Brooklyn Museum Wins Round Against Mayor - New York City Mayor Rudolph Giuliani loses court case - Brief Article

On Nov. 1, the U.S. District Court in Brooklyn ruled that Mayor Rudolph Giuliani violated the First Amendment rights of the Brooklyn Museum of Art when he cut city funding because he found some of the works on view in "Sensation: Young British Artists from the Saatchi Collection" offensive, particularly Chris Ofili's The Holy Virgin Mary [see "Front Page," Nov. '99]. As we go to press, the story is rapidly unfolding. In her 38-page decision granting a preliminary injunction, Judge Nina Gershon ordered the mayor and the city to restore funding to the museum and to cease attempts to evict it from its city-owned building or to interfere in any manner with the museum's board. In spite of the ruling, thE; city withheld the museum's November payment, as it did October's. The judge rejected the city's request to put the monthly payments (which average $500,000) into an escrow account while it appeals the injunction. She ordered the city to immediately pay the museum.

The city had attempted to have the museum's federal case dismissed, asserting that the First Amendment issue could be determined by the New York state court that will hear its lease-violation case against the museum. Gershon denied the city's request for a dismissal, stating that Giuliani's lease allegations are "purely pretextual." She added: "There is no federal constitutional issue more grave than the effort by government officials to censor works of expression and to threaten the vitality of a major cultural institution, as punishment for failing to abide by governmental demands for orthodoxy."

Giuliani, never one to admit defeat, said, "the judge is totally out of control ... she's lost all reason." He immediately accused Gershon of rushing her decision in order to prevent the city, which is claiming that museum officials concealed documents, from investigating the funding of "Sensation." The city is now focusing on the ethics of a public institution soliciting funds from those with a commercial interest in promoting the exhibition, including Charles Saatchi (who contributed $160,000 toward the $2-million cost of the show), the auction house Christie's (which provided $50,000 and has handled sales of Saatchi-owned works in the past), various dealers whose artists are included in the exhibition, and David Bowie (who donated $75,000 and whose Web site is the exhibition's only on-line venue, although there is no merchandise there directly related to the show). Gershon wrote that since concern over the museum's exhibition financing practices was only raised by the city on Sept. 29, after the museum had already filed its suit, the city's action in state court was therefore "conceived and initiated ... to pressure the museum" and that it is "part of an ongoing effort to retaliate against and deter [the museum's] exercise of First Amendment rights." In response to Giuliani's attack on Gershon, the Association of Trial Lawyers of America issued a statement saying that "it has become a disturbing trend that a few public officials and candidates try to make political points by unfairly attacking the judiciary and the fair administration of justice."

Gershon issued the injunction based on her findings that the museum has already suffered irreparable harm and would likely succeed in its First Amendment case, which is still pending as we go to press. The decision also made it clear that the city was not asked to fund "Sensation" and that city money is not used for museum programming but for building maintenance, employee salaries, energy costs, etc. With regard to the city's claim that the works on view are sacrilegious and that the museum is therefore endorsing an anti-Catholic view, Gershon noted that hundreds of works in the museum venerate the Virgin Mary and other religious figures. She said that it is actually the actions of the mayor and the city that have threatened the neutrality required of government in the sphere of religion.

Whatever the end result of this case may be, museums will be forced to seriously reconsider how they raise money. With cutbacks in public funding, many hoped that corporate and individual sponsors would make up the difference. The ethical dilemmas posed here, however, prove that the already difficult task of fund-raising is becoming an increasingly tricky proposition.

COPYRIGHT 1999 Brant Publications, Inc.
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