The American Civil Liberties Union of Colorado has sued the town of Vail on behalf of a Native American artist, claiming it violated her First Amendment rights when it abruptly canceled an artist residency she had been offered after she posted to social media a painting about her views on the war in Gaza.
The painting depicted a woman wearing a Palestinian kaffiyeh and a feather, and it was entitled “G is for Genocide.” In March, the artist, Danielle SeeWalker, shared a photo of it on Instagram with the caption, “Some days, I have overwhelming grief + guilt for walking around privileged while people in Gaza are suffering for no reason.”
Two month later, town officials told SeeWalker, 41, that her residency through Vail’s Art in Public Places program, which was scheduled to last 10 days in June while she completed a mural in the town, had been terminated because the painting had angered some in the local Jewish community, according to the lawsuit filed in federal court last week.
The fallout from SeeWalker’s painting is the latest in a string of incidents involving criticism of Israel that have roiled the art world, raising questions over freedom of speech among artists, writers, museum employees, actors and others who oppose Israel’s conduct of the war in Gaza.
The war started with Hamas’s attack on Israel on Oct. 7, 2023, which killed 1,200 people. Since then, Israeli military operations have killed more than 42,000 people in Gaza, many of them women and children, local health authorities say. Israel vehemently denies that its military has targeted civilians and claims Hamas fighters purposely hide among noncombatants.
A spokeswoman for Vail, a town more than 90 miles west of Denver best known for its ski resorts, declined to comment about the lawsuit on Tuesday.
In May, the town issued a statement saying the decision to cancel SeeWalker’s artist residency was made after concerns arose around the potential politicizing of the public art program. The town said the program’s “mission is to create a diverse and meaningful public art experience in Vail, but to not use public funds to support any position on a polarizing geopolitical issue.”
According to the lawsuit, the decision to revoke the residency came shortly after complaints from Rabbi Joel Newman, of the B’nai Vail Congregation in Vail. In early May, Rabbi Newman sent emails to several town officials complaining that SeeWalker had proudly displayed work “claiming that Israel is committing genocide,” an accusation he called “abhorrent to the Jewish world.”
Within hours of those emails, Molly Eppard, the coordinator for residency program, told SeeWalker in a text exchange that the “Jewish congregation is very upset” about her “G is for Genocide” painting, according to the lawsuit. Two days later, on May 9, the town’s deputy manager informed SeeWalker in a telephone call that her residency had been canceled because of the painting.
Rabbi Newman declined to comment on Tuesday.
SeeWalker, a Denver-based artist and a citizen of the Standing Rock Sioux Tribe in North Dakota, said in an email that the painting was intended to draw parallels between the history of Native Americans and the current crisis facing the people of Gaza. She said the work had nothing to do with the mural she had planned to do in Vail.
SeeWalker said she was disheartened by the cancellation of the residency, adding that Indigenous voices have been censored for generations. “It has to stop,” she said. “Vail and other local governments need to know they can’t deny our constitutional rights in this way.”
“The cancellation itself left a hole in my schedule,” she added, “and I did turn down other projects because I was committed to the Vail residency.”
Laura Moraff, a staff attorney for the A.C.L.U. of Colorado, said in a statement that the U.S. and state constitutions “do not permit this type of invidious viewpoint-based discrimination, and we will fight to ensure Coloradans can express their views free from government retaliation.”
The A.C.L.U. said in a statement last week that while Vail was not constitutionally required to establish an artist in residency program, once it did so, the town was not permitted to require an artist’s assent to any particular view on the Israel-Hamas War.
David Pozen, an expert on constitutional law at Columbia Law School, said in an interview on Tuesday that the lawsuit appeared to present a strong case.
“The courts have allowed the government to limit the speech of people the government funds, but any such limitations on people’s free speech rights are supposed to be tied to the purpose of the government program,” he said.
Pozen said that the reason SeeWalker lost the residency appeared to be unconnected to the purpose of the program. “That seems me like the biggest vulnerability for the city,” he said.
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