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PRINT November 1999

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the “Sensation” sensation

WHAT DOES ARTFORUM think of the Brooklyn Museum of Art’s turn at “Sensation,” Charles Saatchi’s well-traveled collection of young British art? The question is probably moot, for when New York mayor Rudolph Giuliani threatened to evict the museum and cancelled the city’s $7.2 million subsidy, discussion of aesthetic or intellectual worth receded in the face of principle. While awaiting a ruling on the BMA’s injunction request, Andrew Ross sat down with NYU law professor and First Amendment specialist Amy Adler to help navigate the questions raised by this latest assault in the culture wars.

ANDREW ROSS: For the public, Mayor Giuliani’s response to the “Sensation” exhibition is simply an issue of “free speech,” even though this is art owned by a private collector and exhibited at public expense. Could you clarify how the First Amendment applies in this case?

AMY ADLER: In the paradigmatic First Amendment case, the government arrests somebody and throws him in jail for what he’s said. When government funding of speech enters the picture, however, the issue becomes murkier. We may still have a private individual speaker, but you could argue that the government is in a sense also speaking, albeit indirectly, by virtue of the funding.

Case law is unclear right now as to how much room the government has to control the kind of art that it funds. The Supreme Court has looked at the question of government-funded speech in three recent cases, Rust v. Sullivan (1991), Rosenberger v. Rector and Visitors of U. Va. (1995), and NEA v. Finley (1998). In the Karen Finley case, the Court analyzed a funding clause that required the NEA to take “into consideration general standards of decency and respect for the diverse beliefs and values of the American public” when awarding grants. But the Court ducked the question of whether it would be constitutional to require the NEA to fund only decent and respectful art. Instead, the Court eviscerated the meaning of the provision, finding that it was just advisory and hortatory—it didn’t require the NEA to do anything other than to think about decency. Because of this interpretation of the statute, the Court avoided the task of clarifying the First Amendment boundaries in the context of government-funded speech.

AR: From a First Amendment standpoint, is there anything about this case that differentiates it from previous public flaps over “outrageous art”?

AA: The museum is seeking an injunction to prevent the mayor from carrying out his threats to withhold money and terminate the museum’s lease. Even though the taxpayer-funding angle makes the controversy similar to others we’ve seen, one difference is the posture Giuliani has taken. This is not a case where he made prospective requests of the Brooklyn Museum to change its general mission. Rather, he’s said: Unless you stop this show, we’ll cut off your funding. His threats of retribution because he doesn’t like the content of the show make this an easier case for the museum from a First Amendment standpoint. And his singling out of what he takes to be the anti-Catholic viewpoint of the Chris Ofili “Virgin Mary” painting looks like “viewpoint discrimination”—government retaliation against a speaker because it doesn’t like the speaker’s point of view. Even when speech is funded by the government, viewpoint discrimination is frowned on in First Amendment law.

It’s worth noting, too, that this case has already created what First Amendment scholars call a “chilling effect.” Someone affiliated with several cultural institutions told me today that, because of the controversy, curators are changing their minds about what they’re going to show. That effect was certainly evident in the differences between the two letters sent by the Cultural Institutions Group, which the Times published October 3. We’ll never know what art won’t be shown in the future because of fear of an angry mayor.

AR: How does this relate to Mary Boone’s arrest this week? Her comments in the New York Times, alleging gross mistreatment at the hands of the police, suggested that this was an act of revenge against art, encouraged by the mayor.

AA: The fact that it’s art has nothing to do with this case, because it appears that the government was not arresting her for the “meaning” of the art, but because the art violated a criminal prohibition on guns and ammunition. To put it in an extreme way: If someone committed a murder and called it performance art, the label “art” won’t protect him. It may be art, but it’s still a crime, regardless of any value or meaning we find in the expression.

AR: Yet virtually anyone unlucky enough to be detained by the NYPD can expect rough treatment and worse. Isn’t it too bad that she didn’t take the opportunity to call attention to police brutality in general rather than to the civil liberties of artists and arts professionals alone?

AA: Well, the whole story is fishy. There’s a New York Post reporter involved who called the police. Who knows? It seems unlikely, but she’s claiming that this was part of a Giuliani conspiracy against art. If that were the case, she would arguably have a First Amendment claim.

AR: One could argue that what’s at issue in the Brooklyn Museum case and others is that a portion of the welfare state—the portion that pertains to the arts—is vulnerable and open to attack. Yet every day of the week, government on all levels is busy gutting much larger portions of the welfare state. Why the outcry about the art part?

AA: I’m startled as well that people are so worked up about art, and in a way, I find it heartening that they care what’s happening inside a museum. But in a practical sense, this controversy might lead the government to increasingly back off from funding the arts at all. And then the issue of “free speech” truly becomes irrelevant, because there is absolutely no First Amendment obligation to fund anything. As we sit around and debate whether the government may control the content of art that it funds, we’re fighting over a smaller and smaller sector. What we’re really seeing is a debate that may lead to a dismantling of the government’s entire structure of paying for art.

AR: During the Cold War, the fundable artist’s profile was certainly that of the heroic, unattached free spirit to contrast with the unfree artist of the socialist bloc. Now that this profile is no longer necessary, the fundable artist seems to be increasingly viewed as a social-service worker, a volunteer-citizen partner with other civic groups, whose function is to stimulate urban renewal, provide creative therapy for disadvantaged groups, etc. With the trend toward the social-service definition of the artist, the debates about free expression become even less relevant.

AA: Even Giuliani, a few years ago, said he viewed art favorably because it benefited the city’s economy.

AR: On first appearances, it seems no one is losing in this case.

AA: Well, it certainly put the Brooklyn Museum on the map, and Chris Ofili is now an art star in this country. But what that whole happy scenario misses is all the art that won’t be shown because of fear.

AR: Where do you expect the discussion of the Brooklyn case to go at this point?

AA: It’s interesting that the “meaning” attributed to the artwork at the center of all this keeps changing. First there was the Giuliani position—it’s anti-Catholic. Then there was the resuscitation of the artist: It’s pro–Virgin Mary. We’ve got these two ridiculously overdrawn interpretations thrown around in political debate. Today, for the first time, I saw an article in the Times saying: Well, maybe the artwork is a little bit harder to pin down. I’m curious to see where the meaning of the work will go, and how the shifting interpretation will affect public discussion of the case. My predictions? Legally, based on general First Amendment principles, Giuliani will probably lose in court, at least eventually. Politically, the debate might become a weapon for conservatives to further cut funding. And I think we simply won’t ever know about all the ramifications in the realm of art, because that’s the problem with a chilling effect: It leads to self-censorship. Oh, and I do think there will be a lot of bad copycat Virgin Mary art.

Andrew Ross is director of the American Studies program at New York University and author of The Celebration Chronicles (Ballantine, 1999).