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WHEN ART SMARTS

As abuses of government power go, it was pretty silly, but not too silly to be dealt with seriously, especially by a federal judge.

It was the ”arrest” by three Chicago aldermen of a student painting of the late Mayor Harold Washington in the School of the Art Institute of Chicago in 1988, months after the mayor`s sudden death.

The painting, titled ”Mirth and Girth,” was rude and crude in its depiction of the late mayor in women`s underwear. So was the behavior of the aldermen. In a world-class example of personal grievance acted out as government censorship, they seized the painting from the gallery wall and held it in custody for two hours, during which it was damaged.

Four years later, their rough justice has been briskly smoothed out by a federal judge in a welcome and inevitable ruling. U.S. District Judge George Lindberg has declared that Aldermen Allan Streeter (17th), Dorothy Tillman

(3d) and Bobby Rush (2nd) violated the civil rights of then-student artist David C. Nelson Jr.

Nelson is asking $100,000 in damages, although it is probable that the aldermen only increased the painting`s market value by giving it so much undeserved attention.

The judge`s decision was a just response to unjust acts. The best the aldermen could do to defend themselves in the case was to claim that removing the painting may have prevented violence ”on the scale of the 1960s West Side riots” in Chicago`s black community. Just as freedom of speech doesn`t allow you to falsely shout ”Fire!” in a crowded theater, their reasoning goes, neither should it allow you to ridicule a popular mayor shortly after his death.

But the analogy doesn`t hold. Nelson`s painting, which hardly anyone knew about before the aldermen made it famous, posed less hazard to public order and public safety than to public taste. The possibility that it might cause a riot was remote compared to the certainty that the aldermen would violate Nelson`s 1st Amendment right to free speech, his 4th Amendment right to protection against unreasonable seizure and his 14th Amendment right to due process.

Judge Lindberg also held that former Police Supt. LeRoy Martin must go to trial for ordering the painting taken into custody. Perhaps, looking back, Martin wishes he had taken the aldermen into custody instead. He would have been standing on firmer constitutional ground. The aldermen claimed Nelson abused the Bill of Rights, but as such abuses go, their overzealous acts beat his rude expression hands down.