The Brooklyn Museum, 1999 and 2001

In two of his most prominent attacks on free expression, NYC Mayor Rudolph Giuliani targeted the Brooklyn Museum of Art.

 

  • In 1999 the mayor attempted to pull city funding from the Museum in response to its "Sensation" exhibit. He found one of the paintings in the show, Chris Ofili's "Holy Virgin Mary"—a multimedia fusion of styles referencing Byzantine mosaics, imagery from popular culture and African sacred symbols—offensive to Catholics. A federal district court judged that Giuliani's attempt violated the First Amendment. The case was settled while appeal was pending.
  • In a reprise of his battle against art approaching traditionally Christian subjects in non-traditional ways, Giuliani responded to the 2001 Brooklyn Museum exhibition "Committed to the Image" showing the work of 94 contemporary Black photographers, by announcing his intention to institute a "decency task force." The work that inspired Giuliani's ire was a staged photograph by Renee Cox entitled "Yo Mama's Last Supper," which used the structure of DaVinci's painting of Christ and the Apostles in his "Last Supper"; instead of Christ, Cox had placed herself naked in the central position. Giuliani's decency task force would presumably monitor the work displayed in New York museums receiving public funding and penalize them whenever indecency is to be detected.

In both cases Giuliani mistakenly relied on the 1998 U.S. Supreme Court decision in NEA v. Finley.

The U.S. Supreme Court on the Decency Standard

 

  • Substance of the decision: In the 1998 Finley decision, the Supreme Court affirmed "general standards of decency and respect for the diverse beliefs and values of the American public" as one criterion (among many) that grant-giving bodies should take into consideration.
  • Political context: The decision came in a context of heated attacks on the NEA, which implied that, were a decency standard not adopted, there would be strong pressures in Congress to abolish the Endowment.
  • Why Giuliani cannot rely on Finley in his intention to form a decency task force: The Supreme Court stated that there would be serious constitutional problems if the decency standard were used to discriminate against works of art based on their religious or political position. The decency standard as it was upheld in 1998 does not preclude or punish the expression of disfavored viewpoints. As a result art that expresses a critique of Catholicism (or any other religion or political position) cannot be suppressed on the basis of the decency standard.

Obscenity/ Indecency/ Offense

Obscenity. The Supreme Court formulated the current definition of obscenity in 1973 in the case of Miller v. California. The obscenity test adopted by Miller has three requirements, all of which are required for material or a performance to be deemed legally obscene: 1. The average person, applying contemporary community standards, would find that taken as a whole it appeals to the prurient interest in sex; 2. It contains patently offensive representations or descriptions of sex acts; 3. Taken as a whole, it lacks serious literary, artistic, political, or scientific value. There exists a long history of changing obscenity tests. In this, the latest definition, there were four vigorously dissenting justices, who did not agree there should be any censorship of offensive ideas.

Decency.

 

  • In a very narrow sense the FCC has defined indecency as "the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs." Regulations restricting indecent speech apply in the broadcast media and public telephone services.
  • The application of the FCC decency standard is justified through the argument that the broadcast media and public telephone services enter every home and are part of the daily life of children. No such argument can be made for art exhibited in museums or galleries. Applying the decency standard to art institutions would imply that adults' cultural consumption should be restricted to what is suitable for children.
  • The sense in which indecency is actually used to attack the arts rarely corresponds to the narrow definition given it by the FCC. As a rule when decency in invoked it is in a vague and subjective way. Giuliani's attacks prove precisely that point: he wants to institute a decency standard to suppress work like Ofili's and Cox's, which expresses a viewpoint Giuliani does not favor. Such subjective uses of the term could potentially make it possible to suppress any work with which the censor disagrees.

Offense. Work like Ofili's and Cox's takes a particular, critical, view of Catholicism. To some the critique may appear pertinent, to others it is disagreeable. Confronted with a forcefully expressed viewpoint that stands in opposition to their deeply held beliefs people often react emotionally by being offended. In accordance with the U.S. Constitution, however, those who disagree are free to express their outrage, but cannot impose their viewpoint on everybody else.

Funding for the Arts

Even though indecent or offensive expression is generally protected by the First Amendment, that, as opponents of government funding for the arts frequently remind us, does not necessarily mean it should be funded.

A very small percentage of taxes goes into support for the arts, and of that the bulk goes to fund educational programs. An international comparison of public expenditure on the Arts and Museums finds the U.S. lagging far behind other developed countries even in 1995, a year before NEA finding was cut by more than a third. (Per capita spending in the U.S. was $6 compared to $26 in the U.K., $46 in Canada, $57 in France, and $85 in Germany). Even so attacks on giving public money for the arts continue claiming that offensive art should not receive taxpayers' money. There are two separate issues here: first, if some public money does go to the arts, should the government have a right to refuse funding to art that offends a certain group and, second, should money be allocated to the arts at all?

Should the government have a right to refuse funding to art that offends a certain group?

 

  • The First Amendment guarantees the freedom to express unpopular (offensive or controversial) opinions without threat to one's body and liberty. If it only covered non-controversial speech the First Amendment would be unnecessary.
  • Government funding of the arts is analogous to funding a public university—there is no expectation that the only ideas taught would be favorable and uncritical of government, or inoffensive to religious beliefs.
  • When legislators start making a distinction between sponsorship and censorship, they forget that freedom of speech is also the availability of that freedom to all classes and members of society. Given that funding is a powerful factor in determining who gets to speak and who doesn't, refusing funding to a particular type of expression based on its offensive content is tantamount to censorship. You can silence people through economic means more efficiently than if you put them in jail. The choice is not between an art that is pleasurable and art that is hateful, but between democracy and totalitarianism.

Should money be allocated to the arts at all?

Opponents of public funding for controversial art recognize the constitutional problems implicit in restricting public funding to art whose point of view is agreeable to them. Consequently they call for the cutting of government funding to the arts in general, which on its face would not raise constitutional problems. Nevertheless, there are a number of reasons why government funding for the arts is necessary:

The majority of Congress and the Senate recognize the importance of the arts for

 

  • education,
  • for attracting cultural tourism,
  • supporting jobs,
  • generating economic activity,
  • for maintaining the image of the United States as a culturally developed country.
  • Even as a "drop in the bucket" compared to private money (as the Heritage foundation asserts) where large established institutions are concerned (The Metropolitan Opera for instance), public money is the lifeblood of fledgling community programs. Major institutions would probably survive without public funds, small local nonprofit organizations and projects involving less economically privileged groups, where the bulk of NEA funding goes, would probably not.

Art, and precisely controversial art, is crucial to the democratic conversation in any society, but even more so in a multicultural country that has to deal with unprecedented technological advance and the ensuing accelerated social transformations. In a word, art helps us make sense of our changing environment and understand the strangers around us: it is a social necessity, not a luxury. Taxpayers are paying to have an open democratic marketplace of ideas, which include ideas they support, but also the ideas of others, which might occasionally be found offensive.

Blasphemy in Art and the First Amendment

As early as 1952 the U.S. Supreme Court held that the constitutional guarantee of free speech and press prevents a state from banning a film on the basis of a censor's conclusion that it is sacrilegious. That has not stopped attacks on art considered to blaspheme from the point of view of a particular religious tradition: some more prominent cases were protests over Month Python's Life of Brian and Scorsese's The Last Temptation of Christ; as well as Giuliani's serial attacks on work displayed in the Brooklyn Museum of Art.

A critique of religious beliefs frequently provokes an extreme emotional reaction of offense or anger. However, there are many ways to express this reaction, which do not entail going against the founding principles of the United States: the separation of church and state and the right to free speech.

Controversial Art

Art is a product of a particular social situation and speaks within that situation. As it is, we live in a country where political and social conflicts are a fact of the present. Art that wants to be relevant to the present we live in cannot but take a position within the conflictual public sphere. Hence it becomes controversial, i.e. takes a debatable position. It brings forth issues that are already there, highlights differences, and argues points. Art gives us as a society the possibility to be open about differences; it provides a safe space to explore conflicts. We need to argue not only about the importance of funding art, but specifically about the importance of funding controversial art, art that challenges, perhaps even offends our prejudices and preconceptions.