The U. S. Supreme Court has refused to hear a case filed on behalf of artist David Avalos over a judge's 1986 removal of a temporary sculpture from the Federal Courthouse plaza here.
"It just shows how much more work has to be done to get at a climate in which free expression is encouraged," Avalos said Tuesday, a day after the court's decision. "Technically, the law has been carried out, but justice has not been served."
Avalos, an artist of national repute, spoke as he was about to leave for New York, where he has a solo art exhibit opening next week. He said the Supreme Court's refusal means he has more work to do.
"All the way up and down the line, federal court judges made it their business that another federal judge, Gordon Thompson Jr., escaped the scrutiny of the legal system," said Avalos, who lives in National City. "It's hard for justice to get up on her own scales and weigh the system. At what point do those people who make decisions . . . cease to be accountable?"
Avalos was represented by Gregory Marshall, who filed the suit in Thompson's court in 1986 as an attorney for the American Civil Liberties Union. Thompson was the primary defendant.
"I was disappointed because we did not get a hearing on the case," Marshall said. "The essential issues of the case were never heard. David really was deprived of a true day in court."
Avalos' wooden construction, titled "San Diego Donkey Cart," depicted an immigration official arresting an undocumented worker.
Although the General Services Administration had issued a permit for the display, Thompson, a chief U. S. District Court judge, ordered it removed, saying it was a security risk and "an invitation for a kook to do some harm to it or the building." Avalos claimed censorship, saying his First Amendment rights to free speech were violated.
The trial court ruled that the GSA had erred in revoking the permit, but the key issue was whether Thompson had a right to order the GSA to revoke the permit, and that has never been heard, Marshall said.
The U. S. 4th Circuit Court of Appeals dismissed the appeal, saying the case was moot, "that we got all the relief we were entitled to," Marshall said. "They never stated a legitimate reason, which is highly irregular."
Marshall called Monday's denial "the same as the court holding that Judge Thompson is free to do that at any time."
Avalos took his case to the Supreme Court for "real solid reasons."
"It's not something I came up with overnight," Avalos said. "It's something I've been doing as a Chicano for two decades. It connects me to the history of the United States. It has to do with the exercise of rights.
"It's one thing to say I have First Amendment rights. It's another thing to wear a T-shirt that says 'Ed Meese is a pig.' One is the profession of rights, and one is the exercise of rights.
"Sometimes it may appear frivolous. A donkey cart may look frivolous, but I think the principles aren't frivolous."
Avalos is an outspoken artist with substantial credentials as an advocate for Chicano causes. In January, 1988, he was one of three artists who produced a controversial poster critical of the way San Diego's tourist industry employs undocumented workers.
Titled "Welcome to America's Finest Tourist Plantation," the piece was funded in part through hotel and motel bed taxes and affixed to the backs of 100 San Diego Transit buses. The triptych showed the hands of hotel and restaurant workers and a law officer handcuffing workers.
The posters were up during the week of Super Bowl XXII, and city officials sought, unsuccessfully, to remove them.
Last April, Avalos and his poster collaborators struck again. Installation Gallery commissioned Deborah Small, Avalos and bus poster artists Elizabeth Sisco and Louis Hock to paint a billboard as part of the city's annual downtown Artwalk festival.
The billboard raised the issue of racism in San Diego by focusing on the city's unwillingness to name the new convention center for the Rev. Dr. Martin Luther King Jr.
Next to a black-and-white portrait of the Nobel Peace Prize winner were the words "Welcome to America's Finest a) city b) tourist plantation c) Convention Center."
Until late 1988, Avalos served as an artist in residence at the Centro Cultural de la Raza. Last year he resigned to begin graduate studies in art at UC San Diego.
Avalos' solo exhibition of sculptural pieces and tables, "Cafe Mestizo," will be on view at the Intar Latin American Gallery in New York City from Tuesday through July 23.