Alessandro G. Olivieri, General Counsel
NYC Department of Parks & Recreation
The Arsenal, Central Park
830 Fifth Avenue
New York, NY 10021
Re: Notice of Proposed Rule, Title 58, Ch. 2, §2-16
Dear Mr. Olivieri:
On behalf of the National Coalition Against Censorship, an alliance of 50 national non-profit organizations united in defense of free expression, and the College Art Association, the largest national association of college and university art and art history professors, we are writing to express concern about the proposed new rules governing New York City’s Public Art Program, specifically the proposed ban on art that "demonstrates a lack of proper respect for public morals or conduct or that includes material that is religious, political or sexual in nature…." In our view, the proposed rule is constitutionally suspect and unsound as a matter of policy, and will inevitably invite litigation and generate more controversy than it will avoid.
As organizations that follow and address censorship-related complaints from around the country on a daily basis, we can attest to the fact that almost any work of art can be construed as being "religious, political or sexual in nature." We have recorded numerous complaints against highly regarded, often classical, works of art, couched in just such language. Under this standard, New York would have been deprived of a large number of the public art works that have contributed to the vibrant culture of the city.
The vague language of the new rule creates the potential for arbitrary decision-making as to what might be political, sexual or religious. For instance, the Maine Monument in Columbus Circle contains partial nudity that some consider sexual or "inappropriate";. the Freedom of Expression National Monument recently re-installed in Foley Square can be seen as political in nature; Tom Otterness’ whimsical public sculptures frequently provide socio-economic commentary. Even if such works are approved, the proposed rule would expose the Department to complaints and to requests to remove art that some view as incompatible with its guidelines.
Besides the practical problems it poses, the vague and overbroad language of the proposed rule raises a host of constitutional concerns. Squares, streets, and parks are arenas which the Supreme Court has called "quintessential public forums" that are "used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." In such places, where the nation’s commitment to the First Amendment is revealed in practice, the Court has declared that "the rights of the State to limit expressive activity are sharply circumscribed." Perry Education Assn. v. Perry Local Educators’ Assn, 460 U.S. 37, 45 (1983).
The department’s proposed rule extends far beyond what the Supreme Court approved in Finley v. National Endowment for the Arts, 524 U.S. 569 (1998). In that case, the Court upheld NEA’s consideration of "general standards of decency and respect for the diverse beliefs and values of the American public" as one criterion (among many) in making grants for the arts. Finley’s holding is limited to government funding for the arts, and nowhere does the decision authorize the exclusion of entire categories of expression. Indeed, the Court expressly rejected the notion that government can "leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints….[E]ven in the provision of subsidies, the Government may not ‘ai[m] at the suppression of dangerous ideas.’" Id. At 587.
It is not our position that the City is precluded from establishing guidelines for the public display of art. What we object to is the clear indication in this proposal that the Parks Department intends to limit public art to that which is purely decorative and deemed "appropriate" for young children. Public art is a crucial part of civic discourse; the limits proposed would impoverish the cultural and intellectual vibrancy of New York’s public spaces.
Surely, a city that is home to world-class cultural institutions and is a major capital of the art world would be an object of ridicule if this rule were implemented. And rightly so. Consider the kinds of works that would be off limits: Michelangelo’s David and Pieta, Rodin’s The Kiss, works by Diego Rivera and Picasso and by such contemporary artists like Maya Lin, Hans Haacke, William Kentridge, and Barbara Kruger. We would be happy to work with your office, as we have with other communities around the country, to help craft a policy that would respect constitutional principles, provide clear guidance to artists and city officials, and strive to make the City a place filled with "accessible" and "appropriate" art. Please let us know how we can be of assistance.
Joan E. Bertin
National Coalition Against Censorship
College Art Association