The Brooklyn Museum has won the first round in its First Amendment case in federal court. Indeed, we at NYFA joined with others in signing on to an Amicus Brief in support of the Museum's rights, so we appreciate what a major victory it is. But as too many of us know only too well, this crisis is really part of what seems to be a never-ending struggle to protect the First Amendment rights of the cultural community and every citizen; to strike a balance between church and state; and to determine the appropriate use of taxpayer dollars. No matter where on the spectrum of public opinion your thinking is regarding the Brooklyn Museum and the Sensation exhibit, you know our sage New York philosopher Yogi Berra was absolutely right when he said, "It's déjà vu-all over again!"

This past decade began with the Battles of Cincinnati and the Corcoran with the Mapplethorpe exhibit, and it's ending with the Battle of Prospect Heights over the Brooklyn Museum. At this Millenium Moment, many of us are individually going through a process of reflection; similarly, many arts organizations are thoughtfully examining what it means to keep our organizations alive and moving forward in the politically charged environment of our topsy-turvy world. As we look back to our recent past and as we anticipate our future, the fight over the museum has only added to the confusion; we're not sure whether our cultural glass is half-empty or whether it's half-full.

We are at a decisive moment in the evolution of our cultural community. Yet I do believe it is still a time for mindful celebration. NYFA, for example, is at a historic juncture regarding support for artists and contemporary work. On the one hand, we're celebrating the 15th year of our Artists' Fellowships, which means that, while it's not enough, we have awarded 2,600 fellowships statewide, totaling $16 million, and we hope this year, and in future years, that this will grow. Our SOS (Special Opportunity Stipends) Program for artists has now expanded to all parts of the state except New York City where we hope eventually it will develop as well. Certainly much more needs to happen for more artists, and we are trying to move ahead to create more opportunities for artists. Despite the major cuts in state arts funding some 10 years ago, unlike the federal scenario, New York State—thanks to the New York State Council on the Arts—has still maintained its steadfast commitment to support living artists, the very people who make the work, along with providing needed support to arts organizations.

On the other hand, as the Brooklyn situation once again shows, we're all caught up in the maelstrom of a clash of values and political positioning that comes too often when there's a lack of real dialogue and public understanding of the artist's point of view and what public funding for the arts is all about. The "sturm und drang" of the culture wars has taken its toll on far too many individual artists, artist organizations, and institutions in too many communities throughout the country. Moreover, instead of working together, we seem to be an increasingly balkanized community. This period of cultural meltdown has tainted our entire cultural environment. While one might expect the broader public to be confused by the Brooklyn Museum situation (because it is confusing and complex), what seems to me so sadly regrettable is how divided and fearful the arts community has become. Indeed, there is a real personal and institutional fear that is affecting the arts climate, burning an ever widening hole in our ozone layer of principles and strength. It has chilled the environment both for artists and for organizational risk-taking and more effective arts advocacy. Too often, I have seen too many in our own arts community seemingly frightened of standing up.

However true this may be, at the same time in the midst of all the Brooklyn sensationalism, something sensational, I believe, is stirring. As I looked out from the speakers platform at the solidarity rally in front of the Brooklyn Museum, held right before the exhibit opened, I was overwhelmed by the hundreds of young people—so many artists and students—who had gathered in support. Their concern seemed very different from scenes I witnessed at similar arts protest rallies just a decade ago where not enough young people appeared. I am also heartened by the programs undertaken by F.R.E.D.—Freedom Rules Every Democracy. This public education initiative has been created by a concerned group from the arts community who are committed to countering affronts to the First Amendment with creative actions. Their fearless imagination, risk taking and hard work is an outstanding demonstration of a commitment to the struggles that will inevitably continue. These efforts have made me understand once more that we must not let fear become a major crack in what has to be a more unified front in the arts as we face an oh-so real world of diverse opinions, politics, and public confusion.

I hope the immediacy of the Battle of the Brooklyn Museum is over. But in my gut I know it is with us for a long time—simply because the issues it raises and our need to tolerate differing opinions should always be discussed. I know we must be even more prepared for the implications this battle has on future government funding of the Brooklyn Museum itself, for the arts as a whole and for each and all of us. We must stand ready to participate in the annual and ongoing debates about the budgets for government arts funding, comprehensive and equitable cultural policy, greater understanding by more board members about these issues, increased education of a broader public, and tougher collective advocacy efforts in this coming year and in the years to come.

May this New Year be one of Mindful Celebration. May we unite together to stay creative and healthy as colleagues and work for the sake and health of our communities.

(These comments are based, in part, on remarks given at the recent ArtTrends Conference of the Alliance of New York State Arts Organizations in Syracuse, New York )

Chronology

compiled by Sonya Kimble-Ellis and William R. Kaizen

September 22, 1999

Mayor Rudolph Giuliani threatens to withhold city funding (about $7 million per year) from the Brooklyn Museum of Art if it doesn't cancel the exhibition, Sensation: Young British Artists from the Saatchi Collection. Chris Ofili's painting Holy Virgin Mary, part of the exhibition, is singled out as particularly offensive to Catholics because it includes an Afro-centric Madonna, elephant dung and collaged images from pornographic magazines. The city also threatens to withhold an additional $20 million already promised to the museum for capital improvements.

September 23, 1999

Giuliani increases his efforts against the museum threatening to terminate the museum's lease on the city owned building which it occupies and to seize control of the museum's Board of Directors. He claims that the museum violated the lease when it decided to prohibit children under 17 from entering the exhibit without an adult. The lease states that the museum must be free, open and accessible to all public and private schools. The Health Department is sent to the museum to investigate the exhibit because of Damien Hirst's dead animal sculptures. They find no health risks.

September 27, 1999

A proposal is made to remove some of the controversial works from the upcoming exhibition. The idea is quickly squelched by Arnold Lehman, the museum’s director. Lehman is not, however, completely opposed to separating some of the more controversial works of art from the rest of the exhibit. In order to diffuse the Mayor's attempt to use the ban on children as grounds for evicting the Museum the museum's Board votes to lift the age restriction and to post warning signs. This focuses the dispute on the First Amendment. Ofili says he doesn't feel the need to defend his painting and that it speaks for itself. He does, however, attribute his use of elephant dung to his African heritage saying that during a visit there he was struck by the beauty of the animals and the landscape. Ofili asserts that he was raised Catholic and still believes in God.

September 28, 1999

Refusing to segregate works in the exhibition, the museum files a lawsuit in Federal court against Mayor Giuliani. The suit accuses him of violating the First Amendment. Floyd Abrams, a First Amendment rights attorney, represents the museum.

September 29, 1999

A non-binding resolution, proposed by Senator Robert C. Smith (R, N.H.), is passed in the Senate. The resolution calls for an end to the museum's federal funding if it doesn't cancel the exhibition. Over the past few years, the museum has received monies from various federal sources including the National Endowment for the Arts. Giuliani accuses the museum of collusion with collector Charles Saatchi (owner of the works in the exhibit) and Christie's Auction House (part sponsor of the exhibition) in trying to inflate the value of Saatchi's personal art collection. The final preparations for the exhibition's opening continue.

September 30, 1999

The City files a suit in New York State Supreme Court to have the museum’s lease revoked. The museum holds a press opening for the exhibit.

October 1, 1999

The City withholds its monthly payment of $497,554 to the museum. When the museum fails to receive its check, it expands the lawsuit. The museum now asks that Giuliani be held personally responsible. The museum accuses Giuliani of violating the Constitution's guarantee of equal protection under the law and of violating the New York State Constitution and the City Charter in refusing to release already appropriated funds. The lawsuit now seeks punitive fees for damages related to the withheld funding. The members opening is held. Nearly 600 people gather outside the museum protesting against the Mayor in a rally sponsored by the New York Civil Liberties Union and People for the American Way.

October 2, 1999

Sensation opens. Protestors organized by the Catholic League sing hymns while the League's president William Donohue hands out vomit bags to those entering the museum. Animal rights activists also gather protesting Hirst's use of dead animals. The museum announces that 9,200 people have pre-purchased tickets to view Sensation.

October 8, 1999

Oral arguments begin in the case Brooklyn Museum of Art vs. The Mayor of New York. Judge Nina Gershon of the United States District Court in Brooklyn presides over the hearing. The museum asks for a permanent injunction against the city to keep them from withholding funds. During the oral arguments the City acknowledges that the Museum hadn’t committed any lease violations regarding children and charging admission. The City also drops its claim of "collusion."

November 1, 1999

Judge Gershon rules that Mayor Giuliani violated the First Amendment when he cut funding to the Brooklyn Museum and threatened to withhold their lease. Issuing a preliminary injunction, the court ordered the Mayor to restore funding and cease its eviction campaign. The ruling also prevents the City from interfering or disrupting the museum’s Board of Trustees or their authority as it relates to the museum. The City says it will appeal, calling the decision, "knee-jerk."

Financing

In its attack on the musuem, the City repeatedly raised the question of how the Sensation exhibition was funded. They claimed that "Sensation" was financed with monies from individuals and companies that stood to profit from the exhibition. These claims were bolstered by a New York Times article on October 31, 1999, which claimed that the museum had raised "hundreds of thousands of dollars" from people who stood to gain from the show. It was reported that because of rising costs to present the exhibit and a failure to secure support from major corporations, Arnold L. Lehman, the Museum’s director, conducted an all-out fundraising campaign this past summer. The City claimed that the practice was unethical. In response to these claims the museum published the funding facts:

• $160,000 was provided by Charles Saatchi toward the exhibit’s expenses
• Christie's contributed $50,000
• David Bowie narrated the exhibit's audio tour free of charge, as a donation to the museum; he also publicized the exhibit on his Web site free of charge
• The museum's gala benefit preview, which drew 1300 people; through ticket sales, the event raised approximately $170,000 toward the exhibition; among the attendees were various collectors and dealers of contemporary art
• The total financial contributions of Saatchi, Christie's, Bowie and the purchase of tickets to the preview by commercial dealers and collectors amounted to approximately 15% of projected expenses for the exhibition
• The majority of income for the exhibition will come from ticket sales

Ruling Excerpts

The following was excerpted from the court documents of United States District Judge Nina Gershon in the case "The Brooklyn Institute of Arts and Sciences v. The City of New York and Rudolph W. Giuliani."

"The museum is suffering and will continue to suffer irreparable harm if an injunction is not granted…The City and the Mayor argue that there is no irreparable injury because the museum has not shown that the withholding of funding prevented it from showing the Sensation exhibit or that the loss of its operating and maintenance subsidy will force the imminent closing of the museum…The museum has already suffered direct and purposeful penalization by the City in response to its exercise of First Amendment rights. First, the City has cut off appropriated funding. Second, the City has sued in state court to evict the Museum from the property which it has occupied for over one hundred years and in which it houses its enormous collection of ancient and modern art. In addition, the facts establish an ongoing effort by the Mayor and the City to coerce the museum into relinquishing its First Amendment rights."

"The City and the Mayor acknowledge that the art being shown at the museum and the ideas which they find that art to express are within the protections of the First and Fourteenth Amendments. Contrary to their assertions, however, although they did not physically remove the art objects from the Museum, they are not insulated from a claim that they are violating the overwhelming body of First Amendment law establishing that government cannot suppress ideas indirectly any more than it can do so directly."

"In a case remarkably similar to this one, Cuban Museum of Arts and Culture, Inc. v. City of Miami…the City of Miami was enjoined from refusing to renew an expired lease with the Cuban Museum because the Court held that the City had violated the museum's First Amendment rights, in that the refusal to renew was motivated by the City's opposition to the museum's exhibit of work of Cuban artists who were either living in Cuba or who had not denounced Fidel Castro. These works were highly offensive to a large segment of the Cuban population of Miami. The Court Found that the exhibition was fully protected by the First Amendment, that the absence of a 'right' to renewal did not defeat the First Amendment claim, and that the claimed lease violations were pretextual."

"The Cases establishing the principle that the government cannot avoid the reach of the First Amendment by acting indirectly rather than directly also illustrate the fallacy in the claim of the Mayor and the City that, while the Exhibit can be shown privately, 'the taxpayers don't have to pay for it.' 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, though tax exemptions and deductions given to other taxpayers. State taxpayers pay the salary for the professor whom the State wants to fire for speaking out against the State college. In sum, where the denial of a benefit, subsidy or contract is motivated by a desire to suppressed speech in violation of the First Amendment, that denial will be enjoined. That is all that is involved here."

"…the notion that government officials can stifle expression in order to protect the public good reverses our most basic principles."

"The Brooklyn Museum contains art from all over the world, from many traditions and many centuries. 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 work 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…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."

Giuliani Excerpts

"You don’t have a right to a government subsidy to desecrate someone else’s religion. Therefore, we will do everything that we can to remove funding from the [museum] until the director comes to his senses and realizes that if you are a government subsidized enterprise then you can’t do things that desecrate the most personal and deeply held views of the people in society . . .I mean, this is an outrageous thing to do. If somebody wants to do that privately and pay for that privately, that’s what the First Amendment is all about. I mean, you can be offended by it and upset by it. But to have the government subsidize something like that is outrageous."

"People have an absolute right to express anything they want to express, but they do not have an absolute right to have that funded by the taxpayers."

"Anything that I can do isn’t art. If I can do it, it’s not art, because I’m not much of an artist. And I could figure out how to put this together. You know, if you want to throw dung at something, I could figure out how to do that."