Making a big stink about ‘disgusting’ art just attracts audience for exhibit

Friday, October 1, 1999

Bad facts, they say in law school, make bad law. If that’s true, we should expect the Brooklyn Museum of Art dispute to make some really bad law.

It’s difficult to imagine how the facts surrounding the museum’s controversial exhibit could be any less appealing. The exhibit itself, for example, includes a dissected pig floating in formaldehyde, a portrait of a child-killer created from children’s handprints and a painting of the Virgin Mary splattered with elephant dung and covered with pornographic cutouts of buttocks. The painter of the Virgin Mary piece defends the pornographic elements of his work by asserting that classical images of the religious icon also are “sexually charged.” He also claims — apparently as a compliment — that elephant dung is symbolic of Zimbabwe’s natural beauty.

The antagonist in this drama is New York City Mayor Rudolph Giuliani, who already has run roughshod over street artists, protesters and advertisers in his effort to clean up the city. He did not hesitate to label the exhibit “outrageous,” “horrible” and “disgusting.” He immediately vowed to freeze the city’s $7 million annual funding of the museum, which is approximately one-third of the museum’s budget. He also threatened to terminate the museum’s lease and take control of its board of directors. The city filed suit yesterday in state court asking to have the museum evicted.

The museum, playing the part of protagonist, responded to the mayor’s threats by suing him, claiming that his actions violated the First Amendment. The righteousness of the museum’s indignation, however, was limited by its acknowledgment that the exhibit is inappropriate for children and its decision to post signs warning of the exhibit’s explicit nature.

Also heard from in the dispute were Hillary Rodham Clinton, Cardinal John O’Connor and the leaders of more than 20 other city museums and cultural centers. Clinton, Giuliani’s likely opponent in the 2000 senatorial race, predictably said that she did not like the exhibit but that she supported the museum’s right to show it. O’Connor predictably criticized the exhibit, calling it an attack on all religion. The city’s cultural leaders were surprisingly silent until finally calling Giuliani’s actions “a dangerous precedent.”

The precedent at issue, however, is the one that will be set as courts consider whether Giuliani’s threats violate the First Amendment. Giuliani and his supporters argue that the government is not required to subsidize offensive art. They rely on the U.S. Supreme Court’s 1998 decision in NEA v. Finley, in which the court held that Congress could constitutionally require the National Endowment for the Arts to consider “general standards of decency and respect for the diverse beliefs and values of the American people” when awarding grants to artists.

The museum counters that the city, once it decides to fund the arts, cannot condition that funding on the expression of certain viewpoints. Such viewpoint discrimination, the argument continues, is patently unconstitutional under the First Amendment.

Although publicly funded art has generated several controversies in recent years, the law provides little guidance in this area. The First Amendment clearly prohibits governments from discriminating against speakers because of their message, but that line blurs when the government, through public funding, becomes the publisher of the message. The decision in NEA v. Finley is not terribly instructive, as the court in that case carefully narrowed its holding to apply only to “advisory” funding criteria that do not expressly deny funding to art conveying specific messages. If the Brooklyn Museum of Art case somehow gets to the Supreme Court, the court will be forced to face the issue it ducked in NEA.

In the absence of a clear precedent permitting Giuliani’s actions, the New York courts should resolve any doubts in favor of the right of free expression. The city may in the future adopt rules like the one approved in NEA, but the First Amendment does not allow Giuliani to adopt and apply such rules retroactively. As in the past, however, Giuliani seems unfazed by First Amendment concerns, treating them as political questions rather than constitutional requirements.

However this case is ultimately decided, one fact is certain — more people will seek out the exhibit now than would have before Giuliani turned it into a national issue. In the short term, at least, Giuliani’s actions have backfired and have made the museum a heroic defender of the First Amendment.

And, at the same time, his actions have made elephant dung the talk of the town.