NYC Mayor's Proposed Museum "Decency Panel" is Misguided and Unconstitutional, ACLU Says

Affiliate: ACLU of New York
February 16, 2001 12:00 am

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NEW YORK–Mayor Giuliani has once again cast himself as the City’s chief censor by proposing a decency panel in response to his latest dispute with the Brooklyn Museum over its selection of art.

This time, the Mayor objects to a photograph depicting the Last Supper in which the Christ figure is portrayed as a nude black woman. Apparently without having ever seen the photo in its museum context, the Mayor had no trouble describing it as “outrageous” and “anti-Catholic.”

The Mayor’s reaction and his terminology are familiar, of course. Two years ago, the Mayor used similar language to justify his ill-fated effort to effectively shut down the Brooklyn Museum — by withdrawing all City funding and terminating its lease — because the Mayor was offended by what he regarded as certain sacrilegious images in the controversial “Sensations” exhibition.

That effort was quickly and decisively declared unconstitutional by a federal court in New York, which reminded the Mayor that his executive powers did not include the authority to overrule the First Amendment, or to impose his personal tastes on New York City’s museum visitors.

The notion of a decency panel is equally misguided and equally unconstitutional, especially when its unambiguous purpose is to impose an official orthodoxy on New York’s cultural institutions. In floating the idea, the Mayor suggested that the concept had been endorsed by the United States Supreme Court in a 1998 case brought by Karen Finley and several other artists against the National Endowment of the Arts.

He is wrong on multiple counts. While it is true that the NEA’s decency standards were upheld in the Finley case, the Court’s decision contained two important caveats. First, the Court noted that the decency standards were never intended to be a litmus test for government funding; instead, they were merely one consideration among many that the government could take into account in deciding whether to award a grant.

Second, the Court clearly indicated in the Finley case that the government could not use the decency standards as an excuse to withhold funding because it disagreed with the views expressed by a particular artist or a particular work of art. Whether accurate or not, describing a work as “anti-Catholic” is precisely the sort of ideological judgment that cannot be the basis for funding decisions under the Finley case.

Finally, although the Mayor’s proposal for a decency panel was short on details, there is every reason to believe based on the past record that his ultimate goal is to deny all public funding to any museum that displays “indecent” art, even if the art in question is not actually supported by public funds. The constitutional rule prohibiting such retaliation was well-established long before the Finley case ever reached the Supreme Court.

In 1984, for example, the Supreme Court held that public broadcasting stations could not be penalized with the loss of public funds because they engaged in political editorializing with private money. More generally, the Supreme Court has repeatedly recognized that the First Amendment imposes the most severe limits on the government’s ability to interfere with institutions that are dedicated to free speech, like museums and universities.

The Mayor is too good a lawyer not to know all of this, and not to know that the Constitution draws a sharp dividing line between matters of private faith and matters of public policy.

Mayor Giuliani is plainly free to use his bully pulpit to preach in favor of racial and religious tolerance. Indeed, the City might have been a very different place if he had used that pulpit more often during the past seven years. What he may not do is abandon the pulpit and just act like a bully, leaving the First Amendment as a casualty in his wake.

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