Issue 81, Spring 2001

Rudy Giuliani may not be the nation’s most visible opponent of First Amendment rights, but not for want of trying. Fresh from losing a bout with the Brooklyn Museum of Art over Ofili’s

The Holy Virgin Mary

in the


exhibit, he’s now proposing a “decency” commission in response to another image he considers “anti-Catholic” in a show of work by black photographers at the same museum. The subject is a series of photographs by Renee Cox, entitled

Yo Mama’s Last Supper

, in which a self-portrait of the naked female artist replaces Jesus. The work had been shown at the Aldrich Museum of Contemporary Art in Connecticut and in a Catholic church in Venice, Italy without arousing a peep. But it served as a catalyst for the Mayor’s “outrage” and threats to take on the First Amendment yet again to penalize expression he doesn’t like.

Giuliani dangled the 1998 Supreme Court decision in NEA v. Finley as supporting his contention that “decency” standards can be imposed on government-funded art. But, in fact, the Finley decision—upholding the requirement that the NEA take “into consideration general standards of decency and respect for the diverse beliefs and values of the American public”—does not allow viewpoint discrimination. The Court noted that serious constitutional problems would arise if the decency standard were used to discriminate against works of art because of hostility to their religious or political message.

The First Amendment rights of publicly-funded art institutions may now be even stronger, as a result of a recent Supreme Court decision invalidating speech restrictions limiting the arguments lawyers in federally-funded legal services programs could make on behalf of indigent clients. In a 5-4 decision in Legal Services Corp. v. Velazquez, Justice Anthony M. Kennedy wrote for the majority that the difference between government-subsidized speech that the government may legitimately control, as opposed to subsidized speech that it may not suppress even if it disagrees with the message, is whether the message can plausibly be attributed to the government itself. Since the lawyers were not speaking on behalf of the government, but as advocates for clients, the restrictions violated the First Amendment. The same rationale would seem to apply with even greater force to the creative and expressive activities contained in art museums.

This decision is not likely to deter Giuliani (who has already spent untold taxpayer dollars in his crusade against art he doesn’t like) from establishing his commission—if he can find anyone to serve on the panel. It might be interesting to see how its members define what is “decent” in art.