American Bar Association
Forum on Communications Law
NYC Mayor Giuliani Loses Round One in Battle Against the First Amendment
by VICTOR A. KOVNER, EDWARD J. DAVIS, AND ANKE E. STEINECKE
Law professors in New York (and elsewhere) have been thanking Mayor Rudolph Giuliani for "constantly generating classroom hypotheticals" for teaching the First Amendment.1 Since Mayor Giuliani took office in 1994, the City of New York has been held liable for infringing free speech rights in numerous ways, including: prohibiting visual artists from displaying or selling their works in public places without a permit,2 banning bus advertisements that make humorous use of the mayor's name,3 restricting access to the steps of City Hall for press conferences,4 prohibiting public employees from speaking to the press-even about noncontroversial issues-without official consent,5 denying parade and rally permits,6 forcing a private cable system to carry certain commercial news broadcasts on channels designated for city use,7 and preventing a church-sponsored HIV-education program from distributing condoms in a park,8 just to name a few.
The mayor's latest contribution to the pedagogical advancement of constitutional law came on November 1, 1999, when Judge Nina Gershon of the U.S. District Court for the Eastern District of New York issued a preliminary injunction against the city and the mayor, thereby bringing a temporary halt to their efforts to punish the Brooklyn Museum for displaying art that the mayor had declared "disgusting" and offensive to Roman Catholics.9 The Second Circuit is likely to hear arguments in January on the city's appeal of Judge Gershon's decision, which reaffirmed the constitutional principle that-once a decision has been made to provide general public support to a cultural institution-the institution may not be punished because the government objects to what it does. The case will help determine whether publicly supported institutions like museums and libraries will continue to make a multitude, even a cacophony, of competing views available as a means of fulfilling their public obligations and advancing our freedoms.
A Sensation It Is
The latest conflict over free speech erupted on September 22, 1999, when the mayor declared that the exhibition "Sensation: Young British Artists from the Saatchi Collection," which was scheduled to open at the Brooklyn Museum the following week, was "disgusting," full of "sick stuff," and offensive to Catholics. Launching a public crusade against the show, the mayor announced that he wanted the museum to remove the offending art or cancel the exhibition. The city informed the museum that if it did not adhere to the mayor's wishes, all municipal funding for the museum would be terminated, the museum's board of trustees would be dismissed, and the museum would be evicted from the city-owned building that it has occupied for more than 100 years. The museum receives almost $7 million a year, or nearly one-third of its annual budget, from the city for "maintenance, security, curatorial, administrative, educational services and energy costs." Specific exhibitions are largely underwritten with private contributions.
Most New Yorkers were surprised that the Brooklyn Museum has been made into a battleground in the struggle over public funding for the arts. The museum is better known for its community educational programs and its permanent collection of 1.5 million objects-including an especially famous collection of ancient Egyptian artifacts and one of the most important collections of American paintings in the United States-than for elitist, avant-garde artistic events. But there is no question that the "Sensation" show is controversial. When the exhibition opened at the Royal Academy of Art in London in 1997 and the Hamburger Bahnhof in Berlin a year later, it generated loud reactions that ranged from admiration to disgust. The Brooklyn Museum advertised the exhibition with a mock health warning: "The contents of this exhibition may cause shock, vomiting, confusion, panic, euphoria, and anxiety." Among the pieces displayed are dissected carcasses of farm animals suspended in formaldehyde and deformed mannequins in sexually explicit poses.
The mayor did not see the show but took particular offense at the now infamous "elephant dung" painting, The Holy Virgin Mary, by British-Nigerian artist Chris Ofili. The painting shows a black woman painted in bright colors against a gold background in a style reminiscent of African art, with a lacquered disk of elephant dung decorating her chest10 and small clippings from pornographic magazines floating where cherubs might appear in a more traditional depiction. According to published reports, Ofili is a practicing Roman Catholic, who frequently incorporates elephant dung-which is used as an artistic medium as well as a building material in Africa-in his works "in an effort to ground them physically in a cultural as well as natural landscape."11 Apparently unimpressed by the fact that the painting appears to be expressing serious ideas about the artist's religious and cultural experience, the mayor denounced it as a "desecration of someone else's religion" and a "disgusting" work intended to "attack and bash the Catholic religion." He went on to dismiss the exhibit as a whole as "not art."
It is sometimes difficult to remember how much of the art that is now widely cherished was received with revulsion and horror in its own time. The Brooklyn Museum itself has documented the historical process through which art that may shock or offend when new eventually becomes accepted and valued. In a 1990 exhibition entitled "The Play of the Unmentionable," the museum presented more than a hundred objects from its collection, many of them now recognized as masterpieces, that raised objections from their original audience. Among the works in the 1990 exhibit were paintings by Matisse, Braque, and Picasso that children were prohibited from seeing when they were first displayed in New York in the Armory Show of 1913.12 The New York Times concluded at the time that "[t]he Armory Show is pathological."13 Paul Chabais's most famous painting, September Morn (1913), was banned from the mails for decades but was finally acquired and exhibited in the Great Hall of the Metropolitan Museum of Art in 1957.14
Unfortunately, there is nothing new about government efforts to suppress controversial artistic expression. Art that challenges convention makes an attractive target for authorities to assert or maintain social control. Anyone who attended the 1993 exhibition on "degenerate art" at the New York Public Library, "Assault on Arts: Culture and Politics in Nazi Germany," which concerned works of art that were denounced as decadent and blasphemous and were removed from German museums in the 1930s, would have been sensitized to the risks taken by a society in which government censorship is permitted.15 Suppression deprives society of potentially controversial and constructive ideas; just the threat of punishment induces self-censorship. Guiseppe Verdi was forced to rewrite many operas, relocating Un Ballo in Maschera to a setting in Boston, for example, to avoid suppression by governmental authorities,16 and he effectively buried the score of Stiffelio, whose main character is a minister who forgives his wife's adultery, to avoid religious censorship.17
Americans certainly have not been immune to the impulse to censor challenging works. In 1984, former Congressman Mario Biaggi sought to halt NEA funding to the Metropolitan Opera because he found a production of Verdi's Rigoletto offensive to Italian-Americans. He was unsuccessful and received no support from city officials.18 In 1949, Congressman George A. Dondero attacked the Museum of Modern Art, the Art Institute of Chicago, the Fogg Art Museum at Harvard University, and professional art associations for "heresy" and for displaying works he termed "degenerate" because "modern art . . . and Communism . . . are synonymous."19 Ironically, at the same time, the Soviet Union was condemning modern art as decadent and bourgeois and prescribing social realism as the standard for all art.20
Artworks with religious subjects have a special capacity to create controversy. They have done so in every age, from Veronese's The Last Supper (retitled Feast in the House of Levi after the artist's trial by the Inquisition) to Caravaggio's altarpiece Death of a Virgin (using a prostitute as a model for the Virgin, depicted with bare feet and a bloated stomach)21 to George Grosz's satiric antiwar drawing, Christ in a Gas Mask (for which he was criminally prosecuted)22 to Terrence McNally's play Corpus Christi (featuring gay men in a story based on Jesus and his disciples) and Schoenberg's opera Moses und Aron (in which naked virgins recently appeared in a biblical orgy at the New York City Opera). The city's attempt to suppress the Brooklyn exhibit is hardly the first occasion upon which works of art that may be taken to offend religious sensibilities have encountered governmental censorship. In the 1950s, New York State sought to ban The Miracle, the classic motion picture directed by Roberto Rossellini, starring Anna Magnani playing a woman who believes she became pregnant in the same manner as the Virgin Mary. Striking down the state prohibition, the Supreme Court wrote:
In seeking to apply the broad and all-inclusive definition of "sacrilegious". . . the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies.23
Because the First Amendment embodies two of our strongest traditions, freedom of expression and avoiding an establishment of religion, any government action aimed at works with religious themes is especially fraught with constitutional dangers. Mayor Giuliani thus walked straight into a minefield when he voiced his belief that "a government subsidized enterprise . . . can't do things that desecrate the most personal and deeply held views of the people in society" and that "therefore we will do everything that we can to remove funding from the [Brooklyn Museum] until the director comes to his senses."24
On September 28, 1999, the museum filed an action in the Eastern District of New York, seeking declaratory and injunctive relief to prevent the city from punishing or retaliating against the museum for displaying the exhibit. When the city withheld its monthly payment of $497,554 to the museum on October 1, the museum added a claim for damages. The museum acknowledged that the government has no general duty to fund artistic expression but argued that the city could not retaliate or withhold previously appropriated funds because of a viewpoint the city interprets a work of art to express.
Meanwhile, on September 30, the city filed an action for ejectment of the museum in New York State Supreme Court (the trial-level court in New York) for Kings County. The state court action alleged that the museum had forfeited its right to occupy the premises by violating its lease, its funding contract, and its enabling legislation in two ways. According to the city, the museum would violate its obligation to "educate and enlighten school children and the public" by proceeding with the exhibit and its "inappropriate" works that are "offensive to significant segments of the public." The city also alleged that the museum should be ejected because it would be imposing a $9.75 admission charge for the exhibition without the mayor's approval and improperly advancing "the commercial interests of private parties" rather than public purposes. The works in "Sensation" are from the private collection of Charles Saatchi, who is a client of Christie's, the auction house, which also gave financial support to the exhibition.
The last two grounds have received significant publicity, especially because Saatchi himself was a largely anonymous contributor to the show, but they were admitted afterthoughts. In argument before Judge Gershon, the city abandoned its arguments that the museum had violated its lease by charging admission to the show and that the museum was engaged in a conspiracy with Mr. Saatchi. The city argued simply that it had a right to eject the museum based on the content of the "Sensation" exhibit, asserting that the First Amendment does not prohibit the city from withdrawing funds from displays of art that it deems offensive or from seeking to eject a museum from city-owned premises for failing to serve the city's purposes. The city also argued that, despite the First Amendment issue raised, Judge Gershon should abstain from deciding the case and defer to the state ejectment action under the principles enunciated in Younger v. Harris.25
After extensive briefing, limited discovery, and three hours of oral argument on October 8, 1999, Judge Gershon, on November 1, issued a sweeping forty-two-page opinion, in which she refused to abstain from exercising federal jurisdiction in the face of the state eviction proceeding and granted a preliminary injunction to restore the withheld municipal funding and to prohibit the city from punishing the museum or its trustees for exhibiting the "Sensation" show. 26
Focusing on the government's purpose, Judge Gershon found a high likelihood that the museum would prevail on the merits at trial, based upon the "bedrock principle underlying the First Amendment" that "bars government officials from censoring works said to be 'offensive,'27 'sacrilegious,'28 morally improper,'29 or even 'dangerous.'30"31 Acknowledging, as the museum did, that the government has no obligation to fund artistic expression, Judge Gershon observed that the Supreme Court has nonetheless "made clear that, although government is under no obligation to provide various kinds of benefits, it may not deny them if the reason for the denial would require a choice between exercising First Amendment rights and obtaining the benefit."32
The decision follows the line of Supreme Court cases that forbid government officials from terminating or refusing to renew contracts with private individuals or enterprises in retaliation for their exercise of First Amendment rights.33 The same principles had earlier been applied to protect the Cuban Art Museum in Miami from retaliation when its municipal landlord decided not to renew its lease because of politically controversial works of art the museum had displayed.34 Judge Gershon's decision was also guided by the Supreme Court's disapproval of a wide variety of indirect burdens upon speech-including the withholding of subsidies-that necessarily violate the First Amendment when the burdens are applied to punish or hamper the expression of particular views.35 Judge Gershon had little trouble finding that suppression of a particular perceived viewpoint was the government's purpose here, given the many explicit statements exactly to that effect made by the mayor and other officials.
Judge Gershon placed her decision squarely within the Supreme Court's recent jurisprudence on government subsidies for the arts. In National Endowment for the Arts v. Finley, the Supreme Court approved Congress's admonition that the National Endowment for the Arts take "decency and respect" into consideration when making funding grants,36 but the Court emphasized that the policy would not "preclude or punish the expression of particular views," noting that the provision could be upheld only[u]nless or until [it] is applied in a manner that raises concern about the suppression of disfavored viewpoints [because] even in the provision of subsidies, the Government may not "ai[m] at the suppression of dangerous ideas". . . if a subsidy were "manipulated" to have a "coercive effect," then relief could be appropriate.37
Judge Gershon dismissed any notion that the city's acts were anything but punishment for the museum's speech, finding thatthe undisputed record demonstrates that the Mayor and other senior city officials were offended by the content of the exhibit, as they stated from the beginning, and then sought to find a basis in the pertinent legal instruments which could plausibly justify their determination to compel the museum to remove certain offending works . . . . [I]ts purpose is directly related, not just to the content of the exhibit, but to particular viewpoints expressed. . . .
Because the withholding of funds, the ejectment action and the other threats against the museum were "punishment for something else" (the museum's refusal to stop the exhibition), a "sham intended to deter future speech," and "part of an ongoing effort to retaliate against and deter plaintiff's exercise of First Amendment rights,"38 Judge Gershon determined that she could not abstain in favor of the state court ejectment action, given the exception to the Younger doctrine when state proceedings are instituted in bad faith or for purposes of harassment or retaliation, holding that "the City cannot oust the federal courts of jurisdiction over a fundamental First Amendment dispute by asserting in state court a landlord-tenant issue, especially one that . . . is purely pretextual."39 Although the possible commercial motives of the owner of the Saatchi collection have since been mentioned as a reason for evicting the museum, there is no question that its investigation and threats were, from the onset, motivated by a desire to prevent the display of art that the city took to represent an objectionable view of a religion.
In response to questioning from the bench, the city had attempted to distinguish an art museum that displays works someone finds offensive from a public library that makes books such as Hitler's Mein Kampf available to the public. The court made it clear, however, that visual images need constitutional protection as much as written words. Indeed, the visual arts may be especially vulnerable to the chilling effect of government retaliation. Works of art that may offend may also be the most eloquent, and works of art that are intended to stir thought may be deliberately ambiguous. But artists may steer clear of controversial subjects if they fear that their sometimes subtle and ambiguous works may be misinterpreted. As a result, our public discourse could be severely impoverished.
The city's argument that it had an obligation to dissociate itself from "antireligious art" fared no better:
No objective observer could conclude that the Museum's showing of the work of an individual artist which is viewed by some as sacrilegious constitutes endorsement of anti-religious views by the City or the Mayor, or for that matter, by the Museum, any more than that the Museum's showing of religiously reverential works constitutes an endorsement by them of religion. The suggestion that the Mayor and the City have an obligation to punish the Museum for showing the Ofili work turns well-established principles developed under the Establishment Clause on their head. If anything, it is the Mayor and the City who by their actions have threatened the neutrality required of government in the sphere of religion.40
Kicking It Up a Notch
The story does not end there. After Judge Gershon prohibited the city from withholding funds, evicting the museum, or firing its board, the mayor declared that "[t]he Judge is totally out of control," and the city filed its appeal to the Second Circuit. An expedited briefing schedule has been set, with oral argument to be heard in early 2000.
The city's appeal focuses on the question of abstention and on whether the museum truly faces irreparable harm. Judge Gershon identified irreparable harm not only in the pendency of an eviction proceeding and the possible loss of substantial funding, but also in the immediate effect those two threats would necessarily have on the museum's exercise of its First Amendment rights in the absence of an injunction. Judge Gershon also found it inconsistent for the city to insist that it had brought the eviction proceeding in good faith and that its aim was "putting them out of business, meaning the board," while protesting that there is no prospect of imminent irreparable harm. Moreover, the issues of irreparable harm and likelihood of success, Judge Gershon noted, may tend to converge in First Amendment cases, because of the sensitivity of free speech to "governmental demands for orthodoxy."
If the mayor's attack on the Brooklyn Museum shows anything, it proves that art can move people. Only the power of art to enlighten, challenge, frighten, and provoke can account for what seems to be the cultural equivalent of blitzkrieg. The outcome of the case may well guide government officials into the next century as they consider whether to try to purge what they view as "disrespectful" or "sacrilegious" views from our museums, libraries, and educational and cultural centers, or instead let many voices be heard, harmonious or harsh, in the interest of encouraging the most vigorous debate and the freest expression.
Works from the "Sensation" exhibition can be seen on the Internet on David Bowie's Website at www.davidbowie.com/sensation .Endnotes1. Associated Press, Dec. 2, 1999.2. Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996).3. New York Magazine v. Metropolitan Transit Auth., 987 F. Supp 254 (S.D.N.Y. 1997), aff'd, 136 F.3d 123 (2d Cir. 1998).4. Housing Works v. Safir, 1998 U.S. Dist. LEXIS 10962 (S.D.N.Y. July 21, 1998).5 .Harman v. City of New York, 140 F.3d 111 (2d Cir. 1998).6. Million Youth March v. Safir (Million Youth March I), 155 F.3d 124 (2d Cir. 1998); Million Youth March v. Safir (Million Youth March II), 1999 U.S. Dist LEXIS 13308 (S.D.N.Y. 1999); United Yellow Cab Drivers v. Safir, 1998 U.S. Dist. LEXIS 7742 (S.D.N.Y. 1998).7. Time Warner Cable v. City of New York, 943 F. Supp 1357 (S.D.N.Y. 1996), aff'd, 118 F.3d 917 (2d Cir. 1997).8. Kalke v. City of New York, 666 N.Y.S. 2d 631, 245 A.D. 2d 221 (1st Dep't 1997).9. Brooklyn Inst. of Arts and Science v. City of New York and Rudolph W. Giuliani, 64 F. Supp. 2d 184 (E.D.N.Y. 1999).10. Unfortunately, many media organizations repeated inflammatory mischaracterizations of the work as "The Virgin Mary smeared with feces" and the artist as "flinging excrement on the Virgin Mary" or "throwing dung on important religious symbols."11. His series of paintings entitled Afrodizzia incorporated the names of black cultural heroes in elephant dung. P. Schjeldahl, Those Nasty Brits, NEW YORKER, Oct. 11, 1999, at 104.12. Viewpoints, N.Y. NEWSDAY, Oct. 15, 1990.13. J. CLAPP, ART CENSORSHIP: A CHRONOLOGY OF PROSCRIBED AND PRESCRIBED ART 191-92 (1972).14. CLAPP, supra note 13, at 315.15. See S. BARRON, DEGENERATE ART: THE FATE OF THE AVANT-GARDE IN NAZI GERMANY (L.A. County Museum of Art 1991).16. M. HEINS, SEX, SIN AND BLASPHEMY. A GUIDE TO AMERICA'S CENSORSHIP WARS 170-71 (1998).17. See The File Room, Verdi Opera ,18. HEINS, supra note 16, at 120-21.19. CLAPP, supra note 13, at 281-83.20. Id. at 279.21. J.A. Allen, The Sacred and the Profane, A Continuing Story in Western Art, NEW ART EXAMINER, June 1990, at 18.22. CLAPP, supra note 13, at 224-26.23. Burstyn, Inc. v. Wilson, 343 U.S. 495, 504-05 (1952).24. 64 F. Supp. 2d at 191.25. 401 U.S. 37 (1971).26. 64 F. Supp. 2d at 184.27. Texas v. Johnson, 491 U.S. 397, 414 (1989).28. 343 U.S. at 531.29. Hannegan v. Esquire, 327 U.S. 146, 149 (1946).30. Regan v. Taxation with Representation of Washington, 461 U.S. 540, 548 (1983).31. 64 F. Supp. 2d at 198.32. Id. at 199.33. See, e.g., Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996); Perry v. Sindermann, 408 U.S. 593 (1972).34. Cuban Museum of Arts and Culture, Inc. v. City of Miami, 766 F. Supp. 1121 (E.D. Fla. 1991).35. 327 U.S. at 146 (denial of second-class mail privileges), Regan, 461 U.S. at 540 (denial of nonprofit status), Speiser v. Randall, 357 U.S. 513 (1958) (denial of property tax exemptions), Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) (denial of subsidy to student religious publication), Burstyn, 343 U.S. at 495 (denial of movie license).36. National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).37. 118 S. Ct. 2170, 2178 (citations omitted).38. 64 F. Supp. 2d at 196.39. Id. at 193.40. Id. at 205.Victor A. Kovner, Edward J. Davis, and Anke E. Steinecke are attorneys in the New York City office of Davis Wright Tremaine LLP and represent a coalition of museums and other organizations as amici curiae in the Brooklyn Museum case.