As NYC mayor, Giuliani chose order over free speech

Wednesday, July 11, 2007

One in a series of articles on the First Amendment record and views of 2008 presidential candidates.

Before he became an iconic figure in the war on terror, presidential candidate and former New York City Mayor Rudolph Giuliani waged a prolonged war on another target: the First Amendment.

In his seven years as mayor from 1994 to 2001, Giuliani took on a wide range of public expression — from ads on the sides of buses to controversial art at the Brooklyn Museum — in legal battles that earned him a reputation for brushing aside First Amendment values in pursuit of his goal of bringing order back to New York City.

“Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do,” Giuliani said early in his tenure as mayor. “You have free speech so I can be heard.”

The New York Civil Liberties Union took the Republican mayor to court more than 20 times in First Amendment disputes, and won most of them. In April 1999, Giuliani earned a dubious distinction from the Thomas Jefferson Center for the Protection of Free Expression: a “lifetime Muzzle award,” given to spotlight his attacks on the First Amendment. “He has stifled speech and press to so unprecedented a degree, and in so many and varied forms, that simply keeping up with the city’s censorious activity has proved a challenge for defenders of free expression,” the center said at the time. And that was five months before the start of the Brooklyn Museum controversy, the best-known First Amendment target Giuliani went after.

Noted First Amendment lawyer Floyd Abrams, who was Giuliani’s adversary in the Brooklyn Museum controversy and other First Amendment disputes during the mayor's tenure, said recently, “Viewed as a whole, Rudolph Giuliani was a good, if overrated mayor who was at the same time the single most consistent opponent of First Amendment rights in living memory.”

Abrams continued, “So often did he take authoritarian action in direct and unambiguous violation of the First Amendment that he was reprimanded by the Court of Appeals and was at great personal risk of being held liable in the Brooklyn Museum case. His First Amendment record was abysmal.”

Former solicitor general Theodore Olson, a legal adviser to Giuliani, said in response to Abrams' comment, “I have the greatest respect for Floyd Abrams, but respectfully submit that when someone uses that sort of language, it can't be taken too seriously.”

'Should know better'
That record is especially remarkable, given that 30 years ago, during a stint in private practice, Giuliani represented the news media, among other clients. “He certainly should know better,” says Robert O’Neil, the Thomas Jefferson Center’s director.

In one case in 1979, Giuliani represented the New York Daily News in a lawsuit seeking to open a murder trial to the press and public. The defendant was a 13-year-old being tried as an adult. “The First Amendment is vital to the way our government functions … as vital, as important as an individual’s right to a fair trial,” Giuliani told a Bronx judge.

Giuliani lost the case. After serving in the Reagan Justice Department, then as U.S. attorney in New York, he returned to private practice and focused on running for mayor. By the time he became mayor, he was more willing to let the First Amendment play second fiddle to other priorities than he was in the 1979 courtroom-access case.

Few First Amendment disputes arose during Giuliani’s first term says O’Neil, but during his second term, “he seemed to feel greater latitude…a readiness to impose his values on the entire city.”

Several of the second-term disputes had to do with protests and other assemblies planned around the city. Giuliani raised safety and traffic concerns, but sometimes he also objected to the messages to be conveyed.

In 1998 and 1999 alone, Giuliani and his administration tried to block: a procession of cab drivers protesting new taxi regulations; a “million youth march”; an anti-AIDS march; a Ku Klux Klan march; and street vendors in the financial district and near the Metropolitan Museum of Art. When challenged, most of these efforts were rejected. The Klan case produced a partial win for the city, however. The march was allowed to proceed, but the 2nd U.S. Circuit Court of Appeals said the city could forbid the marchers from wearing their hoods.

There were other cases in which Giuliani or his administration seemed to act to stifle the message as well as the messenger. The city defended a policy that required police officers to obtain permission before making public statements about police policies and practices. The policy was struck down after the Latino Officers Association challenged it on First Amendment grounds.

And then there was the case of the bus ads for New York Magazine. In 1997, the magazine purchased space on the sides of city buses for ads with the slogan, “Possibly the only good thing in New York Rudy hasn’t taken credit for.” Giuliani directed the Metropolitan Transportation Agency to remove the ads, invoking a law that bars commercial use of a person’s name without the person’s permission. But a federal district court said the ads were a form of political satire protected by the First Amendment, and the 2nd Circuit said removal would be an unconstitutional prior restraint on expression.

Battle in Brooklyn
Then came Giuliani’s biggest First Amendment tussle: his battle to keep the Brooklyn Museum from mounting an exhibition that he regarded as “sick” and “disgusting.”

The museum, which has the second-largest art collection in the nation, arranged to show an exhibition of the work of young British artists that had caused controversy in Europe. Among the works was a portrait of the Virgin Mary by Chris Ofili that included elephant dung and small depictions of human genitalia and buttocks in the background. Giuliani was also offended by one of the works of Damien Hirst, which displayed cross-sections of the bodies of real animals preserved in formaldehyde.

The museum and its art are privately owned, but the land on which it sits is leased from the city, and the city pays for regular maintenance. As the date for the exhibit opening in October 1999 approached, museum officials kept city officials apprised, and there was no objection.

But on Sept. 22, the mayor's office abruptly informed the museum that the city would terminate all funding for the museum if the exhibition were not canceled. The controversy escalated as Giuliani threatened more and more punishment, including replacing the museum's board of trustees, canceling the lease, and taking possession of the museum building. At one point he said he would not “have any compunction about trying to put them out of business, meaning the board.”

In a recently published biography of Giuliani, Giuliani: Flawed or Flawless, The Oral Biography lawyer Abrams, who represented the museum, is quoted as offering a theory to explain Giuliani’s outrage at the exhibit. “I think he viewed himself as a tough guy — a guy who can’t be pushed around, a guy who cannot accept other people’s definitions of problems,” Abrams said, adding that he was “filled with the sort of self-assurance which led him to conclude that if he was angry enough he must be right and the law perhaps would even say he was right. I don’t think he spends much time with self-doubt.”

In reality, though, Giuliani’s anger-filled statements about the museum made it easy for Abrams to make his case that the city’s position violated the First Amendment. “Usually, people deny that they are trying to suppress speech,” Abrams said in the book. Giuliani, by contrast, “made a record for us very rare in First Amendment case law.”

During one press conference, Giuliani acknowledged that the Constitution permits people to do “disgusting and horrible things.” But he said that license did not mean the city had to pay for those things. “If they feel it is necessary to cut up animals, put them in formaldehyde and show their inner parts to people, if they think that it's necessary to throw feces on important national and religious symbols, then they should pay for it themselves,” he said. The city went to state court to begin the process of evicting the museum from the building.

As the exhibit opened under a cloud, the museum went to federal court to prevent the city from cutting off funds. Ruling in the case, Judge Nina Gershon made quick work of Giuliani’s arguments. “The facts establish an ongoing effort by the mayor and the city to coerce the museum into relinquishing its First Amendment rights,” she wrote in a Nov. 1, 1999, decision.

On the funding issue, Gershon said though government is not required to provide all kinds of benefits to everyone, “it may not deny them if the reason for the denial would require a choice between exercising First Amendment rights and obtaining the benefit.” She added, “Federal taxpayers in effect pay for the mailing of periodicals that many of them find objectionable, and they subsidize all manner of views with which they do not agree, indeed, which they may abhor, through tax exemptions and deductions given to other taxpayers.”

Gershon ordered the city to restore all funding and not punish the museum in any way. Giuliani said the judge was “totally out of control” and appealed to the 2nd Circuit.

Before that court in early 2000, appeals judges were openly hostile to the city’s position. When the city attorney insisted that it was not a First Amendment case, one judge snapped, “It isn’t?” and another said the lawyer’s statement was “the most extraordinary thing” a city lawyer had ever told the court.

Perhaps seeing the handwriting on the wall, the city settled the case before the appeals court ruled. The city agreed to drop its lawsuit and fund a Brooklyn Museum modernization project. The First Amendment battle, one of the fiercest in recent years, was over.

Since the terrorist attacks of Sept. 11, 2001, and the end of Giuliani’s tenure as mayor, he has said little about the First Amendment directly, and the Brooklyn Museum conflict has not emerged significantly as a campaign issue.

On the presidential campaign trail in August 2007, Giuliani took a position on school vouchers unpopular with advocates of separation of church and state. During a town hall meeting in Merrimack, N.H., he argued for taxpayer-funded vouchers for private elementary and secondary schools, saying school choice works for the nation's colleges and universities.

“How is it that we have the best higher education in the world and a weaker K-through-12 system?” Giuliani said. “What's the difference? Why does one operate so well and the other not nearly as well? American higher education is based on a quintessential American principle — choice.”

While mayor, Giuliani backed vouchers for private and parochial schools in the face of opposition from his own schools chancellor.

“I'd give parents control over their children's education,” he said. “We've got to have competition operating. If we don't do that, our education system is going to deteriorate.”

Should Giuliani’s First Amendment track record be a factor in considering his credentials as a possible president of the United States? The Thomas Jefferson Center’s O’Neil is not sure. While Giuliani’s second-term hostility toward expression he did not like betrays “an impulsive quality,” O’Neil recognizes that some say “he is a totally different person” since 9/11. “Maybe he changed after 9/11. We’ll see.” But changed or not, Giuliani is still the only person to have won a dubious lifetime achievement award from the center — marking a lifetime’s worth of censorious behavior.

The Associated Press and First Amendment Center Online intern Melanie Bengtson contributed to this report.