Letter From NCAC and FAP To Marin Civic Center In Response To Art Censorship

From:
Svetlana Mintcheva
Director of Programs
National Coalition Against Censorship

David Greene
Executive Director/ Staff Counsel
The First Amendment Project

To:
Mona Miyasato  
Chief Assistant
Marin County Administrator  
 

April 14, 2011
 
Dear Ms. Miyasato:
 
As organizations dedicated to promoting the First Amendment right to free speech, including freedom of artistic expression, we are deeply concerned about the removal of Sylvia Cossich Goodman’s work from the annual Marin Arts Council member show at the County Civic Center. Your decision, as a government employee, to remove an artwork from an exhibition held at a public space raises serious First Amendment concerns. We urge the Civic Center to immediately put the work back on display and, in the future, draft exhibition policies that are consistent with First Amendment principles.
 
It is our understanding that you removed Ms. Goodman’s work from the exhibition in response to a complaint by an employee, who claimed the image of a nude created a “hostile work environment.” By no means does the simple inclusion of an image of a nude figure in a contemporary arts exhibition constitute a “hostile work environment.” A single painting is not and cannot be construed to be the type of repeated and systematic behavior that defines sexual harassment. Employees who dislike specific pieces in an art show must be made aware that the Civic Center is governed by the free speech clause in the First Amendment once it has been opened to exhibit work. That means the selection of art in the gallery should be based on viewpoint-neutral criteria.  The removal of a work has, led in this case, to the impermissible imposition of an individual’s viewpoint on the whole community and is likely to be found in violation of First Amendment principles.
 
In removing the work you are not only violating the free speech rights of the artist, but you are also exposing the county to legal liability. In a similar case decided in 1997, the City of Murfreesboro, TN removed a painting of a nude from the Rotunda of City Hall after receiving a complaint that the display of the painting constituted sexual harassment.

In response to the legal case filed by the artist (Henderson v. City of Murfreesboro 960 F. Supp. 1292 (M.D. Tenn. 1997)), the court agreed that the removal of the painting violated her First Amendment rights: “… the defendant’s arbitrary decision to remove the painting of the plaintiff was guided by nothing other than the subjective perceptions of municipal officials. In this context, such an action banning protected expression based on a standardless discretion cannot be upheld as constitutional.”
 
As the Supreme Court has noted multiple times, “`nudity alone’ does not place otherwise protected material outside the mantle of the First Amendment.” (Schad v. Mount Ephraim (1981), Jenkins v. Georgia (1974), Osborne v. Ohio (1990)) Nor is the presence of children a basis for refusing to exhibit art work: “‘[R]egardless of the strength of the government’s interest’ in protecting children, ‘[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.’” (Ashcroft v. ACLU (2002), and cases cited therein)
 
Our courts have time and again reaffirmed that the First Amendment prohibits public officials from censoring art they find offensive or provocative. Hopper v. City of Pasco (2001) in the Ninth Circuit Court of Appeals is a case in point. There, the plaintiff artists were invited to display their work at the City Hall, and were then precluded from doing so because the work provoked controversy and public officials considered it “sexually suggestive.” The Court noted that Pasco, by opening its display space to expressive activity has evinced “an intent to create a designated public forum.” In such a forum, the court concluded, the content based removal of work would only be justifiable if there is a “compelling state interest and is narrowly drawn to achieve that end.”
 
Your arbitrary and subjectively determined decision to exclude Ms. Goodman’s painting from public view fulfills no compelling (or even rational) state interest.  No one is well served by this violation of expressive freedom, certainly not the Marin County public, which is illegitimately deprived of the opportunity to view and evaluate artistic work for itself.
 
We urge you to reconsider your decision and restore the work to the exhibition as soon as possible. Please let us know if you would like to discuss this matter further.
 
 
 
Sincerely,

 
The National Coalition Against Censorship (NCAC) is an alliance of more than 50 national non-profit organizations, including literary, artistic, religious, educational, professional, labor, and civil liberties groups. NCAC’s mission is to promote freedom of thought, inquiry and expression and oppose censorship in all its forms.
 
The First Amendment Project is a nonprofit organization providing free and low-cost legal services on public interest free speech and free press matters. FAP provides these services to its core constituency of activists, journalists and artists who seek to vindicate important First Amendment rights, but do not have the financial resources to hire private counsel. FAP represents these clients by defending them when they are sued for what they say or write, by contesting governmental non-compliance with open records and meetings laws and in challenging laws, practices and policies that infringe on First Amendment rights. FAP is the only nonprofit organization in the country dedicated to providing free legal representation exclusively on free speech and free press issues.