as it relates to the ‘practice’ of the 9 institution, constitutes 1st & 5th Amd. free speech ‘viewpoint’ discrimination.

10

Violation of Congressional Statute 20 USC 75b

11 Def. S. as a foreigner, refused to consider American history, wanting instead to write Def. S.’s own 12 version, by deliberately failing to follow SI standards concerning historic research, surrounding the 13 historic ‘pro-Trump’ painting. Def. S. wanted to control the narrative, and diminish Pres. Trump’s 14 historic triumph. Def.s manifest their disregard for American History by choosing their own political 15 agenda above the accurate and honest preservation of the American historical record. The Trump 16 portrait is a Presidential, political campaign, work of art/portrait used through out the 2015-16 17 Presidential Campaign. Since a limited, or designated public forum must be ‘viewpoint neutral,’ 18 according to the category that has been accepted, (once the ‘political’ art category had been 19 established and exhibited), ‘all’ political campaign art must be permitted regardless of its ‘viewpoint’.

20

Controlling Guidelines

21 By examining the Trump portrait and the controlling guidelines at the NPG, a jury will deduce that 22 there is no standard or guideline-based reason the Trump portrait should have been rejected. The 23 Trump portrait did not violate any established ‘guidelines’ of acceptance at the NPG. Def. S.’s final 24 authoritarian declaration to Pl. reveals the depth of the anti-Trump animus to refuse historically ‘pro 25 Trump’ viewpoints into Def.’s Gallery. Def. wanted to control the historical narrative and block any 26 positive, fine art historical painting that would record and communicate the incredible, unprecedented, 27 historic and victorious election story now and for future generations of Americans, especially our 28 children’s children! Def. S. declared: “I am the Director of the NPG, your application will go no

27

1 further, you can appeal it all you want!” In simple terms, Def. S. was saying that Def. was above the 2 law, protected by absolute immunity. Nothing that Pl. could do would change the outcome of Def.’s 3 decision, because Def. was ‘god’ in the NPG. Constitutional or trust beneficiary rights could not 4 affect the outcome. Pl. had no civil rights. No Bill of Rights could protect Pl. No laws, rules, 5 standards, guidelines or appeals could change Def.’s authoritarian and absolute final decision. Def. S. 6 even used the official NPG Director’s Twitter page (now changed as no longer official 7 @NPGDirector!) to promote Def.’s anti-Trump animus. Def. S. posted an anti-Trump article on 8 1/20/17, the day of the Presidential Inauguration. Then on 1/21/17 Def.’s S tweeted photos of Def. S. 9 participating in the anti-Trump women’s protest march on D.C., is self-incriminating evidence. The 10 fact that there are no positive tweets about Pres. Trump, confirms that there was a pretext in Def.’s 11 rejection of Pl.’s Trump portrait, motivated by personal, political anti-Trump animus.

12

Controlling Guidelines Comparison

13 A comparison of the actions of Def.s, with the controlling institutional guidelines and Def. S.’s own 14 words, illuminates Def. S.’s actions as unlawful violations of established, lawful guidelines, and thus 15 violations of the 1st and 5th Amd. to the U.S. Constitution. (The primary controlling institutional 16 standard is for the “increase and diffusion of knowledge”) 17

Codification of SI NPG Rules and Procedures Creating 5th Amd. Protections

18 19 20 21 22 23 24 25 26

“There is created the NPG Commission. The number, manner of appointment and tenure of the members of the Commission shall be such as the Board may from time to time prescribe. The Board may delegate to the Commission any function of the Gallery or any function of the Board with respect to the Gallery.

The Board may make rules and regulations for the conduct of the affairs of the Commission and the operation of the Gallery, and to the extent and under such limitations as the Board deems advisable, the Board may delegate to the Commission the power to make such rules and regulations.” 20 USC 75c “The Gallery shall function as a free public museum for the exhibition and study of portraiture and statuary depicting men and women who have made significant contributions to the history, development, and culture of the people of the United States...” 20 USC 75b

27 28 29 30 31 32 33 34 35 36 37

“The SI Board of Regents appointed the first NPG Commission in 1963, which defined two main objectives for the Gallery based on its congressional mandate: acquisition and exhibition of portraits and statuary of those who have made significant contributions to the history, development, and culture of the United States; and establishment of the gallery as a research center for American biography, iconography, and history. To carry out the first objective, the commission established guidelines for accepting portraits: that works must be the best likeness possible; original portraits from life, if possible; and that all exhibitions of permanent collection portraits should be of Pres.s and First Ladies, and subjects who have been dead for at least ten years. Thus, the standards for accepting portraits varied considerably from other galleries. Even today, in every instance, the historical significance of the subject is judged before the artistic merit of the portrait, or the prominence of the artist.” (Bold added.)https://siarchives.si.edu/history/national-portrait-gallery

38 39

“There is no ‘moral test’ for people to be accepted into the NPG, instead we try to draw attention to those who have made significant impact on American history and culture, and that includes the

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1 2 3 4 5 6 7

accomplished and the reprehensible. We recognize Sanger’s advocacy on behalf of women’s health and education whilst acknowledging her sometimes deplorable beliefs.

The most admirable aspects of American culture are that we attempt to acknowledge past mistakes, engage in open and civilized discourse, and set a path towards a better future. Removing those people from the Portrait Gallery who have been less than perfect would deprive future generations of valuable lessons concerning personal ambition and achievement on one hand, and human imperfection and fallibility on the other (bold added).” Signed Kim S., Director -Letter of Denial to Bishop Jackson

5th Amd. Deprivations Without the DPoL

8 9 10 11 12 13 14

“The Fifth Amd., in the field of federal activity, and the Fourteenth, as respects state action, do not prohibit Gov.al regulation for the public welfare. They merely condition the exertion of the admitted power, by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.”Nebbia v. New York, 291 U.S. 502, 525 (U.S. 1934)

15 16 17 18

“Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U.S. 371, 375 (1971); Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172” -Carey v. Piphus, 435 U.S. 247, 266 (U.S. 1978)

19 Def. S.’s final objection during the eleven-minute phone call to Pl. was a lawless violation of SI 20 standards, constituting a violation of the 5th Amd. DPoL , by the fact that the violation of a clearly 21 written standard was the basis for the deprivation of Pl.’s property rights. Def. now insulted Pl. and 22 the Trump portrait as being ‘no good,’ regarding the artistic merit. Pl.’s painting has been seen by tens 23 of thousands of people from New York to L.A.. Even the harshest critics, those objecting to the 24 Trump subject matter, left wing artists, (including Yosi Sergant, the inspiration and patron behind the 25 Obama HOPE poster and Whitehouse liaison for the Arts under Pres. Obama), Black Lives Matter 26 protesters, Bernie Sanders supporters and many others, never questioned the artistic merit. The Trump 27 portrait was always commended for its artistic merit and excellence. The fact that the existence of the 28 Trump cartoon, a small pen and ink cartoon ‘sketch’ (mocking Trump as Icarus falling from the sky 29 with paper money flying around, depicting Trump’s financial failures), is part of the SI collection, is 30 evidence that “…the historical significance of the subject is judged before the artistic merit of the 31 portrait …” 1962 Commission standards!

32

At the National Endowment for the Arts, ‘artistic merit’ is a standard of acceptance, but at the NPG

33 it is not. The NPG written ‘guidelines’ clearly say: 34 35 36 37 38

“The SI Board of Regents appointed the first NPG Commission in 1963, which defined two main objectives for the Gallery based on its congressional mandate….Thus, the standards for accepting portraits varied considerably from other galleries. Even today, in every instance, the historical significance of the subject is judged before the artistic merit of the portrait, or the prominence of the artist (bold added).” -1962 NPG Commission.

29

1 In the instant case, the artistic merit was judged as ‘no good’, without ever seeing the original 7x15’ 2 acrylic on stretched canvas and without a prior historic consideration as required by statute.

3

Standards: ‘Items That Truly Fill a Gap’- One of the Ways the ‘Increase of Knowledge’

4

Happens at the SI Through Citizen Beneficiary Participation

5 If an item offered ‘fills a gap’ in the bank of knowledge that requires the increase, it is then ‘carefully 6 considered by museum and curators’ through a ‘rigorous selection process’.

7 8 9 10 11 12

SI Frequently Asked Questions online: Q “I would like to donate an object to the SI. What should I do?

SI FAQ answer: “The SI acquires thousands of objects and specimens each year for its collection holdings through donation, bequest, purchase, exchange, and field collecting. The Institution accepts only items that truly fill a gap in the collections and then only after careful consideration by museum curators and directors. Because of this rigorous selection ‘process’, the SI adds to its collections only a tiny percentage of what it is offered.” https://www.si.edu/FAQs - Amended Complaint

13

Defendant’s ‘Government Speech’ Argument Benefits Plaintiff

14 Defs.’ arguments in favor of their ‘Gov. Speech’ theory, using Summum, Walker, PETA & 15 Pulphus, and their ensuing efforts to undermine Pl.’s 5th Amd. claims with straw man arguments, end 16 up establishing Pl.’s 5th Amd. claims by citing Summum, Walker, PETA & Pulphus.

17

Even though the SI is not a Gov. entity like the Gov.s in Summum, Walker, PETA & Pulphus as

18 established above, and even though the SI is not subject to the Administrative Procedure Act, the SI is 19 still subject, as a Federal ‘trust instrumentality’ to the ‘DPoL ’ clause in the Bill of Rights. The ‘DPoL 20 ’ protection in the ‘deprivation of life, liberty and property…’ ensures that any action depriving any 21 citizen of a clearly established right or benefit, by any Gov. official requires that established standards, 22 procedures and ethics must as a matter of law be obeyed as they are written, thus demonstrating the 23 legality of the deprivation. No provision exists exempting Federal employees in the SI from 24 obedience and adherence to written established standards and procedures in any Federal institution, 25 thus the reason for the ‘DPoL ’ which is the protection for citizens from the arbitrary, partial and 26 biased actions of powerful officials who, because of personal political agendas use their position to 27 arbitrarily violate the will of the People and the Constitution of the United States. Pl.’s 5th Amd. 28 claims also rest on the refusal of Def.s to abide by the lawful procedures that should guide the 29 decision-making process for beneficiary participation and portraiture acceptance in the SI. Def.s could 30 not cite the SI standards, since the standards would contradict their arbitrary and politically-motivated 31 opposition to Pl.’s application.

30

The Portrait of the 5th Amendment’s ‘Due Process of Law ’

1

2 What Summum, Walker, PETA & Pulphus establish in favor of Pl.’s case is simply the right way 3 Gov. officials should function when it comes to abiding by lawful written standards, procedures and 4 the processes for considering art or any application for a benefit that is denied by the Gov. for that 5 matter. Def.s would have the court believe that their actions were lawfully and procedurally on equal 6 par with the actions of the officials in Summum, Walker, PETA & Pulphus. The propriety and 7 decency of Gov., when it functions lawfully, is a blessing secured for the People. When standards and 8 procedures are violated because of personal animus, political agendas and the abuse of power, it is 9 Gov. at its worst, as in Pl.’s case. The lengths to which the applications and submissions cited in 10 Summum, Walker, PETA & Pulphus were considered and processed, paint a dramatically different 11 picture of the ‘DPoL ,’ compared with the instant case. The cited cases speak of written and specific 12 rules, standards, factors, statutes and suitability guidelines. The decisions were explained to the 13 applicant upon denial, usually in writing. There were community considerations, public input, written 14 official input, consideration according to written standards, board meetings and the like. At every 15 step, procedure was followed to ensure a legally-sufficient decision that would stand. And in each 16 case, the Gov.’s decisions stood because of the strict adherence to the ‘DPoL ,’ which undergirded 17 their decisions.

18 Please see attached list of citations of the standards and procedures followed in Summum, 19 Walker, PETA & Pulphus: 20 In contrast to the portrait painted above in Summum, Walker, PETA & Pulphus of the ‘DPoL ’ are 21 the actions of Def.’s S. and K.. Where the instant case is similar to Summum, Walker, PETA & 22 Pulphus, is that the NPG does have written, reasonable, legally-constituted, binding standards and 23 procedures establishing the ‘DPoL ’ in the processing of trust beneficiary participation for portraiture 24 considerations at the NPG but they were ignored. Def. S.’s actions, motivated by personal, political, 25 anti-trump animus, were rushed, and delivered by an intentionally hostile phone call, that was made 26 ‘off the record,’ so that no one could know what was said. Def. S. refused to follow procedure and 27 consult with the Chief Art Curator Brandon Brame Fortune prior to making the hasty decision, less 28 than 24 hours after the application was submitted. Def. S. violated Pl.’s First Amd. free political 29 speech, Constitutional rights by discriminating against Pl.’s political viewpoint. Def. S. invented

31

1 standards, misrepresented standards, argued with Pl. in defense of falsely-created standards and false 2 information, arbitrarily objected to the artistic merit of Pl.’s portrait, ignored established SI written 3 procedures, tried to intimidate Pl. by a proclamation of Def.’s power and authority, denied and ignored 4 Pl.’s lawful appeal, cited tradition over written, lawful standards, and concurred secretly without a 5 lawful, documented, procedurally-controlled consideration and final determination, according to the 6 5th Amd.’s ‘DPoL ’. Furthermore, Def.s denied Pl. ‘equal protection under the law,’ having accepted 7 portraits from others who were both rich and famous, who gave huge financial donations, or who were 8 politically and powerfully connected to the Democratic party.

9 10 11 12 13

An Example of an Official Letter of Denial Written By Def. Sajet Rule 12b(6)“…In addition to integral and authentic exhibits, on a 12(b)(6) motion the court "may properly take judicial notice of matters of public record." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir.2009).” CHESAPEAKE BAY FOUNDATION, INC., et al. v. SEVERSTAL SPARROWS POINT, LLC, et al., 794 F.Supp.2d 602 (2011)

14 (May the Court please take notice of the attached letter marked ‘Bishop Jackson’ written by Def. S. in 15 Def.’s official capacity, as a matter of ‘public record’ for the purposes of establishing Pl.’s 5th Amd. 16 ‘DPoL ’ violations by Def. S..) As can be seen, by the mere existence of the letter, Def. S., when not 17 motivated by personal ‘anti-Trump’ political animus, can respond officially and in writing to an 18 official written request as required by the ‘DPoL .’ Def. S. gives the reasons why Def. denies the 19 request made by Bishop Jackson, including a petition consisting of 15000 plus signatures from the 20 People/citizens/trust beneficiaries and the support of a host of Pastors and Congressmen, to remove the 21 bust of Margaret Sanger.

22 “There is no ‘moral test’ for people to be accepted into the NPG, instead we try to draw attention to those 23 who have made significant impact on American history and culture, and that includes the accomplished 24 and the reprehensible. We recognize Sanger’s advocacy on behalf of women’s health and education 25 whilst acknowledging her sometimes deplorable beliefs. The most admirable aspects of American culture 26 are that we attempt to acknowledge past mistakes, engage in open and civilized discourse, and set a path 27 towards a better future. Removing those people from the Portrait Gallery who have been less than perfect 28 would deprive future generations of valuable lessons concerning personal ambition and achievement on 29 one hand, and human imperfection and fallibility on the other.” Signed Kim S., Director 30 Def.’s letter of denial, confirms the bias and hypocrisy in Def.’s rejection of the Trump Portrait. Why 31 did Def. not write a similar response to Pl. indicating the ‘reasons’ in the light of the ‘moral’ test cited 32 by Def. S.? It is stunning to read: “Removing those people from the Portrait Gallery who have 33 been less than perfect would deprive future generations of valuable lessons concerning personal 34 ambition and achievement on one hand, and human imperfection and fallibility on the other.”

35 Does this explanation not utterly condemn the actions of Def. S.? Does this statement not apply 36 perfectly to Pres. Trump? Donald Trump’s story and achievement is one of the most remarkable

32

1 stories in American history! Does the fact that Defs.’ rejection of the historically significant and 2 relevant 2015/16 historic election campaign Trump portrait not “…deprive future generations of 3 valuable lessons concerning personal ambition and achievement on one hand and human imperfection 4 and fallibility on the other?” ibid 5

Def.s could not write a similar letter of denial on the record, as a matter of the ‘DPoL ’ to Pl.’s

6 application to show the historic, Trump Portrait, because Def.s had no legitimate SI-based standards to 7 cite. Def.s violated the law in order to accomplish their hostile, anti-Trump political agenda. The 8 Trump Portrait qualified in every way. Whether or not Pres. Trump is viewed as ‘accomplished or 9 reprehensible,’ the Pres.’s historic story, contained in the Trump Portrait, captures the historic election 10 like no other image, being the most recognized campaign/Pres.ial hand-painted fine art portrait in 11 existence.

12

Def.s rather chose an irrelevant, outdated photo from 1989 with no election-related Pres.ial,

13 historical significance. There are millions of photos of Donald Trump, but only one Pres.ial campaign14 related, hand-painted portrait by a professional artist from the 2015-16 victorious Pres.ial campaign!

15 And the NPG said ‘NO’!

16

Def. K.’s Violation of the 1st Amd. & 5th Amd.’s Deprivations without the ‘DPoL ’ - Vicarious

17

Liability

18 Def. K., who is Def. S.’s superior, ‘concurred’ in writing with everything Def. S. said. (Please see 19 attached Letter.) In doing so, Def. K. became liable for Def. S.’s 1st and 5th Amd. violations. Here the 20 theory of ‘respondeat superior’ or ‘vicarious liability’ is not in force by default, but by willful, written, 21 official agreement.

22 “The Fifth Amd., in the field of federal activity, and the Fourteenth, as respects state action, do not 23 prohibit Gov.al regulation for the public welfare. They merely condition the exertion of the admitted 24 power, by securing that the end shall be accomplished by methods consistent with due process. And the 25 guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, 26 arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object 27 sought to be attained.” Nebbia v. New York, 291 U.S. 502, 525 (U.S. 1934) 28 29 30

“In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (U.S. 1970)

31 Def.s claim, that Def. K.’s letter, in response to Pl.’s lawful appeal, qualified as minimum DPoL , is 32 untenable, and yet sufficient admission by Def.s, to establish that Pl. was deserving of the ‘DPoL .’

33 Deliberately avoiding the Constitutional responsibility to lawfully hear an appeal for redress against 34 arbitrary and capricious constitutional 1st & 5th Amd. violations by a Federal employee (who happens

33

1 to be the Director of the NPG), by ignoring the appeal and then deliberately failing to respond to the 2 plain language of the written appeal, has no resemblance to the ‘DPoL .’ Adherence to the ‘DPoL ’ 3 would abide by constituted and established codified standards and procedures, acknowledge the 4 appeal, consider the written claims, charges and contents of the appeal, and provide a way (by a 5 hearing), to satisfy the appeal based upon the written standards and procedures in the SI. Deliberately 6 circumnavigating Pl.’s intentions in the ‘Letter of Appeal,’ is a violation of the ‘DPoL ’ by a Gov. 7 official to whom the ‘letter of appeal’ was directed for adjudication by the SI Board of Regents. Def. 8 K., by citing ‘recent tradition,’ as reason to ignore written SI standards and procedures, is not the 9 ‘minimum DPoL ,’ as Def.’s claim, but resembles biblical pharisaism: “For you ignore God’s law and 10 hold to the tradition of men.” Clearly the canker at the root of Def. K.’s actions is the violation of the 11 ‘DPoL ,’ by choosing ‘recent tradition’ over established standards. Def.’s S. and K. concurring 12 privately, without a written record of the discussion, creates suspicion as to their motives, the 13 truthfulness of the contents of the conversation and of how the application of lawful SI standards and 14 procedures were used to reach their conclusions. The whole reason we have a Constitution is to 15 compel Gov. officials to follow written lawful procedures, document events and create intelligible 16 records, which can be used to challenge violations. The 5th Amd. ‘DPoL ’ was designed to restrain 17 secret deliberations. Defs.’ actions in this regard are a violation of the 5th Amd. ‘DPoL ,’ since not a 18 single, lawful procedure was followed or even cited!

19

Reasonable Officers

20 Reasonable officers would have supported the ‘DPoL ’ upon receipt of the charge from the Board of 21 Regents, to ‘respond’ to Pl.’s appeal. They would have ensured that the citizen beneficiary was Def. 22 K.’s primary responsibility extending the lawful fiduciary duty of care and the protections of the 23 Constitution guaranteeing Pl. all Pl.’s rights and protections. Reasonable officers would have 24 demonstrated how Pl.’s offer to show his Trump Portrait did not satisfy the will of Smithson for the 25 ‘Increase and Diffusion’ of knowledge. Reasonable officers would have taken the time accordingly to 26 apply SI standards and show in writing how Pl.’s offer failed to ‘increase’ the existing stock of 27 knowledge. Reasonable officers, having done the historic research, in concert with the Chief Curator 28 Brandon Fortune, would have shown in writing how the Trump portrait failed the clearly established 29 Congressional mandate in 20 USC 75b and the other SI standards of portraiture acceptance.

30 Reasonable officers would have written down their decision and thus followed the ‘DPoL ,’ and thus

34

1 would not have willfully violated Pl.’s 5th Amd. ‘DPoL ’. For the Def.s to assert that the American 2 People have no rights as beneficiaries who hold equitable title to the trust is deeply disturbing. If Pl. 3 had ‘no rights’ of application or participation, then why was the application submitted by the Director 4 of Affiliations Harold Closter? If there were no rights of participation by Pl., then why did Def. S. 5 bother to call Pl.? Why not just ignore Pl., or send Pl. a letter saying, ‘Thank you, but you have no 6 rights and no grounds for participation in the SI,” or “The SI is not open to participation by the 7 public,” instead of making an unlawful, arbitrary, contradictory, dishonest, off the record eleven 8 minute phone call? Why was Def. K. obligated to respond to Pl.’s letter at the direction of the Board 9 of Regents regarding Pl.’s appeal, even though Def. K. completely ignored the fact that the letter was a 10 ‘Letter of Appeal’? When an official deliberately ignores the plain reading of the English language and 11 the plain factual content of a serious letter of appeal by a grieved citizen beneficiary, what does that 12 indicate? Pl. sent eighteen ‘Appeal’ hard copies, forty-four pages in length, to each member of the 13 Board of Regents, plus eighteen 15x30” copies of the Trump-portrait print; yet Def. K. deliberately 14 ignored Pl.’s Constitutional right to redress grievances via Pl.’s lawful appeal.

15

Standing Rule 12b(1) - Concrete Interests & Personal Benefit & Injuries in Fact

16 Pl.’s emotional injuries of mental anguish, frustration, anger, and the feeling of powerlessness at 17 having one’s rights violated, by being silenced by the federal Gov. and its officers, were clearly 18 described in Pl.’s Amended Complaint. Pl.’s injuries are real and Pl. has lived with them for over a 19 year without relief. Defs.’ lack of humility and contrition in their refusal to admit to their unlawful 20 actions, expressed in their seemingly desperate legal defense, is further injury to Pl.. Def.s continue 21 to vindicate Pl.’s claims, yet Def.s do not demonstrate a shred of the duty of care or the duty of loyalty 22 to the Constitution, the Bill of Rights or the Will of J. Smithson.

23

Concrete Benefits Deprived By Defs.’ Actions

24 Pl. is a citizen beneficiary of the Will of J. Smithson, a Congressionally established right, created in 25 the SI Act of 1846, codified in 20 USC§41, which is Pl.’s equitable property right, under the 26 protection of the 5th Amd. to the U.S. Constitution. As a citizen beneficiary, Pl. has the right to 27 participate in the Will of Smithson for the ‘increase and diffusion of knowledge’. To participate in the 28 ‘increase and diffusion of knowledge,’ in the fine arts, Pl. has procedural rights to the ‘DPoL ’ 29 regarding artistic participation, application and exhibition and/or deprivation of such in, and by, the

35

1 standards and procedures established by the SI Trustees, the Board of Regents, to secure Pl.’s citizen 2 beneficiary participation in the trust mandate. Pl. is a professional artist whose concrete benefit in the 3 participation in the NPG mandate is a right by Congressional decree. Both for the ‘exhibition and 4 study’ of Pl.’s historic, Trump portrait, and by having Pl.’s personal, art story depicted in the SI. 5 “(b) The Gallery shall function as a free public museum for the exhibition and study of portraiture and 6 statuary depicting men and women who have made significant contributions to the history, development, 7 and culture of the people of the United States...” 20 USC 75b 8 “…and of the artists (italics added) who created such portraiture and statuary.” 20 USC 75b 9

Having one’s portrait exhibited at the NPG, would be a great honor and would have a great impact

10 on Pl.’s career and on the value of the Pl.’s painting. The right to participate in the Will of J. Smithson 11 as a citizen trust beneficiary has been clearly established. Deprivation of this legal entitlement and 12 real benefit without the DPoL is a violation of 5th Amd.. The Will of Smithson makes no restriction as 13 to who can or cannot participate or contribute to the ‘increase and diffusion of knowledge.’ The Will 14 of Smithson is held in ‘Trust’ by the Gov., who is ‘merely a trustee’ on behalf of the citizen 15 beneficiaries. The role of the citizen beneficiaries is to ‘benefit’ and partake of the ‘property,’ by 16 contributing to the intention of the will, either actively or passively. The American People are the 17 beneficiaries of the property of J. Smithson held in trust by the Gov.. ‘The SI... is owned by the 18 American people.” The Board Of Regents Report of the Regents Advisory Panel. Pl. is a citizen 19 beneficiary with equitable property rights to the property of J. Smithson. Pl. has participatory rights, 20 which is Pl.’s personal benefit in the terms of the Will of J. Smithson, to be able to ‘increase and 21 diffuse knowledge’. Pl.’s ‘property’ rights are guaranteed and protected by Common Law and the 22 U.S. Constitution. Pl.’s property is held in ‘trust’ by the U.S. Gov. and enshrouded by the U.S. 23 Constitution and the Bill of Rights. The Constitution and the Bill of Rights exist to protect Pl. from 24 the unlawful deprivations of the trust benefits, abuse of power, abuse of mandate, abuse of personal 25 viewpoints, abuse of political beliefs, and the abuse of purpose expressed in a Last Will and Testament 26 of a private individual, as in the instant case, from the Gov.’s role as ‘trustee’ of the will of Smithson 27 and thus the protection from the corruption and deprivation of Pl.’s ‘property’ and ‘property’ rights.

28 These rights are protected in the 5th Amd. clause; ‘ No person…shall be deprived of life, liberty and 29 property without the DPoL ,’ and the ‘equal protection under the law.’ Def.s assert that “Members of 30 the public have no right (bold added) under the 5th Amd., to have any particular piece of work 31 considered by the portrait gallery, to participate in the Portrait Gallery’s consideration process, or to 32 appeal a decision made by the Portrait Gallery…” MTD page 3. Defs.’ argument denying Pl.’s rights,

36

1 is predicated upon Def.s refusing to acknowledge the trust status of the SI. Since Def.s have 2 concluded erroneously, they have trampled Pl.’s rights, by ignoring the conduct and subsequent heated 3 argument with Pl., during the arbitrary phone call from Director S.. It seems incredible that Def.s did 4 not even deny Pl.’s claims! Why then, if Pl. had no right to apply to have Pl.’s Trump portrait 5 considered, did the application warrant even a response from Def.s?

6

Concrete Injury

7 8 9 10 11 12 13 14 15 16

1) Injury in Fact: “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Kerchner v. Obama, 2009 U.S. Dist.

LEXIS 97546 (D.N.J. Oct. 20, 2009)” “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist (bold added). See Black’s Law Dictionary 479 (9th ed. 2009)” https://www.dataprivacymonitor.com/online-privacy/concrete-andparticularized-what-the-supreme-courts-spokeo-ruling-may-mean-for-privacy-class-actions-andbig-data-the-first-in-a-series/ “…if that harm in fact affects the recreational or even the mere esthetic interests of the Pl. that will suffice (bold added). Sierra Club v. Morton, 405 U. S. 727, 734-736 (1972).” -Summers v. Earth Island Institute, 555 U.S. 488, 5 (U.S. 2009)

17

Since a “harm in fact affects the recreational or even the mere esthetic interests of the Pl. that will

18 suffice” ibid, is sufficient for establishing a concrete injury, thus creating standing, Pl.’s injuries, in 19 fact, are well within the “concrete and particularized” ibid requirement. Pl.’s arguments have already 20 defeated Defs.’ Gov. entity theory, bringing the United States Constitution into place, where the 21 Constitution can function as it was designed, to restrain, prohibit, expose and punish tyrants.

1st Amd. ‘Free Speech’ Injuries

22 23 24 25 26 27

“Courts generally agree that the loss of First Amd. rights constitutes irreparable harm. See, e.g., Mills v.

District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (noting that "loss of [First Amd.] freedoms, 'for even minimal periods of time, unquestionably constitutes irreparable injury'"(Bold added.) (quoting Elrod v. Burns, 427 U.S. 347, 373-74 (1976))).” Pulphus v. Ayers, Civil Action No. 17-310 (JDB) (D.D.C. Apr. 14, 2017)

28

Ignored Opaque Standards

29 Def.s acted arbitrarily by circumnavigating the opaque SI Standards for portraiture acceptance. If, as 30 the Supreme Court said, “Under the First and Fifth Amd.s, speakers are protected from arbitrary and 31 discriminatory enforcement of vague standards, (See NAACP v. Button, 371 U.S. 415, 43232 433 (1963). ” -National Endowment for the Arts v. Finley, 524 U.S. 569, 588 (U.S. 1998)), how 33 much more are speakers protected from arbitrary and discriminatory actions in the face of opaque 34 standards, which Def.s completely ignored?

37

Gov. Breach of Trust/Fiduciary Duty is a 5th Amd. Deprivation of ‘Property’ Rights

1 2

It is without a doubt, one of the most grave, lofty and sacred of responsibilities, to administer the

3 Last Will and Testament of a deceased person. The testator’s final wishes, left behind on earth, in the 4 form of a will, and of legal property, for the benefit of those designated in the will and testament, 5 entrusted to trustees, are clearly established, and clearly violated by Def.s, in the instant case.

6

Def.’s unlawfully denied Pl.’s application, without due consideration to the Will of J. Smithson, as to

7 the implications that Pl., and the painting, would have on the fulfillment of the will (‘an establishment 8 for the increase and diffusion of knowledge’) - Smithson Will, and the participation therein, as the 9 over arching and controlling principle of guidance in all SI decisions, is a brazen and egregious breach 10 of trust. Pl.’s application was officially supported by official letters from Congressman Tom Reed, 11 Senator O’Mara etc., duly elected Gov.al representatives of The People, upwards of 200,000 voting 12 citizen constituents and trust beneficiaries, from upstate New York. Their recommendations were not 13 even considered by this egregious breach of trust in the administration of the Will and Trust of J. 14 Smithson.

15

The Court must compel compliance with the Will of J. Smithson!

16 In the private sector breaches of trust are severely punished by the Courts. When the Federal Gov. 17 accepts the role of Trustee, are we to imagine that the responsibility is dissolved? Are we now to 18 imagine that the trust is not clothed with Constitutional protections?

19 20 21 22 23 24 25 26 27

“Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the "disintegrating erosion" of particular exceptions ( Wendt v. Fischer, 243 N.Y. 439, 444).

Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”(Bold added.)Meinhard v.

Salmon, 249 N.Y. 458, 464 (N.Y. 1928)

28 The SI is an example of the ‘disintegrating erosion’ common to institutions. The IRC Report, cited in 29 the Amended Complaint, detailed that fiduciary duty is alien to the Board of Regents. Nothing has 30 changed since; unless the Court in the instant case acts to uphold the Court’s role in compelling 31 fiduciary fidelity in trustees, Def.’s will continue their betrayal of their fiduciary and Constitutional 32 duties. Federal breaches of trust, committed by Federal trustee delegates, violate fiduciary law and in

38

1 so doing violate the 5th Amd. ‘DPoL ,’ since the breach of trust constitutes ‘deprivations of property 2 rights,’ legally entitled to beneficiaries, in the instant case, Pl..

3 4 5 6 7 8 9 10

Injury Caused Directly or Fairly Traceable By Def.s “…. there must be a causal connection between the injury and the conduct complained of — the injury has to be "fairly . . . trace[able] to the challenged action of the Def., and not . . . th[e] result [of] the independent action of some third party not before the court." Simon v. Eastern K. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). -Simon v. Eastern Ky. Welfare Rights Org, 426 U.S. 26, 41-42 (U.S. 1976) “But the Gov. argues—briefly, and without much concrete discussion—that neither Pulphus nor Clay have standing because their injury is not "fairly traceable" to the named Def.,” -Pulphus v.

Ayers, Civil Action No. 17-310 (JDB) (D.D.C. Apr. 14, 2017)

11 In contrast, in the instant case, Pl.’s claims of concrete injuries, are directly traceable to Def.’s S. and 12 K.. This is an indisputable fact establishing standing.

13

Injuries Likely to be Redressed by the Relief Sought

14 15

“Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43. -Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (U.S. 1992)

16 17 18 19

“…in order to establish standing depend considerably upon whether the Pl. is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it (bold added). -Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (U.S. 1992)

20 It is clear that Pl. suffered concrete injuries in fact and emotional injuries at the hands of Def.s S. and 21 K.. Thus, minimum standards for standing are established and the relief sought will redress the 22 injuries.

23

Motivation: Anti-Trump Political Animus & Bivens Action

24 All the cases cited by Def.s, in support of their ‘Gov. Speech’ theory, involve clearly established, 25 written standards and the violation of these standards. Those cases are completely void of any 26 accusation of animus on the part of the Def.s. The submissions, in those cases, simply failed the 27 written standards. In every case, applications were always between individuals/groups and 28 unidentified representatives, who followed procedure, followed the standards, and then denied Pl.s, 29 based upon Pl.’s failing to meet the official standards. Written responses were made of record, even 30 further opportunities to re-apply, as in Pulphus, to try to cure the application’s deficiencies. There 31 were no accusations of personal animus manifested by the Def.s, just disagreements and claims of 32 violations regarding the official denials. In the instant case, there is great evidence of personal, 33 political animus towards Pl. and his viewpoint. Evidence must be allowed and discovery completed to

39

1 prove the state of mind of Def. S. at the time of the unlawful actions. The fact that the Director 2 personally called Pl., with the speed and manner in which Def. did, raises the question about intent.

3

From the outset, and the rejection of the Trump Painting in the Rockwell Museum, Pl. did file an

4 official complaint to the head of SI Affiliations, Harold Closter. That complaint detailed the anti5 conservative and anti-Trump bias already evidenced in the Rockwell Museum. The questions at hand 6 are: What did Dir. Closter say to Dir. S.? Did Closter forward the email containing the official bias 7 complaint against Dir. Swain and the SI Liaison? If so, would Def. S. retaliate?

8 “In the instant case, taking Pl.’s allegations as true, the Court must deny Def.’s 12(c) motion in order to 9 allow factual development of whether Def. engaged in viewpoint-based discrimination or acted out of 10 hostility or political opposition to Pl.. Pl. alleges that he was "singled out" by Def. because of both the 11 content of his speech and his viewpoint, that Def. acted "arbitrarily and capriciously," and that Def. did 12 not treat any of the other council speakers in the same fashion as Pl.. (Compl. ¶¶ 7, 8, 10.)”-Mobley v.

13 Tarlini, 641 F. Supp.2d 430, 440-41 (E.D. Pa. 2009) 14

Bivens Remedy Must Be Permitted for Redress of Constitutional Violations

15 (MTD Page 2): Pl. has stated valid claims upon which relief requested in the Amended Complaint 16 must be granted. The Supreme Court’s Ziglar/Abassi decision, establishes the boundaries to the 17 Bivens Action remedy. The examples below are just some of the differences in Ziglar/Abassi.

18 “(b) …With regard to the Executive Officials, a Bivens action…is not designed to hold officers 19 responsible for acts of their subordinates.” see Iqbal, supra, at 676. Ziglar v. Abbasi, No. 15-1358 (U.S. 20 Jun. 19, 2017) “Those claims bear little resemblance to the three Bivens claims the Court has approved in 21 the past: a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim 22 against a Congressman for firing his female secretary; and a claim against prison officials for failure to 23 treat an inmate's asthma.” (…’and claims against the NPG’s Director for ‘viewpoint’ discrimination’ 24 (added for effect to show similarity of the kind of cases.)) -Ziglar v. Abbasi, No. 15-1358 (U.S. Jun. 19, 25 2017) 26 There is absolutely no comparison with the claims in Ziglar and Pl.’s claims. Pl.’s claims are exactly 27 what the Bivens remedy was created for, since there is no other remedy available for Pl.’s 1st and 5th 28 Amd. claims.

29 30

No Special Factors Counseling Hesitation Def.s argue that special factors, in Abassi, Bush and Wilkie, etc., are the basis for ‘counseling

31 hesitation’ in the instant case. And yet, the best special factor argument Def.s produce, is to resurrect 32 their ‘straw man,’ through which they assert, that a Bivens action will: “pull the judiciary into micro33 managing selection decisions made by the SI museums. This is yet another special factor counseling 34 hesitation…” (MTD pg. 27, para. 3) This is nonsense; Bivens will simply compel SI Museums and 35 their employees to do their jobs without partiality, by enforcing compliance with all lawfully 36 constituted codified written rules, standards, procedures and ethics.

40

1 2 3 4 5 6 7

“Bivens, 403 U.S., at 396, holds that in appropriate circumstances a federal district court may provide relief in damages for the violation of constitutional rights if there are "no special factors counseling hesitation in the absence of affirmative action by Congress." See Butz v. Economou, 438 U.S., at 504.” Davis v. Passman, 442 U.S. 228, 245 (U.S. 1979) “Holding that Pl.s, "[i]n the absence of a contrary expression from Congress, . . . shall have an action under FTCA against the United States as well as a Bivens action against the individual officials alleged to have infringed their constitutional rights…” STEWART v. EVANS, 275 F.3d 1126 (D.C. Cir. 2002)

8

Def.’s ‘Entity’ Theory the Basis for Denying Constitution Constraints

9 To argue as Def.s have, admitting that the APA was designed to redress ‘arbitrary and capricious or 10 not supported by a record’ (MTDpage27 para2) actions committed by Gov. officials, seem to tacitly 11 confess to Pl.’s claims. Def.s seem to admit guilt, because Def.s are overconfident that Bivens will not 12 apply, and thus no remedy exists to redress Pl.’s Constitutional grievances, since the SI is not liable 13 under the APA. Def.s thus have contradicted their Gov. entity argument by acknowledging that the SI 14 is not liable under the APA precisely because of its status proving the SI cannot exercise Gov. speech!

15 “The fact that it (APA) (added) does not cover the SI museums does not mean that a Bivens claim 16 should be created,” can only be argued within Defs.’ theory of SI ‘entity’ status, where Constitutional 17 constraints do not exist, which is Defs.’ ‘Fatal Flaw’ at the base of Def.s entire argument.

18 “We approach this inquiry on the basis of established law. ‘[I]t is . . . well settled that where legal rights 19 have been invaded, and a federal statute provides for a general right to sue for such invasion, federal 20 courts may use any available remedy to make good the wrong done.’ Bell v. Hood, 327 U.S., at 21 684. Bivens, 403 U.S., at 396” -Davis v. Passman, 442 U.S. 228, 245 (U.S. 1979) “Bivens established 22 that the victims of a constitutional violation by a federal agent have a right to recover damages against 23 the official in federal court despite the absence of any statute conferring such a right.” -Carlson, v.

24 Green, 446 U.S. 14, 18 (U.S. 1980) 25 It is absurd to argue that Bivens is only appropriate in the 4th, 5th and 8th Amd. cases, and not in the 26 pre-eminent 1st Amd. case at hand.

27 “When the Gov. targets not subject matter, but particular views taken by speakers on a subject, the 28 violation of the First Amd. is all the more blatant. See R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).

29 Viewpoint discrimination is thus an egregious form of content discrimination (bold added). The 30 Gov. must abstain from regulating speech when the specific motivating ideology or the opinion or 31 perspective of the speaker is the rationale for the restriction. See Perry Ed. Assn. v. Perry Local 32 Educators' Assn., 460 U.S. 37, 46 (1983).” ? -Rosenberger v. Rector and Visitors of Univ. of Va, 515 33 U.S. 819, 829 (U.S. 1995) 34

Bivens Remedy And the Fifth Amd.

35 Pl.’s three arguments regarding the 5th Amd. deprivations in the instant case are: 36 1. Deprivation of Pl.’s rights because of the disregard to the ‘DPoL ’ requiring the adherence to 37 codified SI rules, standards and written procedures in the processing of Pl.’s application.

38 2. Under the ‘Equal Protection Clause’ of the 5th Amd. ‘DPoL ,’ Pl. had the right to be free from 39 viewpoint ‘discrimination’. “The equal protection component of the Due Process Clause thus confers

41

1 on petitioner a federal constitutional right to be free from …discrimination…(bold added).” -Davis v.

2 Passman, 442 U.S. 228, 235 (U.S. 1979) 3 3. That breach of trust, by Gov. in the deprivation of property belonging to citizen beneficiaries, 4 constitutes 5th Amd. ‘DPoL ’ violations.

5 6 7 8

Defendants’ Actions Do Not Qualify For Immunity “In light of these concerns, the Court has held that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U. S. 335, 341 (1986)…Ziglar v. Abbasi, No. 15-1358 (U.S. Jun. 19, 2017)

9 Defs.’ claim for ‘qualified immunity,’ creates the illusion that Def.s are lawful, low-level employees, 10 who did nothing wrong. Def.s cite Harlow v. Fitzgerald: 11 12 13

“Qualified immunity protects Gov. officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”

14 The instant case is not dealing with reasonable errors or mistakes made by reasonable officials 15 conducting official business, but willful efforts by SI authorities, that may even prove to be 16 conspiratorial upon discovery. Def. S., in the letter to Bishop Jackson, lays out Def.’s knowledge of 17 free speech at the NPG. In Def. S.’s letter denying Bishop Jackson’s petition, Margaret Sanger’s 18 “Deplorable,” ibid. racist beliefs, are defended and explained away as simply “human imperfection 19 and fallibility” ibid. . The supposed, lack of moral standards at the NPG for acceptance, should be an 20 open door for any candidate, any speech, including Pres. Donald Trump. For Def.s to argue that the 21 SI’s Director of the NPG and the SI’s Provost would have been either ignorant, confused, unclear or 22 uncertain at the time of their conduct, stating: “[their] conduct did not violate clearly established 23 statutory or constitutional rights of which a reasonable person would have known.” ibid., defies 24 belief. We are not dealing with a single accidental lapse of reason. We are dealing with the eleven25 minute phone call that was biased and arbitrary, directed at Pl. and Pl.’s portrait. Def.s S. and K. had 26 nine days between that phone call and the letter written by Def. K. on the 9th of December, to correct 27 the actions of Def. S.. Def. K. concurred with Def. S., who then continued the arbitrary denial of Pl.’s 28 appeal and application, without even citing any established rules, guidelines or standards!

29 30 31

Testing for Qualified Immunity “In Saucier, 533 U. S. 194, this Court mandated a two-step sequence for resolving Gov. officials' qualified immunity claims.” -Pearson v. Callahan, 555 U.S. 223, 10-11 (U.S. 2009)

42

1 There can be no doubt that the instant case passes the Saucier 2 step test in that:1. The facts alleged 2 clearly constitute a violation of the 1st and 5th Amd.s to the Constitution and 2. The law was clearly 3 established at the time. Def.s have failed to claim or show any evidence to prove that Def.s performed 4 their discretionary functions objectively, lawfully and reasonably. They have the burden to prove they 5 acted lawfully and reasonably. They cannot hide behind qualified immunity; they must prove they 6 qualify! And they have failed to do so.

7 8 9 10

“Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law,… If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct...” (Bold added.) Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (U.S. 1982)

11 Def. S. knew exactly what the law required at the time, as indicated by the final authoritarian 12 statement: “I am the Director of the NPG, your application will go no further, you can appeal my 13 decision all you want.” Def. S. was not asserting that Def.’s actions were ‘un-appealable’ because of 14 their lawfulness, but out of irrational hubris, claiming to be above the law and thus untouchable, giving 15 Def. S. the power to arbitrarily trample on Pl.’s rights. In Def.’s mind Pl. had no chance of redress!

16 The state of the Law at the time, regarding 1st and 5th Amd. case law, is exhaustive, when it comes to 17 settled ‘viewpoint discrimination,’ and the ‘deprivation of…property without the DPoL ,’ and the 18 ‘equal protection under the law’. Def.’s actions spanned nine days. If there was any doubt, Def.s had 19 plenty of time to lawfully fulfill their duties, and they did not!

20

Def. Sajet’s Hesitation Evidence of Consciousness of Wrongdoing

21 Def. S.’s hesitation and apologetic change of direction in Def. S.’s opening objection, as to the scale of 22 the Trump portrait as ‘too big,’ based on an invented standard by Def., was the initial violation. Def. 23 knew upon being challenged that it was unlawful prompting the apology. Def.S. should have stopped 24 there and lawfully processed the application. Instead, Def. did not stop but continued to argue 25 overriding the initial hesitation. From that moment, everything Def. argued was arbitrary, illegal, false 26 and both willfully and recklessly violating of Pl.’s Constitutional rights.

27 28 29 30 31 32

“…The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official's acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action (bold added..." Pierson v. Ray, 386 U. S. 547, 554 (1967). -Harlow v. Fitzgerald, 457 U.S. 800, 819 (U.S. 1982)

43

1 The actions of Def. S., in the instant case, mirrors the actions of Def. in Monteiro v. City of Elizabeth 2 436 F.3d 397 (3rd Cir 2006), decided by the United States Court of Appeals, Third Circuit: 3 4 5 6 7

“The speed with which she determined to eject Monteiro from the meeting, her failure to consult her fellow council members or to negotiate any compromise, and her failure to follow any established procedure could be viewed by a reasonable jury as evidence that Perkins-Auguste's behavior was emotionally charged and motivated by anger and personal animosity,…”(Bold added.) -Monteiro v.

City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006)

8 The similarities in the steps taken by Def. S., identified by Pl. in the Amended Complaint, are 9 remarkable in establishing the plausibility of Pl.’s claims that political animus was the motivating 10 factor in Def. S.’s behavior! In Pl.’s amended complaint, identical elements such as the speed/haste of 11 Def.’s actions, Def.’s failure to consult the Chief Curator Fortune2 and failure to follow established 12 procedure, ‘could be viewed by a reasonable jury as evidence’ that Def. S.’s ‘behavior was 13 emotionally charged and motivated by anger and personal animosity, rather than a desire’ to fulfill the 14 Will of J. Smithson.

15 16 17 18 19

‘Motive is a Question of Fact That Must Be Decided by the Jury’ “Although qualified immunity is a question of law …Motive is a question of fact that must be decided by the jury (bold added), which has the opportunity to hear the explanations of both parties in the courtroom and observe their demeanor…” -Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006)

20 The crux of the heated argument was the false statements Def. S. was saying about the creation of the 21 Shepherd Fairey Obama ‘Hope’ poster. Pl., knowing the story accurately, firmly disagreed with false 22 statements by Def. S., who would not ‘back down’ regarding the false statement.

23 24 25 26 27 28 29

Defendants’ Motion to Dismiss Must be Denied!

“In reviewing a motion to dismiss, all factual allegations must be accepted as true, and the Complaint must be construed in Pl.s’ favor to determine whether, under any reasonable reading of the Complaint, Pl.s may be entitled to relief…Thus, if a complaint alleges sufficient facts giving rise to a plausible claim for the deprivation of constitutional rights, the motion must be denied, and Pl.s must be given the opportunity to offer evidence in support of their claims.” Free Speech Coalition Inc, et al. v The Honorable Eric Holder, Jr. Civil Action No. 2:09-4607

30

Conclusion

31 1. The SI has been defined as to its true ‘entity’ status establishing the Court’s subject matter 32 jurisdiction concerning Constitutional claims, thus Def.s Rule 12b(1) Motion to dismiss must be 33 DENIED!

2 “Curatorial freedom of expression, expertise, and authority are critical to a flourishing museum. “ Board of Regents, Report of the Regents Advisory panel

“The Institution accepts only items that truly fill a gap in the collections and then only after careful consideration by museum curators and directors. Because of this rigorous selection ‘process’, the SI adds to its collections only a tiny percentage of what it is offered.” SI FAQs https://www.si.edu/FAQs ; Amended Complaint

44

1 2. The NPG is either a limited of designated public forum where speech must be viewpoint neutral.

2 3. Having established Constitutional grounds, Mr. Raven has accurately described his legitimate and 3 plausible claims with sufficient factual material substantiating Pl.’s claims of violations of Pl.’s 1st and 4 5th Amd. rights, upon which relief can and must be granted. Thus Def.’s RULE 12B(6) Motion to 5 Dismiss must be DENIED! 6 4. Pl. has established standing by satisfying the 3 step test by proving Pl. suffered injuries in fact.

7 5. Pl.’s injuries in fact established standing for Constitutional claims against Federal Officers S. and 8 K..

9 6. The only judicial remedy available for redressing Constitutional claims against Federal Officers is a 10 Bivens Action.

11 7. Pl.’s claims under the 1st and 5th Amd.s resemble the characteristics of previous Bivens Actions, 12 since the instant case does not contain special factors counseling hesitation, just violations of the 13 Constitution by Federal Officers.

14 8. The specific Bivens ‘DNA’ match is the right to be free from viewpoint ‘discrimination’ under the 15 5th Amd.’s ‘DPoL ’ and ‘equal protection under the law’ clauses.

16 9. Defs.’ hostile anti-Trump political animus disqualifies Def.s from immunity since the decision to 17 grant immunity as a matter of law cannot occur since Pl.’s animus claim is a disputed fact that only a 18 jury can decide after trial.

19 Defendants’ ‘Motion to Dismiss’ must be DENIED on ALL counts!

20 I, Julian Marcus Raven, Pl. in the above case, on the 22 April 2018, hereby declare that to the best of 21 my knowledge and belief, the information herein is true, correct and complete.

22 23 Julian Raven 24

25 26 2524 Co. Rt. 60, Elmira, New York, 14901 27 607-215-8711 28

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Memorandum of Law

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Page 2. CHESAPEAKE BAY FOUNDATION, INC., et al.,v. SEVERSTAL SPARROWS POINT, LLC, et al., 794 F.Supp.2d 602 (2011)

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Page 2. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (U.S. 1992)

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Page 7: Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2246 (U.S. 2015)

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Page 7: Pleasant Grove City v. Summum, 555 U.S. 460, 5-6 (U.S. 2009)

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Page 7: LEBRON V. NATIONAL RAILROAD PASSENGER CORPORATION 513 U.S. 374 (1995).

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Page 13: National Endowment for the Arts v. Finley, 524 U.S. 569, 575 (U.S. 1998)

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Page 16: Moeller v. Superior Court, 16 Cal.4th 1124, 1131 (Cal. 1997)

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Page 19: Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)

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Page 19: Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

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Page 19: Edwards v. City of Goldsboro,178 F.3d 231, 244 (4th Cir. 1999).

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Page 20: Scheuer v. Rhodes, 416 U.S. at 236,94 S.Ct. at 1686.

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Page 20: Hamlet v. U.S, 873 F.2d 1414, 1416 (Fed. Cir. 1989) (MTD page 2):

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Page 22: R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992).

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Page 22: Rosenberger v. Rector and Visitors of Univ. of Va, 515 U.S. 819, 829 (U.S. 1995)

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Page 22: Lamb's Chapel v. Center Moriches Sch. Dist, 508 U.S. 384, 394

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Page 22: Brooklyn Institute of Arts v. City of New York, (e.d.n.y. 1999), 64 F. Supp.2d 184, 198 (E.D.N.Y. 1999)

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Page 24: Ziglar v. Abbasi, No. 15-1358 (U.S. Jun. 19, 2017)

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Page 24: Davis v. Passman, 442 U.S. 228, 235 (U.S. 1979)

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Page 24: Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976)

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Page 24: 100 (1976); Buckley v. Valeo, 424 U.S. 1, 93 (1976);

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Page 24: Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975);

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Page 24: Bolling v. Sharpe, 347 U.S. 497, 500 (1954)."

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Page 24: Vance v. Bradley, 440 U.S. 93, 95 n. 1 (1979).”

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Page 29: Nebbia v. New York, 291 U.S. 502, 525 (U.S. 1934)

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Page 29: Boddie v. Connecticut, 401 U.S. 371, 375 (1971)

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Page 29: Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172”

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Page 29: Carey v. Piphus, 435 U.S. 247, 266 (U.S. 1978)

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Page 33: Goldberg v. Kelly, 397 U.S. 254, 269 (U.S. 1970)

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Page 37: Kerchner v. Obama, 2009 U.S. Dist. LEXIS 97546 (D.N.J. Oct. 20, 2009)”

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Page 37: Sierra Club v. Morton, 405 U. S. 727, 734-736 (1972).”

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Page 37: Summers v. Earth Island Institute, 555 U.S. 488, 5 (U.S. 2009)

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Page 37: Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009)

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Page 37: Pulphus v. Ayers, Civil Action No. 17-­‐310 (JDB) (D.D.C. Apr. 14, 2017)

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Page 37: Elrod v. Burns, 427 U.S. 347, 373-74 (1976)

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Page 37: NAACP v. Button, 371 U.S. 415, 432-433 (1963).

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Page 39: Simon v. Eastern K. Welfare Rights Organization, 426 U.S. 26, 4142 (1976).

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Page 40: Mobley v. Tarlini, 641 F. Supp.2d 430, 440-41 (E.D. Pa. 2009)

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Page 40: STEWART v. EVANS, 275 F.3d 1126 (D.C. Cir. 2002)

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Page 40: Butz v. Economou, 438 U.S., at 504.

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Page 41: Bell v. Hood, 327 U.S., at 684.

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Page 41: Bivens, 403 U.S., at 396

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Page 41: Carlson, v. Green, 446 U.S. 14, 18 (U.S. 1980)

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Page 41: Rosenberger v. Rector and Visitors of Univ. of Va, 515 U.S. 819, 829 (U.S. 1995)

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Page 41: R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992)

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Page 41: Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46 (1983)

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Page 42: Malley v. Briggs, 475 U. S. 335, 341 (1986)

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Page 42: Pearson v. Callahan, 555 U.S. 223, 10-11 (U.S. 2009)

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Page 43: Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (U.S. 1982)

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Page 43: Pierson v. Ray, 386 U. S. 547, 554 (1967)

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Page 43: Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006)

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Page 44: Free Speech Coalition Inc, et al. v The Honorable Eric Holder, Jr. Civil Action No. 2:09-4607

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Table of Authorities

Page 2: Smithsonian Institution Act of Congress, 1846 20 U.S. Code § 41, 42, 43

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Page 3: ‘Programme of Organization.’ Joseph Henry, The First Secretary of the SI, 1847(Doc. B)

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Page 3: This Day In SI History, SI Archives, https://siarchives.si.edu/history/this-­‐day-­‐SI-­‐history/december

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Page 3: SI Website. https://www.si.edu/ogc/legalhistory (Doc. D)

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Page 3: https://www.justice.gov/file/24096/download(Doc. E)

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Page 3: https://www.justice.gov/file/19821/download (Doc. F)

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Page 3: https://www.irs.gov/Gov.-­‐entities/federal-­‐state-­‐local-­‐Gov.s/Gov.-­‐ entities-­‐and-­‐their-­‐federal-­‐tax-­‐obligations

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Page 4: .) National Foundation on the Arts and the Humanities Act of 1965 (P.L. 89-­‐209).

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Page 5 : “(a) There is established in the SI a bureau which shall be known as the NPG…” 20 USC 75b

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Page 6: https://www.federalregister.gov/documents/2017/06/15/2017-­‐ 12071/implementing-­‐the-­‐federal-­‐civil-­‐penalties-­‐adjustment-­‐act-­‐ improvements-­‐act-­‐of-­‐2015

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https://www.si.edu/FAQs

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Page 13: https://www.youtube.com/watch?v=auWM8QXGtuQ

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Page 14: https://www.huffingtonpost.com/lee-rosenbaum/SI-cloughinterview_b_811261.html

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Page 14: https://www.brooklynmuseum.org/exhibitions/hide_seek/Page 14:

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Page 14: http://newsdesk.si.edu/releases/national-­‐portrait-­‐gallery-­‐ presents-­‐hideseek-­‐difference-­‐and-­‐desire-­‐american-­‐portraiture-­‐0

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Page 15 : https://www.usatoday.com/story/life/people/2014/09/15/bill-­‐ cosbys-­‐art-­‐collection-­‐to-­‐show-­‐at-­‐SI/15684931/-­‐

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Page 16: https://www.si.edu/content/governance/pdf/IRC_report.pdf -­‐ Page 2

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Page 16: Preamble to the United States Constitution.

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Page 17: https://siarchives.si.edu/history/national-­‐portrait-­‐gallery

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Page 17 : SI Statement Of Values and Code of Ethics, 2007

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Page 17: https://www.law.cornell.edu/wex/fiduciary_duty

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Page 18: https://www.americanbar.org/content/dam/aba/migrated/publiced/ practical/books/wills/chapter_4.authcheckdam.pdf

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Page 25: https://www.law.cornell.edu/wex/equal_protection

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Page 25: Webster’s Dictionary

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Page 26: http://pittsburgh.cbslocal.com/2017/02/03/police-­‐giant-­‐anti-­‐ trump-­‐sign-­‐stolen-­‐from-­‐front-­‐yard/

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Page 28: 20 USC 75 c and b

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Page 29: 1962 NPG Commission.

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Page 37: https://www.dataprivacymonitor.com/online-­‐ privacy/concrete-­‐and-­‐particularized-­‐what-­‐the-­‐supreme-­‐courts-­‐

spokeo-­‐ruling-­‐may-­‐mean-­‐for-­‐privacy-­‐class-­‐actions-­‐and-­‐big-­‐data-­‐the-­‐ first-­‐in-­‐a-­‐series/ •

Forum Analysis Citations “Where restrictions on free speech rights are concerned, the type of forum dictates the nature of the permissible restriction. In a quintessential public forum, typically described as public streets and parks, ‘members of the public retain strong free speech rights.’ Pleasant Grove City, Utah v. Summum, ___ U.S. ___, 129 S.ct. 1125, 1132 (2009). Content-based restrictions in such forums may be imposed only if the restrictions are necessary to serve a compelling government interest. Id. (citing Perry Educ. Ass'n v.

Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)). In addition, the government may enforce reasonable time, place, and manner restrictions which (1) are unrelated to speech content; (2) are narrowly tailored to serve a significant governmental interest; and (3) allow alternative ways of communicating the same information. Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 280 (3d Cir. 2004). The government may create designated public forums by deliberately opening government property to the public for that purpose, in which case such forums are subject to the same restrictions as the quintessential public forum. Pleasant Grove, 129 S.ct. at 1125, 1132 (citation omitted).

Alternatively, the government may create a limited forum, which is ‘limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ Pleasant Grove, 129 S.Ct. at 1132 (citation omitted). The government may impose restrictions on speech in a limited public forum, as long as the restrictions are reasonable and viewpoint neutral. Id. ( citing Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001)).

Our court of appeals has stated that, in a limited public forum, "content-based restraints are permitted, so long as they are designed to confine the `forum to the limited and legitimate purposes for which it was created.' " Eichenlaub, 385 F.3d at 280 ( quoting Rosenberger v. Rector Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995)). Thus, ‘under contemporary public forum jurisprudence, a designated (as opposed to traditional) forum is reviewed under a sliding standard that allows for content-related regulation so long as the content is tied to the limitations that frame the scope of the designation, and so long as the regulation is neutral as to viewpoint within the subject matter of that content.’ Eichenlaub v. Township of Indiana, 385 F.3d 274, 281 (3d Cir. 2004).

Viewpoint-based restrictions, however, ‘violate the First Amendment regardless of whether they also serve some valid time, place, manner interest.’ Monteiro, 436 F.3d at 404.” Galena v. Leone, 711 F. Supp.2d 440, 11-13 (W.D. Pa. 2010) “Courts in this Circuit generally follow three steps in assessing a First Amendment challenge: "first, determining whether the First Amendment protects the speech at issue, then identifying the nature of the forum, and finally assessing whether the . . . justifications for restricting . . . speech `satisfy the requisite standard.' " Mahoney v.

Doe, 642 F.3d 1112, 1116 (D.C. Cir. 2011) (quoting Cornelius v. NAACP Legal Def. Educ. Fund, Inc., 473 U.S. 788, 797 (1985)).”

Answer v. District of Columbia, 07-cv-1495 (RCL). (D.D.C. Jul. 21, 2011) “The first step here is undisputed. "[S]igns are a form of expression protected by the Free Speech Clause. . . ." City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994). That is particularly

true given the subject of the signs plaintiffs seek to post — political opinions on public issues such as war and racial profiling. Snyder, 131 S.Ct. at 1211 ("[S]peech on public issues occupies the `highest rung of the hierarchy of First Amendment values' and is entitled to special protection." (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)); City of Ladue, 512 U.S. at 54 Answer v. District of Columbia, 07-cv-1495 (RCL). (D.D.C. Jul. 21, 2011) “The second step is to determine the nature of the forum in which the protected speech occurs. This is slightly more complicated than the first step, but it still raises no serious doubt. The "lamppost[s] and appurtenances" referenced by the regulations, 24 D.C.M.R. § 108.1, are government property. Public forum doctrine "divides government property into three categories for purposes of First Amendment analysis." Oberwetter v.

Hilliard, 639 F.3d 545, 551 (D.C. Cir. 2011). One category is the traditional public forum, which encompasses public areas that have "by long tradition or by government fiat . . . been devoted to assembly and debate." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). A second category is the limited public forum or designated public forum, which comprises "public property which the State has opened for use by the public as a place for expressive activity." Id. Answer v. District of Columbia, 07-cv-1495 (RCL). (D.D.C. Jul. 21, 2011) “…The government may create designated public forums by deliberately opening government property to the public for that purpose, in which case such forums are subject to the same restrictions as the quintessential public forum. Pleasant Grove, 129 S.ct. at 1125, 1132 (citation omitted).

“Alternatively, the government may create a limited forum, which is ‘limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ Pleasant Grove, 129 S.Ct. at 1132 (citation omitted). The government may impose restrictions on speech in a limited public forum, as long as the restrictions are reasonable and viewpoint neutral… Viewpoint-based restrictions, however, ‘violate the First Amendment regardless of whether they also serve some valid time, place, manner interest.’ Monteiro, 436 F.3d at 404.” Galena v. Leone, 711 F. Supp.2d 440, 11-13 (W.D. Pa. 2010) … ("[S]peech on public issues occupies the `highest rung of the hierarchy of First Amendment values' and is entitled to special protection." (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)); City of Ladue, 512 U.S. at 54”…The "lamppost[s] and appurtenances" referenced by the regulations, 24 D.C.M.R. § 108.1, are government property. Public forum doctrine "divides government property into three categories for purposes of First Amendment analysis." Oberwetter v. Hilliard, 639 F.3d 545, 551 (D.C. Cir. 2011). One category is the traditional public forum, which encompasses public areas that have "by long tradition or by government fiat . . . been devoted to assembly and debate." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). A second category is the limited public forum or designated public forum, which comprises "public property which the State has opened for use by the public as a place for expressive activity." Id. Answer v. District of Columbia, 07-cv-1495 (RCL). (D.D.C. Jul. 21, 2011)

“…In our view, denial on that basis was plainly invalid under our holding in Cornelius, supra, at 806, that "[al]though a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum . . . or if he is not a member of the class of speakers for whose special benefit the forum was created, … the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject."(Bold added.)Lamb's Chapel v. Center Moriches Sch. Dist, 508 U.S. 384, 39394 (U.S. 1993)

List of Citations in Summum, Walker, PETA and Pulphus Summum Standards: “The City denied the requests and explained that its practice was to limit monuments in the Park to those that ‘either (1) directly relate to the history of Pleasant Grove, or (2) were donated by groups with longstanding ties to the Pleasant Grove community (bold added).’ ” Pleasant Grove City v. Summum, 555 U.S. 460, 2 (U.S. 2009) “The following year, the City passed a resolution putting this policy into writing. The resolution also mentioned other criteria, such as safety and esthetics (bold added).” Pleasant Grove City v. Summum, 555 U.S. 460, 2-3 (U.S. 2009) “Government decision makers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture (bold added). The monuments that are accepted, therefore, are (appropriate). ” Pleasant Grove City v. Summum, 555 U.S. 460, 9 (U.S. 2009) “In the wake of the controversy generated in 1876 when the city turned down a donated monument to honor Daniel Webster, the city adopted rules governing the acceptance of artwork for permanent placement in city (bold added) parks, requiring, among other things, that ‘any proposed gift of art had to be viewed either in its finished condition or as a model before acceptance.’ Brief for City of New York as Amicus Curiae 4-5 (hereinafter NYC Brief). Across the country, ‘municipalities generally exercise editorial control over donated monuments through prior submission requirements, design input, requested modifications, written criteria, and legislative approvals of specific content proposals (bold added).’ IMLA Brief 21.” -Pleasant Grove City v. Summum, 555 U.S. 460, 9 (U.S. 2009) Walker Standards: “Third, the Board may create new specialty license plates on its own initiative or on receipt of an application from a” nonprofit entity seeking to sponsor a specialty plate. Tex. Transp. Code Ann. §§ 504.801(a), (b). A nonprofit must include in its application “a draft design of the specialty license plate.” 43 Tex. Admin. Code § 217.45(i)(2)(C). And Texas law vests in the Board authority to approve or to disapprove an application. See § 217.45(i)(7). The relevant statute says that the Board “may refuse to create a ,new specialty license plate” for a number of reasons, for example, “if the design might be offensive to any member of the public ... or for any other reason established by rule.” Tex. Transp. Code Ann. § 504.801(c)...” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 224445 (U.S. 2015) “In 2010, SCV renewed its application before the Board. The Board invited public comment on its website and at an open meeting. After considering the responses, including a number of letters sent by elected officials who opposed the proposal, the Board voted unanimously against issuing the plate.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2245 (U.S. 2015) (In the instant case, numerous public officials supported the showing of the Trump Portrait with official letters and yet their support was completely ignored by the SI. (added.))

“The Board explained that it had found “it necessary to deny th[e] plate design application, specifically the confederate flag portion of the design, because public comments ha[d] shown that many members of the general public find the design offensive, and because such comments are reasonable.” App. 64. The Board added “that a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.” Id., at 65.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2245 (U.S. 2015)

PETA Standards: “The written announcement stated that "Party Animals" would showcase the "whimsical and imaginative side of the Nation's Capital" and that the Commission was looking "for artwork that is dynamic and invites discovery," "original and creative," "durable" and "safe." The Commission would not "allow direct advertising of any product, service, a company name, or social disrespect," and would impose "restrictions against slogans and inappropriate images." All designs were "subject to the Selection Committee's decision." People for Ethical Treat, Animals v. Gittens, 414 F.3d 23, 25-26 (D.C. Cir. 2005) “The written announcement also stated that the Arts Commission "reserves the right of design approval" and would own the decorated donkey or elephant.” People for Ethical Treat, Animals v. Gittens, 414 F.3d 23, 26 (D.C. Cir. 2005) “The Commission rejected this design. According to an affidavit of its executive director, PETA's proposal was "a political billboard, not art, and unlike any other design submission, it sought merely to promote a single issue and was not an artistic expression consistent with the goals, spirit and theme of the art project. The Party Animals arts project was designed to be festive and whimsical, reach a broad based general audience and foster an atmosphere of enjoyment and amusement. PETA's proposed fifth design did not complement these goals, and indeed was contrary to the Party Animals' expressive, economic, aesthetic, and civic purpose."

People for Ethical Treat, Animals v. Gittens, 414 F.3d 23, 26 (D.C. Cir. 2005) Pulphus Standards: “Members of Congress are free to establish their own methods for judging submissions and selecting a winner, but all submitted art must conform to particular "Suitability Guidelines" promulgated by the House Office Building Commission (HOBC), which is composed of the Speaker and the majority and minority leaders of the House. Pulphus v.

Ayers, Civil Action No. 17-310 (JDB) (D.D.C. Apr. 14, 2017) “The winning art must be sponsored by the House member representing the district, who must sign a form indicating that he or she approves of the artwork's content and wishes it to represent the district.” Pulphus v. Ayers, Civil Action No. 17-310 (JDB) (D.D.C. Apr. 14, 2017) “The competition is governed by rules promulgated by the HOBC. See generally 2016 Rules & Regulations. The suitability guidelines that regulate the content of the displayed artwork prohibit works "depicting subjects of contemporary political controversy" or those of a "sensationalistic or gruesome nature." Id. at B-2. All artwork must be reviewed by a panel of experts chaired by the Architect of the Capitol (AOC) before it may be displayed; artists sign a form acknowledging that the AOC panel has final say regarding suitability” Pulphus v. Ayers, Civil Action No. 17-310 (JDB) (D.D.C. Apr. 14, 2017) “In any event, a question was raised at this time about Untitled #1's size; the painting was measured, determined to be the appropriate size, and the painting was officially accepted to represent Clay's district. Ringenberg Decl. ¶¶ 5-6; Clay Decl. ¶ 11.” Pulphus v. Ayers, Civil Action No. 17-310 (JDB) (D.D.C. Apr. 14, 2017) “On June 2, 2016, the panel convened by the AOC to review the 2016 submissions conducted an inventory of all the art collected in the art intake room, and pulled aside any work that appeared to exceed the sizing guidelines—some 25 pieces, including, once again, Untitled #1. See Cohen Decl. ¶ 5, Ex. 1. Untitled #1 was identified as having an oversized frame, and the painting was returned to Clay's office in order for adjustments to be made.” Pulphus v. Ayers, Civil Action No. 17-310 (JDB) (D.D.C. Apr. 14, 2017)

Julian Raven, Artist 714 Baldwin St., Elmira, New York, 14901 November 15th, 2016 607-­‐215-­‐8711

Executive Director, Kim Sajet The Smithsonian National Portrait Gallery CC: Chief Curator, Brandon Brame Fortune Curatorial Department 8th St NW & F St NW, Washington, DC 20001

CC: Kristin A. Swain, Executive Director Of The Rockwell Museum Of Art CC: Brian Lee Whisenhunt, Incoming Executive Director OF The Rockwell Museum Of Art CC: Patty Campbell, Smithsonian Liaison at the Rockwell Museum Of Art 111 Cedar St, Corning, NY 14830

Application To Show The Trump Portrait/Painting, ‘Unafraid And Unashamed’

By Artist Julian Raven at the Smithsonian National Portrait Gallery For The Inauguration of President Elect Donald J. Trump on January 20th, 2017.

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The Presidential Portrait/Painting has an incredible backstory of inspiration and creation, complex narrative told through layered symbolism and a historic grassroots campaign journey in support of President Elect Donald J. Trump. The painting is predictive in that it depicted Donald J. Trump as the 45th President of the United States of America, it was created in the summer of 2015.

My name is Julian Raven; www.julianraven.com, I am a professional artist residing in Elmira, New York. With the historic election of Mr. Donald J. Trump, soon to be inaugurated as the 45th President of the United States of America, it is only fitting that at his inauguration, American art history and the art world be included.

As the artist who painted the prophetic, symbolic, patriotic and historic Trump portrait/painting ‘Unafraid And Unashamed’ I respectfully submit my request, to have my work on show at the Smithsonian National Portrait Gallery for the presidential inauguration on January the 20th, 2017.

The unique and compelling story of the massive, nearly 8x16 foot work of art in its final finished framed dimensions, must be told since it is the only painting to have been created at the beginning of the campaign back in the summer of 2015 by the grassroots and to have predicted the Trump Presidency and then to have been part of a historic grassroots political campaign. As an artist, I was inspired to create this portrait never having met Donald Trump. Alone and in my 6000 sq. ft. art studio in Elmira, New York, I spent nearly 600 hours wrestling with this monumental task.

Never have I had such a powerful experience of inspiration and the subsequent burning and consuming desire to embark on such a project. It is the thing of artist’s dreams to have the level of spiritual intensity rest upon me as it did.

“The mission of the National Portrait Gallery is to tell the story of America by portraying the people who shape the nation’s history, development and culture.”

In harmony with this mission statement, there is no other individual on earth right now with the prominence, fame and historic impact like President Elect Trump and there is no other painting on earth that corresponds with this most significant time in human history!

In 2009, the National Portrait Gallery established an important presidential campaign art precedent. With the showing of the Obama graphic ‘Hope And Change’ commissioned by Yosi Sergant and created by artist Shepherd Fairey on January the 17th, 2009, the relevant and pertinent historic work of art celebrated in parallel the inauguration of President Elect Barack Obama on January the 20th, 2009. http://face2face.si.edu/my_weblog/2009/01/now-­‐on-­‐view-­‐portrait-­‐of-­‐barack-­‐ obama-­‐by-­‐shepard-­‐fairey.html

Now on the heels of another unusual and totally unique Presidential election result, President Elect Donald J. Trump’s totally unprecedented election has its own historic work of art to celebrate his inauguration.

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The Trump Painting & Portrait ‘Unafraid And Unashamed’ story written on August 26th, 2016

“It began on July 9th, 2015. As I was looking intently at a photo of Donald Trump and listening to him speak, I hear the words 'Unafraid And Unashamed' ticker tape through my mind as the image of a Bald Eagle swooped down to snatch a falling American flag and flag pole. I began to find images of eagles online snatching fish out of the water to see if I could find the right posture and attitude I could see in the vision. At the time I was busy working on other projects in my studio. I went about my way, but the image did not leave my mind, it was seared onto the screen of my mind. It began to grow within, increasing in pressure as time passed, 'paint the Trump painting, Trump painting, Trump painting...' it was as if the image was saying to me, ‘get on with it’….the pressure continued to increase!

On August 20th, I finally sat down at my computer to work on the image of the Trump Painting. I worked on creating an eagle from the images I found in July that was both snatching and screaming. My 13 year old daughter Victoria, came into my office and asked me what I was doing working on an eagle, since I had told no one what I was thinking. Also it was a departure from my recent abstract expressionist work! Victoria thought I was going to build a sculpture of the eagle, since at that time, I was working in steel. I told Victoria that I was working on a painting in my mind, without telling any details. Victoria left the room and then did an about face and said out of the blue, 'Dad, why don't you paint a painting of the Eagle and give it to Donald Trump so WHEN he becomes President he can hang it in the White House.' I was stunned by the utterance, out of the mouth of babes the spirit now spoke to me. I sat there staring at her innocent and beautiful face, I was amazed, speechless and in awe! She shrugged her shoulders and left the room! Victoria had no idea I was planning to paint a painting about Donald Trump, which included a Bald Eagle; somehow she connected the dots and spoke!

The very next morning, August the 21st, I went to CNN online to see what Mr. Trump was saying that day. There was a video segment about a Time Magazine photo shoot at Trump Tower. I pressed play, as it was about a 'visitor' Trump had that morning at Trump Tower.

Who was this visitor I wondered? Suddenly, as the video rolled, there on the screen, in front of me was a photo of Donald Trump standing in his office, that very morning with a Bald Eagle perched on his arm! I was stunned! I stared at the screen in disbelief. The lighting in the photo was very strong and it looked superimposed. I actually thought it was a hoax, a fake, a Photoshop of Donald Trump with a bald eagle. That somehow, someone knew what I was thinking about The Trump Painting and was fooling with me....I continued to stare at the screen in disbelief! I felt like a car had hit me, the jolt was so powerful, it really messed with my perception; I could not believe my eyes! WOW! WOW! WOW! I was dumbfounded by this staggering series of events!

Think about it for a moment, for nearly six weeks I had been thinking daily about an image of Donald Trump's face staring out at me, a Bald Eagle rescuing symbolically the falling American flag, as I daily tried to compose the Trump Painting on the

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screen of my mind. This could have just been a good idea I had, painting a painting of Trump could be a smart move as an artist, it could be a 'big deal' for my career...But I was very busy working on other projects, steel sculpture in particular which was very exciting, more so than what was going on inside my head. But the image of the Trump Painting replayed itself daily in my mind.

The internal pressure had eventually increased to the point where I had to sit down and start actually working on the elements in the Trump painting in the physical sense. So finally I am at my computer working on the Eagle, creating a snatching & screaming Eagle. This is the first day that I sat down to work on developing image, the only day since July 9th. Then out of nowhere my daughter Victoria engages me about the Eagle and then says what she said out of left field that very night. I knew then I had to paint the painting. And then, the very next morning, I see the photo of Donald Trump in his office with the Bald Eagle perched on his arm, then the video of the Bald Eagle sitting on his desk. Amazing! I nearly fell off my chair!

There were 21 candidates running at that time on both sides, Republican and Democrat. Why was it that only Trump decided to take a picture with a Bald Eagle that morning? None of the other candidates took pictures with a Bald Eagle, as if this was some ritual that presidential candidates do when running for office. Even for Trump it was unusual. How many photos exist of Trump with an Eagle perched on his arm? Just one! If Trump was a collector of Eagles it would not be that odd, but on that day, August 21st, 2015 Donald Trump alone does a photo shoot with the Bald Eagle.

People I think interpret unusual series of events as we seek to discover God's guidance, in our efforts into tap into and understand the plan for our lives and for our tomorrows, at least that is what I do. There are ideas, visions, plans etc. we can have within ourselves, that when they are confirmed on different levels from the outside without anyone knowing what is going on inside, it indicates to me an intervention from a Source greater than self since it is now out of our control. Could this all have been coincidence or is the Hand of Destiny really in control, was this a spiritual revelation indicating Trump would become the 45th President of the United States? Remember this was last year, 2015 when Trump was up against 16 other republican candidates!

What does this all mean? What was Trump trying to say? Does this series of 'events' tell a story that is speaking of future events? Remember at that time Donald Trump was not being taken seriously. At that time and until this day Trump's candidacy has been mocked, ridiculed and 'expertly' explained as continually imploding by all manner of political professionals, commentators, experts in the media, talking heads on TV and radio pundits!

Trump has defied political gravity; Trump won the Republican nomination and defeated 16 other professional and formidable political opponents and this he did as an outsider, businessman and political novice never having been elected! Trump's candidacy has been nothing but meteoric, historic and prophetic. This story of the inspiration and creation of the Trump painting 'Unafraid And Unashamed' speaks to that very fact and is a physical 'sign' that captures this historic presidential race like

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nothing else by painting a picture of the future.

On this date August the 26th, 2016 the Trump painting which was completed last year in September 2015 so far has painted a remarkable picture of what we are seeing taking place right now. The contents of the painting, the symbols contained all point to Donald Trump as the next President of the United States of America! We will know on November the 8th, 2016.

Please enjoy the rest of the story about the creation of the Trump Painting and how the inspiration of this painting opened up a door to a grassroots political campaign that has taken the artist, New Born citizen and Alternate New York Delegate Julian Raven from coast to coast.”

Painting The Portrait

Abstract expressionism has been one of my techniques in my personal search for the creative language that best expresses and captures the intensity and passion of my heart. The excitement, energy and joy the ‘Drip & Splash’ technique creates within me is exhilarating. But it is limited in its ability to convey detailed information.

When considering how I was going to paint the Trump Portrait I considered my advanced ‘Drip & Splash’ technique. I had painted back in 2014 a 7-­‐foot portrait of Alan Henning, the British cab driver murdered by ISIS in Syria, called ‘The Power Of Kindness’. This laid the groundwork for the Trump Portrait and I was close to painting the massive painting with drips of paint, but the details in my mind seemed to require grater clarity. The Henning portrait was extremely challenging, and very hard to control. So I rightly decided to pick up my brushes again and discover the challenges of using tiny brushes when one is used to throwing gallons of paint around! Ha-­‐ha, it was like asking someone to paddle their canoe in a pond after white water rapids were their ‘thing’!

I did not plan the painting other than I knew that the head would be full size, for me that was nearly 7 feet tall. I did not want the body since it was the face I saw in the photo, it was the expression of determination, and the stare of Trump saying I am going to get it done! I am tough, determined and ready to rescue America! The eagle had to be at least 8 feet; it ended up being 9 feet long approximately.

It was a great challenge for me since I did not know exactly what I was going to paint, I trusted the spirit of inspiration to guide me and it did. I literally followed the impulses in my heart. I had waited to so long to start the painting that when that series of events came, I hade only begun to work on the eagle, creating a snatching screaming bird, there was nothing else. So the morning of the CNN video, I left my home and built the stretcher in my studio and began painting and did not stop until it was done. I could not stop myself. I worked the painting out on the canvas. That is probably why it took me so long because I redid portions of it over and over and over and over again! If x-­‐rayed, the painting would look like a sketchbook!

For nearly 6 weeks I was a different man. I could not interact with my family normally nor attend to household responsibilities. Thank God I have a patient and

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wonderful wife and family! I hardly slept, which caused me to drink unusual amounts of coffee to keep me awake. It was a totally consuming work. I did not see friends, or tell friends what I was doing, not even my mother knew what I was doing! Night and day I worked. It was brutally hot some days. Then, as the painting’s end was in sight, it was autumn and quite chilly. It was an experience that has changed my life forever!

I tried to create a beautiful composition of fantastic lines. Carefully, I created interesting negative spaces and I was very careful not to pack the composition and lose its feeling of space. I wanted the painting’s style to be interesting to children; one that everyone could enjoy -­‐ the artistically informed as well as the average person. This was one of the reasons I did not use the drip technique. My children and my wife were the only people who knew what I was doing for the two months that I ‘fell off the radar’. They were both my sounding board and my encouragement. The painting had to be a bold reflection of Trump in its scale, intensity, drama, energy and bold coloring. It developed into this cosmic global vision as seen from above. Donald Trump’s impact globally already speaks to the earth being used symbolically.

It is dreamlike, even surreal as it speaks of the dream/vision of the fall and rescue of America under President Trump, but it also is a dream since it is set at the waking hour, the time of dreams, as the sun rises in the east. Even though painting is layered in Theistic symbolism, since I am a follower of Jesus Christ, and since I was inspired, I made sure it did not read as a religious painting. That type of imagery can distract and ‘pigeon hole’ the work into a sub category that then limits the amount of people who will enjoy it.

Most of the elements in the painting are telling a story. Even Trump’s hair is a meteoric symbol that actually is not sitting on his head. This speaks to the ‘meteoric’ rise of Trump and his hair being such a feature of his personality. I even deliberately made the roots visible, since at the time there was so much debate as to whether his hair was real; the painting shows it being real! The long stretched flag developed from a simple falling flag to a fluttering, reversed, faded, frayed, torn flag (symbols in the tears.) on the right to a restored and new flag on the left under the wings of the Eagle. The flag is a time continuum or timeline. From its founding where the flag attached to the flag pole ropes that are cut off from the flag pole, the ropes which are symbols to the new stripes, stars and ink being pulled down from above and out and through Trump. The pensive, intense and determined look on Trumps face, and yet the Bald Eagle is screaming, sounding the alarm as if that is the cry of the eagle, the sprit of the land coming through Donald Trump. ‘Make America Great Again’ is a tough phrase to visualize in a simple image. I have made the falling fading flag that is rescued speak to that saying. It is the image of making America Great Again as the flag is restored. Mysteriously, the portrait with all of its intensity, smiles, revealing the ‘big hearted’ man behind the steely eyed stare. This is seen in the original more than in the reproductions.

There is much more to the story and the interpretation of the symbolism, which I hope to share with you if you decide to honor my request to show the painting for the inauguration.

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The painting is in acrylics on stretched canvas. It is beautifully framed in a red, white and blue ornate decorative frame. The final dimensions are nearly 8x16 feet.

It weighs about 250 lbs. It is ready to hang with French cleats and it has its own custom crate.

Grassroots Campaign

The reactions of people who have seen the actual painting have been a pleasure to watch and hear as an artist. Many people have seen the image of the painting and speak positively of it. But it is the experience of the scale of the portrait that evokes massive emotional responses. Some people virtually yell out loud, using expletives when they see it! The ‘OOs’ and ‘Ahhs’ are great when the painting is unveiled. The two most dramatic reactions were as follows. One man paced up and down in front of the painting rubbing his arms, as he exclaimed out loud how he had goose bumps all over his body. One woman, upon seeing the painting stood there silently. It was an awkward silence and a first since most people react out loud. This one woman stood there, stared silently and left. The artist thought she didn’t like the painting.

Later she emailed the artist to apologize and explain how the painting left her speechless. She could not speak….That was a powerful reaction!

From the snowy wilderness of the Iowa Caucuses to the pinnacle of political art shows in LA at Politicon 2016, The Trump Painting has been seen and enjoyed by thousands of people. The Trump Painting 'Unafraid And Unashamed' was seen at the 'Art Of Politics' Art Show along with the 'Hope And Change' painting, by artist Shepherd Fairey to provocative conservative street artist SABO. Here is the invitation from Yosi Sergant, inspiration and publicist of the Obama painting ‘Hope And Change’ by Shepherd Fairey.

“Dear Julian, My name is Yosi Sergant. I am the former White House Arts Liaison and Dir. of Communications at the National Endowment for the Arts. I would love to invite you to participate in a group show I am producing at this years Politicon taking place in Pasadena, CA from June 24-­‐26th (politicon.com). We expect about 5,000 attendees and the speakers/panelists include the likes of Sarah Palin, Anne Coulter, Glen Beck, James Carville, David Axelrod and the cast of the Daily Show… and many more. The show includes artists such as Shepard Fairey, Robbie Conal, Michael D’Antuono, T-­‐Rock Moore, SABO, The Art Wing Conspiracy, Mear One, Illma Gore and a few others. It will be fantastic. We’d love to include Unafraid and Unashamed in the show. I look forward to hearing from you. Kind Regards, Yosi"

The Trump Painting even traveled to Trump Tower in New York City where a copy proudly hangs in the Trump Campaign Headquarters since November 1st, 2015.

Having been elected as an Alternate Delegate from New York, as a newborn American citizen, Julian Raven attended the Republican National Convention in Cleveland, 2016. As part of the New York delegation a copy of the Trump Painting was on display at the Cleveland Renaissance Hotel. It served as the backdrop for countless photos with many of the distinguished guests at the New York Delegation.

Present at the New York delegation were former Speaker New Gingrich, Rudy

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Giuliani, Congressman Collins, Congressman Reed, GOP Chairman Ed Cox, Chemung County Chair Rodney Strange, Yates County Chairwoman Sandy King, Schuyler County Chair Lester Cady and many more. Julian Raven also boldly and proudly displayed a copy of The Trump Painting in the Public Square in the center of the anti Trump protests at the convention. The painting powerfully transcended the heated opposition to Trump, creating positive dialogue with Bernie Sander’s supporters and Black Lives Matter protesters who showed great respect for the painting even though they opposed Trump. It was common to hear, “I hate Trump, but I love the painting…” This was mission accomplished for the arts, as the painting was a tool for generating positive interaction. Even at the artist’s studio where at 25 foot vinyl version of the painting hangs it has been a tool for positive conversation. From a multitude of initial threats, the hostility was diffused and minds were changed concerning Trump. 6 months later the banner still hangs in a Democrat neighborhood proving the power of art to be an instrument of creative dialogue.

Yosi Sergant, inspiration, patron and publicist of the Shepherd Fairey presidential poster even said about the Trump Painting And Portrait, that is was ‘visionary, positive and a hope filled work of art, even though being a self proclaimed ‘hard core leftist’ and not a fan of Donald Trump.

The image of the Trump painting was also featured in the viral video (5 million Views) ‘The Trump Family I know’ produced by Trump Executive, Lynne Patton. It was also shown on screen during the Cleveland RNC convention. Julian Raven received acknowledgement and praise from politicians, the media and friends who saw the image at the RNC or on their television screens across the county, for that great achievement! The image of the Trump portrait/painting was to become the only work of art included in the RNC convention. By this inclusion at the RNC, the image of the painting became a part of American political history, another step in this remarkable ‘art history’ story.

Please see video: https://www.c-­‐span.org/video/?c4612500/trump-­‐family-­‐know-­‐ video (Also see the massive media coverage at www.thetrumppainting.com

Following the RNC in Cleveland, the Trump painting has been a continual fixture in Grassroots rallies in Elmira, New York. It also was part of RNC annual dinners, with high-­‐ranking New York Republican sitting politicians being present; New York Senator Tom O’Mara, Chemung County Chairman Rodney Strange, Elmira Mayor Daniel Mandell, , Schuyler County Chairman Lester Cady, Yates County Chairwoman Sandy King, Assemblyman Friend, Assemblyman Palmesano and many other distinguished members of the Republican Party. Julian Raven would speak and explain some of the symbolism in the painting and receive standing ovations as a result!

Now the next stage of this historic journey is upon us. The prophecy is fulfilled, Donald J. Trump will become the next President of the United States on January the 20th, 2017. Will the Smithsonian National Portrait Gallery be part of this story?

That decision rests upon you.

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Attached are some of the official letters from elected representatives and important individuals who represent over 200,000 New York citizens and have spoken on their behalf by supporting the effort to have the Trump portrait and painting on show as a tribute and for the inauguration of the next President of the United States.

Obviously this work of art is a massive Trump supporter magnet. It will guarantee some of President Elect Trump’s 60 million supporters will have a place to visit to see the historic work of art!

Sincerely appreciative of your time,

Julian Raven

MEDIA: Some of the many stories. Please visit the Trump Painting website to see all of the images and media stories.

Powerful Signs in the making of the ‘Unafraid And Unashamed’ https://www.youtube.com/watch?v=3MaAK31nDxU The Making of The Trump Painting/Portrait ‘Unafraid And Unashamed’ https://www.youtube.com/watch?v=H9xO_Fe3FOA November 1st, 2015 the beginning of the fine art grassroots campaign for Donald trump by Artist Julian Raven http://www.twcnews.com/nys/binghamton/news/2015/11/1/local-­‐artist-­‐unveils-­‐ patriotic-­‐painting-­‐inspired-­‐by-­‐donald-­‐trump.html Unwavering support, Mayor Mandell Recommendation http://www.mytwintiers.com/news/local-­‐news/unafraid-­‐and-­‐unashamed-­‐meet-­‐ the-­‐man-­‐behind-­‐the-­‐trump-­‐painting Beyond Rage And Anger To America, Vision Of Hope https://www.youtube.com/watch?v=LB3h7TNboJM Washington Free Beacon-­‐ Culture-­‐ Loyal Supporters. http://freebeacon.com/culture/immigrant-­‐christian-­‐abstract-­‐expressionists-­‐for-­‐ trump/

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New York Times: Art Section: http://www.nytimes.com/2016/07/20/us/politics/california-­‐staff-­‐workers-­‐ illness-­‐republican-­‐convention.html The only Pro-­‐Trump painting to be included in the anti-­‐Trump Huffington Post’s Art gallery ‘If This Art Could Vote’: http://ifthisartcouldvote.huffingtonpost.com/

Please see more at: www.thetrumppainting.com www.julianraven.com www.facebook.com/julianravenUSA www.twitter.com/julianmraven www.wordpress.com/julianraven

CC: Senator O’Mara, New York CC: Congressmen Reed and Collins, New York CC: Mayor Mandell, Elmira, New York CC: Assemblymen Friend and Palmesano, New York CC: Chairmen/Chairwomen Cox, Strange, Cady, King and Sempolinski, New York CC: Chemung County Legislators, Kenneth J. Miller and Joe Brennan CC: Frank Acomb, Frankly Speaking Radio CC: Brad Davis & Andrea Gates, Art Collectors CC: Lynne Patton, Trump Org.

Letters of recommendation attached. Some are still in production and will be forwarded when they arrive or I am still waiting on the original signed version.

The Trump Painting/Portrait ‘Unafraid And Unashamed’ by Julian Raven

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CHAIRMAN ENVIRONMENTAL CONSERVATION COMMITTEES AGRICULTURE BANKS CODES ENERGY AND TELECOMMUNICATIONS FINANCE INSURANCE INVESTIGATIONS& GOVERNMENT OPERATIONS IUDICIARY TRANSPORTATION

THE SENATE STATE OF NEW YORK

ROOM 307 LEGISLATIVE OFFICE BUILDING ALBANY. NEWYORK 12247 518) 455-2091 FAX. 1518) 426-6976

IA

333 E WATER STREET, SUITE 301 ELMIRA. NEW YORK 14901 (607) 735-9671 FAX. (6071 735-9675 E-MAIL onrnrunysena1e gov

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THOMAS F. O’MARA SENATOR 58TH DISTRICT

November 1 6. 201 6

Mr. .ltilian Raven

2524 (‘0. Rt. 60 I tlinira. New ‘ork 14002 Dear N’lr. Raven: I hank you br tiNs opportunity to express my strong support br your &iplicaition to the Smithsonian National Portrait Gallery to have your portrLlt of President—elect Donald trump.

-i naIl-aid and nashallied. displayed at the (jul lery in eonjllnction ith the President—elect’s Inauguration in January.

As your representative in the New York State Senate. I believe that your incredible work would be an appropriate and impactiul addition to the National Portrait Gallery’ during this time, and a truly’ patriotic tribute to our new President.

I sincerely hope that the selection committee will give your work every consideration and if I can be ol an l’urther assistance or provide any additional thoughts. please don’t hesitate to contact me. It would he my pleasure to do so.

Sincerely.

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I homas F. (1 Mara N VS Senator. 5wl District

THE NEW YORK REPUBLICAN STATE COMMITTEE ED COX, CHAIRMAN November 28, 2016 Dear Mr. Raven, Thank you for the opportunity to express my strong support for your application to the Smithsonian National Portrait Gallery for your portrait of President-elect Donald J. Trump to be displayed at the gallery in conjunction with the January 20th inauguration.

We were proud to have this piece prominently displayed at the New York delegation hotel during the 2016 Republican National Convention. Our status as the home state committee of the Republican nominee attracted several top national figures who had the opportunity to view this striking and memorable piece of political art.

It has already been enjoyed and remarked upon by many, but its display at the inauguration by a New York artist would be an appropriate commendation for our President-elect. This honor would have a special significance given your position as an alternate delegate for Mr. Trump’s campaign at this year’s convention, and as a loyal member of the Republican Party.

Please allow this communication to serve as my enthusiastic support for this endeavor. If anyone on the selection committee would like to speak to me further, please feel free to have them reach out to my office.

We wish you the best of luck in this pursuit and look forward to seeing your piece again in Washington D.C. this January.

Sincerely,

Edward F. Cox Chairman

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Schuyler County Republican Committee Lester W. Cady 1268 Crans Rd Millport, NY 14864 607-481-1207 November 18, 2016 Julian Raven 2524 County Route 60 Elmira, NY 14902

Dear Mr. Raven,

Thank you for this opportunity to express my strong support for your application to the Smithsonian National Portrait Gallery to have your portrait of President-­‐elect Donald Trump “Unafraid and Unashamed”, displayed at the Gallery in conjunction with the President-­‐elect’s Inauguration in January.

As part of the Schuyler and State Republican Committee, my wife Cindy and I believe that your incredible work would be an appropriate and impactful addition to the National Portrait Gallery during this time and a truly patriotic tribute to our new President.

It was a pleasure to get to know you and your work in Cleveland at the GOP National Convention, along with your generous display and time you gave to our Committee Fall Dinner event.

I sincerely hope that the selection committee will give your work every consideration and if we can be of any further assistance or provide any additional thoughts, please don’t hesitate to contact us. It would be our pleasure to do so.

Sincerely,

Lester W. Cady, Schuyler County Republican Chairman

Joseph Sempolinski Chairman, Steuben County Republican Committee

Mr. Julian Raven 2524 Co. Rt. 60 Elmira, NY 14902 Dear Mr. Raven, I write in regards to your application to the Smithsonian National Portrait Gallery to have your painting “Unafraid and Unashamed” displayed at the celebration for President-Elect Donald Trump’s inauguration.

I hope that your application is received positively by the Gallery. I admire the passion and patriotism that you have displayed through your artwork and I hope that you will be able to share that art with the whole nation through this opportunity.

I know that as a newly minted citizen this election has been of particular importance to you personally and I hope that your application is successful.

Sincerely,

Joseph Sempolinski Chairman, Steuben County Republican Committee

Julian Marcus Raven 2524 County Route 60 Elmira, New York 14901 December 7th 2016 SMITHSONIAN NATIONAL PORTRAIT GALLERY PORTRAIT DECISION APPEAL Office of the Regents Smithsonian Institution 1000 Jefferson Drive SW #113 Washington, D.C. 20560 To The Board Of Regents Of The Smithsonian Institution CC: Chief Justice John G. Roberts, Jr.; CC: Vice President Elect Mike Pence; CC: Vice President Joseph R. Biden, Jr.; CC: Senator John Boozman; CC: Senator Patrick J. Leahy; CC: Senator David Perdue; CC: Representative Xavier Becerra; CC: Representative Tom Cole; CC: Representative Sam Johnson; CC: Barbara M. Barrett CC: Steve Case; CC: John Fahey; CC: Shirley Ann Jackson; CC: Robert P. Kogod CC: Risa J. Lavizzo-Mourey; CC: Michael M. Lynton; CC: John W. McCarter, Jr. CC: David M. Rubenstein Porter N. Wilkinson, CC: Chief Of Staff To The Regents, Rachel Parker, CC: Deputy Chief of Staff to the Regents CC: Smithsonian Legal Counsel Department P.O. Box 37012, Washington, DC 20013-7012 CC: Director Kim Sajet Smithsonian National Portrait Gallery Your Eminent Members Of The Board Of Regents Of The Smithsonian Institution, My name is Julian Raven, artist and painter of the Trump Portrait ‘Unafraid And Unashamed’.

It is with the most pressing urgency that I am writing you due to the fast approaching inauguration of President Elect Donald J. Trump on January 20th, 2017. The reason for the urgency is my intention of showing my painting as a historic tribute to Mr. Trump’s unprecedented election campaign at the National Portrait Gallery.

Due to the purpose of the National Portrait Gallery to be a pictorial record of individuals who have “…made significant contributions to the history, development, and culture of the people of the United States, and of the artists who created such portraiture and statuary." i It is without question that an artistic, pictorial record must be made at the National Portrait Gallery that embodies, captures and expresses this most remarkable presidential election campaign because of its unquestionable contribution to our remarkable American history!

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There will be many portraits painted of President Elect Trump, there are many portraits of Mr. Donald Trump as a private citizen from before the campaign, but there is only one positive proTrump portrait/painting of note and recognition. The painting was created by a private citizen of these United States, back in the summer/fall of 2015. It embodies the candidate, vision, passions, desires, hopes, symbols, patriotism, faith and will of the American people by graphically and prophetically depicting Mr. Donald J. Trump as the man who would become the 45th President of the United States in a dramatic composition whose narrative embodies our most cherished and sacred aspirations as Americans.

This historic creative journey began back on July the 9th 2015, when most people considered Mr. Trump’s candidacy to be a joke! The details of the journey are attached as part of the application that I sent to the Director of The National Portrait Gallery, Kim Sajet. Due to the unfortunate response to my application from Director Sajet I have written this appeal at her prompting, since Director Sajet’s final words to me were, ‘Your application will go no further, I am the director and you can appeal it all you want.’

This very surprising and disturbing personal phone call from Director Sajet took place on December the 1st, 2016 at 11:34 A.M. and it lasted for 11 minutes.ii Without any cordial, polite, official, formal, educated, substantive or even procedurally accurate written decision or response from the Director of the National Portrait Gallery to my 20 plus page application that was forwarded to her by the Director Of The Affiliations Department Harold Closter, my application was rejected! The application included official letters of recommendation from New York elected representatives of over 200,000 citizens; Congressman Tom Reed, Senator Tom O’Mara, GOP chairs, Elmira Mayor Mandell, Councilwoman Moss and others including radio host Frank Acomb and Art Collectors Davis/Gates. Director Sajet embarked on an undocumentediii, unofficial, biased and personally opinionated rejection of my painting.

One would think that the very standards for acceptance of portraits established by Congress in 1963 would be at the forefront of Director Sajet’s objections? It would also seem appropriate that a work of art such as mine be examined in person due to its scale. The director’s first objection was about the painting’s size! My protestations at the arbitrariness of her objection produced an eventual backtracking and apology from the director! Nowhere in the established standards by Congress for acceptance for a painting was scale ever mentioned! But due to the personally biased opinion that was rendered by Director Sajet, scale was her first mistake!

The size, nearly 7x15 foot painting (7” x 8’ x 16’ and nearly 300lbs in weight in its beautiful decorative red, white and blue frame) is part of the Trump narrative in the portrait, which obviously Director Sajet cared little for! As an artist who paints huge paintings in my 6000 square foot studio in upstate New York and who has always enjoyed Donald Trump’s propensity for doing things ‘YUGE!’, our personalities coincided! ‘YUGE’ was to become part of the historic campaign and part of many of Mr. Trump’s comments. He became the master of ‘YUGE’, his lifestyle, his architectural exploits, his plane and ultimately his campaign can be described as ‘YUGE!’. Thus a portrait/painting that appropriately expresses Mr. Trump’s personality would by nature be ‘YUGE’!

Since the experience of seeing the huge (105 sq. ft. surface area.) painting in person cannot in any way be appreciated through highly reduced and compressed digital images of only a few square inches on an iPhone or comparatively small computer screens, an informed, honest and objective decision should be made after seeing the painting in person, one would think?

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The many, many, incredible personal responses to the painting testify to this reality. As the artist, I have had the privilege to watch this happen across the country from NY to LA and throughout the 2015-2016 election campaign. I have been moved by the way in which the painting produced so many powerful and positive emotional responses. Even by those who did not like Mr. Trump, obviously not all of them, but I received so many positive compliments even from Bernie Sander’s supporters, Black Lives Matter protesters, democrats and independents. To note the respect the painting has commanded I share this other story. Over the past 7 months a 12x25 foot vinyl copy of the painting has hung on the front of my art studio, which is located in a low income, highly democratic area. And although the banner and I were initially threatened, 7 months later the banner remains intact!

Art has the power to transcend the typical political discourse, producing positive dialogue and understanding. The positive, visionary hope filled image of the portrait inspires people, commands respect and educates since it is layered with symbolic imagery that tell our American story! Our Nation is in need of healing and restoration. My painting is a tool that has accomplished that, in the many conversations I have had and to the degree that it has been seen across this country. The painting’s destiny to continue this work now rests in your hands.

With this appeal, I am requesting that the Board Of Regents issue an immediate ‘stay of judgment’ in the hasty and biased rejection of my application by Director Sajet. I hereby petition that your Eminencies give an honest and thoughtful consideration to the remarkable and historic story that accompanies the painting. That non-biased and artistic opinions be given to the dramatic nature of the manner of inspiration and spiritual depth through which I was inspired to paint the painting. Also the nearly 600 hours of at times agonizing artistic struggle in the execution of the painting be included in the consideration. Consideration must be given to the resulting effect and the life transforming power upon my personal life as an artist, patriot, political activist and newborn citizen of my new home, the United States of America. I request that consideration be given to the totally unique nature of the painting, since it is not a stylistic reproduction of any other portrait or artistic period. It is unique, and I can testify to that, having been to all of the major museums in England, France, Holland, Spain and New York and personally seen a great number of the worlds most acclaimed artworks, as well as having studied the history of art. I request that thoughtful and respectful consideration be given to the letters of support by elected representatives and others who have personally witnessed this story in one degree or another. Also, that the historic journey and the way the image of the painting was woven into the fabric of this historic presidential campaign be weighed in this process.iv Finally, that based upon the standards for acceptance for portraits to be accepted into the National Portrait Gallery and because the Congress of The United States has decreed; “…the standards for accepting portraits varied considerably from other galleries. Even today, in every instance, the historical significance of the subject is judged before the artistic merit of the portrait, or the prominence of the artist.”v, that this standard be applied to my painting.

Since personal bias can affect one’s judgment, if the predetermined Congressional standards are ignored in these matters of historic artistic determination, we must remember that this process was established for the sole purpose of securing a historical and pictorial archive of our American story for this or any other particular time in our history. And if yourselves or any other individual can find a portrait that better represents, captures and embodies the dramatic election campaign of now President Elect Donald J. Trump then by all means I will accept the

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determination of the Board Of Regents in that selection. Most Eminent members of the Board Of Regents, you have been entrusted as civil servants with a grave, honorable and patriotic duty to most accurately and truthfully tell our story to our children and to our children’s children!

Please do not hesitate to contact me with any questions. And please consider this appeal also as an open invitation to my art studio in Elmira, New York to personally experience the Trump Portrait and Painting ‘Unafraid And Unashamed’ to assist in making your final decision Please be considerate of the fact that January 20th, 2017 is fast approaching and it would be most fitting to pictorially and artistically celebrate and coincide with this historic inauguration of the 45th president Of The United States, President Elect Donald J. Trump, by having my portrait on display in the National Portrait Gallery. The National Portrait Gallery established precedent for this type of tribute and event on January the 17th, 2009 when the grassroots produced Obama ‘Hope’ poster by Yosi Sergant and artist Shepherd Fairey was displayed just in time for then President Elect Barack Obama’s historic election campaign!

Yours sincerely, Julian Raven

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PLEASE FIND ATTACHED: Smithsonian Application Letters Of Recommendation The Press Release The Radio Interview Link Various emails

FOOTNOTES:

i http://siarchives.si.edu/history/national-­‐portrait-­‐gallery

ii

iii Personally I would tend to believe that the phone call record exists somewhere in

the NSA or some other data and intelligence recording facility! iv www.thetrumpportrait.com v http://siarchives.si.edu/history/national-­‐portrait-­‐gallery

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Smithsonian Institution Dr. Richard Kurin Acting Provost/Under Secretary for Museums & Research

December 9, 2016 Mr. Julian Marcus Raven 2524 County Route 60 Elmira NY 14901 Dear Mr. Raven: We appreciate receiving your letter of December 7 to the Smithsonian’s Board of Regents, regarding your proposal to exhibit your portrait of President-elect Trump at the National Portrait Gallery. The Board has referred your letter to me for a response.

Consistent with recent tradition, the Gallery has long planned to hang a portrait of the President-elect before his Inauguration. A portrait of Mr. Trump from the National Portrait Gallery’s collection will be on display at the Gallery beginning January 13, 2017.

The decision about whether to acquire or display a work of art at the National Portrait Gallery rests in the first instance with that museum’s director, curators and historians. I have spoken with Kim Sajet, director of the National Portrait Gallery, and concur with her decision to decline your offer and continue with the museum’s plan to display a portrait of Mr. Trump from our collections.

Thank you for your interest in the Smithsonian and the National Portrait Gallery.

Sincerely,

Smithsonian Castle on the National Mall 1000 Jefferson Drive, SW, Art Room 219 MRC 040 PO Box 37012 Washington DC 20013-7012 (202) 633-5240 Telephone (202) 357-7031 Fax kurin@si.edu Email

Julian Marcus Raven 2524 County Route 60 Elmira, New York, 14901 December 11th, 2016 607-215-8711

Dr. Richard Kurin, Acting Provost and Under Secretary For Museums & Research Smithsonian Castle on the National Mall 1000 Jefferson Drive, SW, Art Room 219 MRC 040 PO Box 37012 Washington D.C. 20013-7012 (202) 633-5240 (202) 357-7031 Fax Kurin@si.edu

Dear Dr. Kurin, I did receive your letter emailed to me late on Friday the 9th of December 2016 in the afternoon. Below you will find my response. Please find your comments in red, mine are in black.

“We appreciate receiving your letter of December 7 to the Smithsonian’s Board of Regents,” It was not just a letter, but a letter of “Appeal” consisting of over 20 pages in length and in response to the arbitrary, biased and procedurally illegal objections to my painting by Director Kim Sajet, which are clearly laid out in the appeal and Press Release. My primary email version was sent to the Chief Of Staff Wilkinson with the request that it be forwarded to each member of the board.

Is this email of yours a response from each member of the board? Are you speaking in the capacity as an appointed member by Congress to express such a sweeping opinion? Or was my request to forward the ‘Letter of Appeal’ ignored and given to you for a response? It seems strange to me that again in such a short amount of time, by someone not addressed in the email and in such a short and vague manner my formal appeal was not attended to by the right persons, since addressing any of the information directly in the appeal was not included in your letter! For your information, hard copies are on their way to each member of the Board of Regents so that they can attend to this matter as they were appointed. All of this has come about because Director Kim Sajet failed to give due consideration and due process to my application to the National Portrait Gallery as documented. “…regarding your proposal to exhibit your portrait of President-elect Trump at the National Portrait Gallery. The Board has referred your letter to me for a response.”

This reply is another hasty attempt to continue to deny me my rights as a member of the American Citizenry to a fair hearing and redress in the matter of my grievances that has been presented before each esteemed member of The Board Of Regents. It is another insult both to the founder of the Smithsonian Mr. James Smithson whose dying wish, was that an institution bearing his name be established for the ‘increase and diffusion of knowledge.’ and to the clearly stated standards of consideration established by congress in 1963. Nearly at every step of this application process so far, has been met with a disposition that shows complete and utter disregard, indifference and a willful dereliction of duty regarding the expressed Will Of The People, in this case expressed by the official support of my application to the Smithsonian National Portrait Gallery by elected New York representatives of over 200,000 people! There seems to be a continual effort to refuse my application before it has been evaluated by the Congress established ‘process’ that should be guided by established principles that should be honored and followed! It behooves me that this ‘process’ is continually alluded to and at the same time the ‘process’ is continually ignored?

“Consistent with recent tradition, the Gallery has long planned to hang a portrait of the President-elect before his Inauguration.”

It has only been just over a month since Mr. Trump became President Elect, and you say the National Portrait Gallery has “long planned”; please supply me with documentation to that effect at your earliest convenience. With the dramatic win by Mr. Trump, one would have thought that this ‘long planned’ event would have been made public as soon as it was planned as obviously it indicates that the Smithsonian is excited about this historic event and its ability to ‘Increase and diffuse knowledge.’

Why would a “long planned” event involving showing an irrelevant and dated photo of Donald Trump justify completely ignoring a work of art that specifically deals with the election, like the Obama poster did? Why is it only now that the Smithsonian is announcing this after my application highlighted the NPG established precedent by showing the Obama poster on January 17th, 2009? Also, since the subsequent rejection of my historic portrait has come to light in the media, why since it was ‘long planned’ was it not mentioned before my application on the 1st Of December 2016? Ah yes, I get it, it must have been a great secret because of the surprise and suspense surrounding such an exciting ‘long planned’ event, since such a monumental and inspiring work of art, an old, 1989 photo of Donald Trump, to quote the Smithsonian press release, “tossing an apple in the air with his right hand” was going to go on show!

Why would this ‘recent tradition’ be so prohibitive and rigid to even considering another portrait of Donald Trump that happens to be something that reflects the recent dramatic election rather than a photo from 1989, which is anything but relevant to the election? It is akin to you showing a photo of Donald Trump as a baby to commemorate this historic and unprecedented Presidential win that is pregnant with the massive potential increase and diffusion of pictorial knowledge! Since I imagine the ‘recent tradition’ alludes to the January 17th, 2009 showing of the election campaign Obama poster, why would not that same tradition demand a politically relevant work of art be shown like the Obama poster was? Why would the Smithsonian which ‘owns’ 8 Obama portraits, according to Director Sajet, be so closed to the idea of showing or even acquiring another Trump Portrait, thus increasing and diffusing pictorial knowledge? And why would it be so terrible to have 2 or more portraits on show at the same time for the inauguration for this most historic event? Why not show them all and include this undeniably prophetic, patriotic, symbolic and now historic portrait of now President Elect Donald J. Trump?

“A portrait of Mr. Trump from the National Portrait Gallery’s collection will be on display at the Gallery beginning January 13, 2017.”

So the Smithsonian NPG received and showed, whether by gift or by acquisition, a poster/portrait of then President Elect Obama back in 2009 before the inauguration of then another historic Presidential election and displayed such to commemorate and celebrate the massive increase and diffusion of pictorial knowledge, correct? And regardless of the questionable story behind the creation of the poster, one cannot deny its historicity and relevance to the Obama campaign and so rightly it should have been shown. It would have denied the art world a voice in sharing in that historic moment that so many millions of Americans celebrated.

When it comes to my application to show an equally relevant and historic presidential campaign work of art, mine is denied. I an not offering my work as a gift or requiring that you purchase or even consider my work for purchase, it is simply to show the work for the inauguration. My painting may not have received the same degree of exposure that the Obama poster did and there are reasons for that. The same resistance to showing my work of art at the Smithsonian was experienced since the first day it was unveiled back on November 1st, 2015. The hostility and hatred in Academia, Hollywood, The Media and especially the Art World towards Mr. Trump is more than well documented and that attitude was also directed at my painting!

But regardless of the ‘degree’ of recognition, there is no doubt to the objective and honest mind that the sole, relevant and recognized pro-Trump work of art, portrait and painting from the historic Trump campaign was my painting ‘Unafraid And Unashamed’!

“The decision about whether to acquire or display a work of art at the National Portrait Gallery rests in the first instance with that museum’s director, curators and historians. I have spoken with Kim Sajet, director of the National Portrait Gallery, and concur with her decision to decline your offer and continue with the

museum’s plan to display a portrait of Mr. Trump from our collections. Thank you for your interest in the Smithsonian and the National Portrait Gallery, sincerely Richard Kurin.”

Mr. Kurin, again without giving a substantive educated critique, with no historical commentary, no election relevance or significance, no consideration as to the “increase in knowledge’ that would come, no consideration of the Museum’s standards for acquiring/showing a portrait, you concur with Director Sajet in her unfounded and illegal objections to my application. If you were just a private gallery, you could be so arbitrary, but the Smithsonian National Portrait Gallery belongs to ‘We The People’ and so you ultimately work for us. And so it will be determined by the appointed representatives/members of the Board Of Regents who also work for ‘We The People’ of the United States of America to serve our interests in the creation of our pictorial historical narrative for us and for our children’s children to enjoy.

“There is a process we go through when we acquire a work of art and it has to be decided by the museum’s curators and director, so it’s a process, and we really don’t need to go through such a process since we already have our own.” Linda St. Thomas http://www.mytwintiers.com/news/local-­‐news/smithsonian-­‐institution-­‐rejects-­‐elmira-­‐artists-­‐ trump-­‐painting/617527260

Here the Smithsonian has taken another approach in its reasoning for the objection to my painting.

Here the ‘process’ again is mentioned as binding and yet in my case it is ignored since the consensus seems to be that the Smithsonian has enough art relating to Donald Trump. Amazingly the Smithsonian spokeswoman said you ‘really don’t need to go through such a process because you already have enough art of your own?’ Where is the ‘increase and diffusion of knowledge’ in such a statement? The application ‘process’ is voided, ignored and bypassed because you have enough pictorial knowledge of Donald Trump from 20 years ago? This statement would indicate that the Smithsonian National Portrait Gallery only needs a few old paintings or photos of any subject and that is enough! Rejecting the idea that an INCREASE of new art, new photos, new portraits, new PICTORIAL KNOWLEDGE of historic figures and historic events are relevant and necessary to accurately tell our American story. It is like digging up an old photo of the Twin Towers from when they were built and showing that image alone to describe the horrors of the 911 terror attacks and of their destruction, willfully ignoring and censoring any image, this any pictorial knowledge that actually shows the attack, subsequent destruction, the chaos that ensued, the reconstruction and then ongoing yearly memorialization! My goodness, what type of an institution has the Smithsonian become?

So now art submitted by the People to the Smithsonian Institution, the museum that belongs to the People for consideration for becoming part of the pictorial historical narrative of the American People during this historic election of Donald J. Trump is refused because you already have enough images? Amazing, with the spokeswoman’s comments the Smithsonian is now even barred from acquiring any more Trump related artwork since it has officially stated that it has enough! Wow, in Trump’s case 4 portraits are enough but in Obama’s case 8 portraits! But then again, precedent by acquisition would indicate that at least 8 Trump portraits would need to be acquired to be fair to the presidential collection?

It is clear to me that Director Sajet’s original series of personal and unfounded objections, bypassed the requirement to have the consideration pass through the ‘process’. So in effect you and Director Sajet have agreed, that my painting is not even worthy of qualifying for the ‘process’, since neither of you have demonstrated in any way how my painting does not meet the standards for consideration and acquisition established by Congress. It has been refused regardless of the established criteria for such a refusal! I would accept such an arbitrary refusal from a private institution where there is no recourse or process of appeal. Where on a whim somebody because of personal taste, prejudice or utter dislike can refuse a work without the slightest consideration. But since the Smithsonian Institution belongs to the people of the United States, every consideration will be given to every possible avenue of application and appeal to ensure that every respect and every detail of due process is afforded me as determined by the laws that govern the United Stated Of America and its institutions.

“A portrait of Mr. Trump from the National Portrait Gallery’s collection will be on display at the Gallery beginning January 13, 2017.”

By failing to even consider my application, by failing to show my historic work of Art, which is directly related to the election of Donald J. Trump, the Smithsonian has in effect barred any relevant commemorative expression in the arts from taking place and has abdicated its responsibility to be an institution established for the ‘Increase And Diffusion of knowledge’. The Smithsonian rather seems to have become an irrelevant and dated museum, using dated material or old pictorial knowledge, where the increase and diffusion of knowledge has ceased, one of the Achilles heels of institutions built on archival knowledge.

Some of the 60 plus million people who voted for Donald Trump, who will travel to D.C. for the inauguration and there after will have a 20 year old photo graph of Donald J. Trump “… tossing an apple up with his right hand.” to see at the Smithsonian! Wow! How intellectually stimulating, how enlightening and O my, how exciting!

Mr. Kurin, in all honesty how many people do you think are going to go out of their way to see an old, dated and uninspiring photo of Donald Trump throwing an apple in the air? Just on a purely business level this decision seems to want to fail or keep people away!

Sincerely,

Julian Raven

Establishment of the Smithsonian National Portrait Gallery (Doc. A)

DOC B

Smithsonian Act of Congress 1846 (Doc. C)

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DOC F.

IRC Report to the Smithsonian Doc G

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