First Things First

Round 1 goes to the Brooklyn Museum and the Bill of Rights. A federal judge has sided with the museum in its fight against New York Mayor Rudy Giuliani and his attempt to strip the museum of city funding because of an art exhibit the mayor finds objectionable.

District Judge Nina Gershon, in granting a preliminary injunction against the city preventing Giuliani from denying cash to the museum or moving forward with eviction proceedings, said the city "has acknowledged that its purpose is directly related, not just to the content of the exhibit, but to the particular viewpoints expressed."

She added that "there can be no greater showing of a First Amendment violation."

The ugly flap began in September shortly before the opening of "Sensation: Young British Artists from the Saatchi Collection," an exhibit that features 90 paintings, sculptures, photographs and other "installations" by 40 artists. The museum calls the exhibit "an attempt to define a generation of artists and their diverse artistic visions."

During a news conference, the mayor called the exhibit "sick" and sacrilegious and said taxpayers should not have to fund artwork the majority are likely to find repugnant. In particular, the mayor attacked "The Holy Virgin Mary" by Chris Ofili, an English-born man of African descent. He said the painting -- of a black Virgin Mary decorated with elephant dung (a substance viewed by some African cultures to have magical properties) -- was sacrilegious and anti-Catholic. And he threatened to strip the museum of funding if it went ahead with the exhibit, which opened as scheduled on Oct. 2.

What followed was a series of protests by people on both sides of the issue. The Catholic League of Religious and Civil Rights protested the show's opening, its members handing out "vomit bags" outside the museum and its president calling on the City Council to back the mayor and on Catholic school teachers to boycott the show. The New York Civil Liberties Union and other anti-censorship groups marched against the mayor. Nationally, the U.S. Senate has backed Giuliani, who is planning to run for Senate, while President and Mrs. Clinton (Mrs. Clinton is expected to run against Giuliani) have voiced their support for the museum.

More significant for the First Amendment, however, was the attempt on the part of Mayor Giuliani to withhold about $500,000 in monthly revenue from the museum beginning in October.

"If somebody wants to do that privately and pay for it privately, well, that's what the First Amendment is all about," the mayor said. "But to have government subsidize something like that is outrageous."

In addition, the mayor moved to evict the museum from a building it has called home for 100 years on the grounds that its lease calls for it to educate school children and the general public. City Attorney Michael Hess, at a recent law school speech (according to the Associated Press), said the mayor concluded that "there were pictures in the exhibit that were not only inappropriate for children -- but were not appropriate for the city to be funding."

But Judge Gershon cut through the city's arguments, classifying the city's actions as a "direct and purposeful penalization -- in response to (the museum's) exercise of First Amendment rights."

Essentially, the mayor was punishing the museum and the artists who were exhibiting work for the manner in which they expressed themselves, an obvious breech of the First Amendment. The mayor was disturbed and offended. But First Amendment grants artists the right to produce work that disturbs and offends. As the judge pointed out: "There is no federal constitutional issue more grave than the effort by government officials to censor works of expression and to threaten the vitality of a major cultural institution as punishment for failing to abide by governmental orthodoxy."

Not only did Giuliani's actions limit the speech of the museum and its exhibitors, it also violated the "establishment clause" -- by censoring the museum to protect a particular faith. A coalition of groups, including Volunteer Lawyers for the Arts and the New York City Arts Coalition, believes Giuliani and his administration took it upon themselves to "protect the public from a religious viewpoint -- in essence, by 'establishing' a religion as an entity entitled to special government protection.," according to Jeremy Leaming of the First Amendment Center (Freedom Forum Online).

"The administration repeatedly has stated that its central objection to the exhibit is Mr. Ofili's portrayal of the Virgin Mary," coalition lawyer Marci Hamilton, a constitutional law scholar at Emory University, wrote in its friend-of-the-court brief (according to Leaming). "It has employed aggressive tactics to shut down the 'Sensation' exhibit in order to purify the public square of viewpoints that may be offensive to certain mainstream religious sensibilities. But for its perception of an offense given to the Catholic Church, the city administration might have had no objection to the exhibit at all."

This issue is not likely to die -- Giuliani has promised to appeal (and may have by the time this column is published) and the Brooklyn Museum can look forward to a fight to save its funding during the next round of budget talks. It is clear that there are other issues that the city and the museum must iron out, including whether the manner in which it solicited private funds was appropriate. But, as the New York Times pointed out after Judge Gershon ruled: "those questions should not obscure the importance of the fundamental constitutional issue that the court has now ruled upon." The museum's funding practices do not justify an attempt to override its First Amendment rights to choose the art it will display without political interference."

Hank Kalet of South Brunswick, N.J., is a poet and newspaper editor.

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