Letter from the ACLU and NYCLU over “Sensation” Exhibit at Brooklyn Museum

September 24, 1999 Mayor Rudolph Giuliani City Hall New York, New York Dear Mayor Giuliani: Your threats to cut all city funding to the Brooklyn Museum of Art because you disapprove of the upcoming “Sensation” exhibit violate the First Amendment. We urge you to withdraw these threats immediately, and to undertake no action to penalize the museum because of your personal objection to the exhibition. Your assertion that New York City can withdraw all funds for the Brooklyn Museum based on a single exhibition that city officials find “offensive” illustrates a serious misunderstanding of the Constitution. This nation boasts a core principle that the government may not act to stifle any point of view. When government actively fosters a marketplace of ideas by providing funding to the arts, it may not excise certain artistic visions simply because public officials dislike them. The First Amendment of the United States Constitution commands that the City remain neutral to the artistic views expressed in its museums ­ that it not use its control over city funds to cast a pall of orthodoxy over the art selected. In the spectrum of First Amendment protections, “regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a ‘law . . . abridging the freedom of speech.'” FCC v. League of Women Voters, 468 U.S. 364, 383-84 (1984); see also Perry v. Sinderman, 408 U.S. 493, 597 (1972) (The government “may not deny a benefit . . . on a basis that infringes . . . constitutionally protected interests – especially, his interest in freedom of speech.”); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (It is invalid for the “government [to] adopt[] a regulation of speech because of disagreement with the message it conveys.”). Just last year, the Supreme Court confirmed that the First Amendment prohibits the government from discriminating on the basis of viewpoint in providing arts funding. The government may not “leverage its power to award subsidies . . . into a penalty on disfavored viewpoints.” NEA v. Finley, 524 U.S. 569 (1998). As the Court explained, “even in the provision of subsidies, the Government may not ai[m] at the suppression of dangerous ideas.” Id. (quoting Regan v. Taxation with Representation of Wash., 461 U.S. 540, 550 (1983)). Your attempt to use control over city funds to force the Brooklyn Museum of Art to cancel an art exhibit is an unconstitutional attempt to censor ideas you personally oppose. The First Amendment prohibition against viewpoint discrimination is so essential to a functioning democracy that the Supreme Court has noted repeatedly that such discrimination “is presumed to be unconstitutional.” Rosenberger v. Rector & Visitors of Univ. of Va., 51 U.S. 819, 828 (1995). “When the government targets . . . particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.” Id. at 829. While you have every right to express your personal distaste for some artwork, and have already done so forcefully, your attempt as Mayor to punish the Brooklyn Museum is a classic example of illegal viewpoint discrimination. Art has historically served to provoke, to question, and to disturb, as well as to inspire and delight. As Mayor of the world’s greatest city for the arts, it is particularly ironic that you are attempting to censor an exhibit that originated in England, the country that provided the model for our Constitution. Despite England’s more conservative approach to free expression, it did not block the “Sensation” show or otherwise penalize the London museum that presented the show, despite the controversial nature of the exhibit. Sincerely, Norman Siegel, Executive Director Arthur Eisenberg, Legal Director New York Civil Liberties Union Steven R. Shapiro, Legal Director Ann Beeson, Staff Attorney American Civil Liberties Union