Civil Liberties Union Urges Mayor to Withdraw Threats to Brooklyn Museum Over Art Controversy

FOR IMMEDIATE RELEASE

NEW YORK — In a letter sent today to City Hall, attorneys for the American Civil Liberties Union and the New York Civil Liberties Union urged Mayor Rudolph W. Giuliani to end his threats to cut off funding to a museum because of his objections to a controversial art exhibition.

At issue is the “Sensation” show due to open Oct. 2 at the Brooklyn Museum of Art, featuring the work of young British artists from the collection of advertising executive Charles Saatchi.

“Your attempt to use control over city funds to force the Brooklyn Museum of Art to cancel an art exhibit is an unconstitutional attempt to censor ideas you personally oppose,” the letter said. “We urge you to withdraw these threats immediately, and to undertake no action to penalize the museum because of your personal objection to the exhibition.”

Just last year, the attorneys noted, the Supreme Court confirmed in NEA v. Finley — a challenge to Congress’ attempts to impose “decency and respect” criteria on the National Endowment for the Arts — that “the First Amendment prohibits the government from discriminating on the basis of viewpoint in providing arts funding.”

“As Mayor of the world’s greatest city for the arts,” the letter concluded, “it is particularly ironic that you are attempting to censor an exhibit that originated in England, the country that provided the model for our Constitution. Despite England’s more conservative approach to free expression, it did not block the “Sensation” show or otherwise penalize the London museum that presented the show, despite the controversial nature of the exhibit.”

The letter was signed by NYCLU executive director Norman Siegel and legal director Arthur Eisenberg, and by Steven R. Shapiro, legal director, and Ann Beeson, staff attorney, both of the national office of the ACLU, headquarted in New York.

Letter from the ACLU and NYCLU
To Mayor Giuliani

September 24, 1999

Mayor Rudolph Giuliani
City Hall
New York, New York

Dear Mayor Giuliani:

Your threats to cut all city funding to the Brooklyn Museum of Art because you disapprove of the upcoming “Sensation” exhibit violate the First Amendment. We urge you to withdraw these threats immediately, and to undertake no action to penalize the museum because of your personal objection to the exhibition.

Your assertion that New York City can withdraw all funds for the Brooklyn Museum based on a single exhibition that city officials find “offensive” illustrates a serious misunderstanding of the Constitution.

This nation boasts a core principle that the government may not act to stifle any point of view. When government actively fosters a marketplace of ideas by providing funding to the arts, it may not excise certain artistic visions simply because public officials dislike them. The First Amendment of the United States Constitution commands that the City remain neutral to the artistic views expressed in its museums – that it not use its control over city funds to cast a pall of orthodoxy over the art selected.

In the spectrum of First Amendment protections, “regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a ‘law . . . abridging the freedom of speech.'” FCC v. League of Women Voters, 468 U.S. 364, 383-84 (1984); see also Perry v. Sinderman, 408 U.S. 493, 597 (1972) (The government “may not deny a benefit . . . on a basis that infringes . . . constitutionally protected interests – especially, his interest in freedom of speech.”); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (It is invalid for the “government [to] adopt[] a regulation of speech because of disagreement with the message it conveys.”).

Just last year, the Supreme Court confirmed that the First Amendment prohibits the government from discriminating on the basis of viewpoint in providing arts funding. The government may not “leverage its power to award subsidies . . . into a penalty on disfavored viewpoints.” NEA v. Finley, 524 U.S. 569 (1998). As the Court explained, “even in the provision of subsidies, the Government may not ai[m] at the suppression of dangerous ideas.” Id. (quoting Regan v. Taxation with Representation of Wash., 461 U.S. 540, 550 (1983)). Your attempt to use control over city funds to force the Brooklyn Museum of Art to cancel an art exhibit is an unconstitutional attempt to censor ideas you personally oppose.

The First Amendment prohibition against viewpoint discrimination is so essential to a functioning democracy that the Supreme Court has noted repeatedly that such discrimination “is presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 51 U.S. 819, 828 (1995). “When the government targets . . . particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Id. at 829. While you have every right to express your personal distaste for some artwork, and have already done so forcefully, your attempt as Mayor to punish the Brooklyn Museum is a classic example of illegal viewpoint discrimination.

Art has historically served to provoke, to question, and to disturb, as well as to inspire and delight. As Mayor of the world’s greatest city for the arts, it is particularly ironic that you are attempting to censor an exhibit that originated in England, the country that provided the model for our Constitution. Despite England’s more conservative approach to free expression, it did not block the “Sensation” show or otherwise penalize the London museum that presented the show, despite the controversial nature of the exhibit.

Sincerely,

Norman Siegel, Executive Director
Arthur Eisenberg, Legal Director
New York Civil Liberties Union

Steven R. Shapiro, Legal Director
Ann Beeson, Staff Attorney
American Civil Liberties Union