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©Copyright 2005 NCAC
WEB DESIGN
Jeanne Criscola Criscola Design
free speech first amendment censorship
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The
Mayor of New York took offense to several works
displayed in the “SENSATION” exhibit
at the Brooklyn Museum. In particular, Giuliani
felt Chris Ofili’s “The Holy Virgin
Mary”, a painting incorporating elephant
dung, desecrated religion. In response, the City
attempted to withhold funds already designated
for the general operation of the museum, and sought
to eject the Museum from the City-owned land on
which it had stood for over one hundred years.
The court granted the Museum’s request for
a preliminary
injunction, prohibiting the Mayor or the City
from punishing or retaliating against the Museum
for displaying the exhibit. The court granted
the injunction due to its finding that the museum
was and would continue to suffer irreparable
harm if an injunction was not granted.
The court also based its ruling on the finding
that the Museum was likely to prevail on its First
Amendment claim at a full-blown trial. This was
because:
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The
government cannot suppress works said to be
“offensive, sacrilegious, morally improper
or dangerous”, even in indirect ways.
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The
government may selectively fund projects promoting
a particular viewpoint on a matter of public
concern without, as a result, being required
to give equal time to an opposing view. |
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The
government is not required to grant a general
benefit or subsidy, BUT upon allocating such
a grant it cannot punish or retaliate against
a particular Museum because of the perceived
viewpoint of the works in an exhibit by rescinding
that subsidy. |
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Finley
does NOT stand for the proposition that viewpoint
discrimination in arts funding is permissible,
but rather that “decency” and
respect for diverse beliefs and values are
suitable factors to take into consideration.
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Just
as the government does not violate the Establishment
Clause of the Constitution (which requires
the separation of church and state) by funding
museums that house religious paintings, it
does not endorse anti-religious views by funding
museums that house arguably sacrilegious paintings;
any objective
observer would not believe the City or
the Mayor endorsed Mr. Ofili’s views.
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materials are not intended, and should not be used, as
legal advice. They necessarily contain generalizations
that are not applicable in all jurisdictions or circumstances.
Moreover, court decisions may be superceded by subsequent
rulings, and may be subject to alternative interpretations.
Corrections, clarification, and additions are welcome.
Please send to ncac@ncac.org. |
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