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Volume 20, Number 2/3, Summer 2000
LESSONS FROM THE BROOKLYN MUSEUM CONTROVERSY
by
Peter Levine
How many art exhibitions are accompanied by a "Health Warning"? Visitors to the Brooklyn
Museum's recent "Sensation" show were told: "The contents of this exhibition may cause shock,
vomiting, confusion, panic, euphoria, and anxiety. If you suffer from high blood pressure, a
nervous disorder, or palpitations, you should consult your doctor before viewing this
exhibition."
Those brave (and hip) enough to enter were exposed to paintings, sculptures, videos, and
installations by a group called The Young British Artists. The works that had the best chance of
causing shock and vomiting included Marcus Harvey's portrait of the child-killer Myra Hindley,
painted with real children's handprints; Damien Hirst's "A Thousand Years," composed of a
decaying cow's head with live flies and maggots; and Chris Ofili's "Holy Virgin Mary," which
incorporates elephant dung and photographs of genitalia.
As the predictable uproar about the exhibition erupted, New York Mayor Rudolph Giuliani tried to
slash the Museum's funding. He claimed that the decision not to admit unaccompanied children to
"Sensation" put the Museum in violation of its city lease and subjected it to eviction. He also
argued that the government may not finance blasphemous art, because to do so breaches the
separation of church and state.
These arguments were rejected in federal court; the city was compelled to refund the money it
had withheld. The Mayor did score points, however, by alleging (with some plausibility) that
"Sensation" was a "scam": a conspiracy involving Christie's auction house, the Brooklyn
Museum, and the owner of the art, Charles Saatchi, to raise the market value of his collection.
Meanwhile, the Mayor's opponents accused him of using a cultural controversy to score points
with conservative voters as he prepared to compete with Hillary Clinton for New York's open
Senate seat.
Behind all the ritualistic name-calling and litigation was a serious issue: the relationship
between art and democracy. This relationship has been troubled and unproductive for several
decades. I think that politicians and artists must share the blame.
Imagine that we were debating welfare reform or zoning instead of elephant dung on "The Holy
Virgin Mary." In these more ordinary cases, we would want elected officials to supervise
decisions that involved public money, but we would expect them to act only after reasonable
public deliberation. We would ask everyone involved to heed multiple perspectives, respect facts,
achieve as much common ground as possible, and examine arguments rather than assault their
opponents' characters.
This is the deliberative approach to democratic politics. I will argue that artists and politicians
ought to behave more deliberatively than they have in their recent skirmishes. But deliberation
is only relevant if arts policy belongs within the normal give-and-take of politics. Both sides in
the Brooklyn Museum controversy claimed--in contrast--that a high constitutional principle
settled the question of arts funding. If they were right, then neither the public nor elected
officials had any business deliberating about particular works of art or about arts policy in
general.
Charges of "Censorship"
One group, civil libertarians, detected unconstitutional censorship in New York City's treatment
of the Brooklyn Museum. According to the American Civil Liberties Union, the Museum was an
institution "devoted to discourse and expression." Once the government had decided to fund such an
institution, it could not use its money to influence decisions about what images were exhibited.
According to the ACLU:
Just as academic judgments are left to the academics, curatorial judgments must
be left to the curators. Just as a state cannot use its funding authority to
micro-manage the content of a professor's lectures, the First Amendment also
bars Mayor Giuliani from using City funding to dictate the content of a curated
art exhibition.
In its brief, the ACLU explicitly charged the Mayor with censorship. Some people have gone
further and seen a reduction in the overall level of government support for the arts as "a de facto
form of censorship."
U.S. District Judge Nina Gershon resolved the case in the Museum's favor but on narrower
grounds, concluding that:
The issue is not whether the City could have been required to provide funding for
the Sensations exhibit, but whether the Museum, having been allocated a general
operating subsidy, can now be penalized with the loss of that subsidy, and
ejectment from a City-owned building, because of the perceived viewpoint of the
works in that exhibit. The answer to that question is no.
With this ruling, civil libertarians won a battle in the war over arts policy. But the Constitution
cannot compel governments to subsidize art in the first place. When the Supreme Court ruled in
1998 that individual artists may not be denied federal grants because of the content of their
work, Congress simply canceled all support for individual artists. If democratic leaders are given
the choice either to fund everything that curators call "art," or to support no exhibitions at all,
many will choose the latter option. In New York City, museums are powerful and will probably
continue to receive tax money no matter what the Mayor thinks. (However, some observers fear
that he will punish the particular institutions that sued him.) In other communities where the
arts have far less political clout, complete denial of funding is a likely response to adverse court
rulings.
I am not arguing that courts should never strike down state arts policies that violate the First
Amendment. For example, the City of New York probably acted unconstitutionally when it made an
unrestricted grant to a museum and then withdrew the money ex post facto because of the content
of the exhibited art. How much flexibility the government enjoys under the First Amendment is
a matter of ongoing legal controversy. But regardless of the proper answer to this question,
broader issues remain that will never be settled in court, because only the public has the right to
decide them. Do the arts need and deserve public subsidies? If so, what are the best priorities for
our arts budget? For instance, should more money go to museums, schools, or artists? Should the
public fund amateurs, students, or professionals? Should we subsidize big-city artists, or
regional institutions? Should we exhibit contemporary works, or Old Masters? Should our arts
budget promote video installations, or novels, or public monuments?
These matters should not and will not be settled by judges. Before the larger jury of public
opinion, the avant-garde may have a difficult case to make, but it cannot hide behind charges of
"censorship." Arts programs and subsidies are never entirely different from appropriations for
schools or homeless shelters; inevitably, they are matters to be settled by some combination of
majority rule, horse-trading, delegation to professional experts, and (if we're lucky)
constructive public deliberation.
Sinful and Tyrannical Subsidies?
In court, Mayor Giuliani argued just the reverse of the civil libertarian position. Whereas the
Museum's lawyers wanted to prevent elected officials from refusing to fund controversial art
under almost any circumstances, the Mayor claimed that the state may never support such
expression. It is always wrong, he said, to use public money to finance "vicious attacks on
religion."
But if the state must be neutral about matters of faith, then it cannot discriminate against
irreligious expression. (This has been the Supreme Court's view since a 1952 case, Joseph
Burstyn, Inc. v Wilson.) Perhaps the Mayor's real position was that public funds should never
support anything that causes very deep offense to some. "If you are a government subsidized
enterprise," he said, "then you can't do things that desecrate the most deeply held and personal
views of the people in society." In the preamble to the Virginia Bill for Establishing Religious
Freedom, Thomas Jefferson wrote, "to compel a man to furnish contributions of money for the
propagation of opinions which he disbelieves and abhors, is sinful and tyrannical."
Although this "Jeffersonian Principle" is not explicit in the US Constitution, it is often invoked
in First Amendment cases. For example, some people argue that it precludes unions from
lobbying the government with their members' dues, student governments from using mandatory
activity fees for controversial purposes, and Congress from funding political campaigns with tax
money.
The Jeffersonian Principle has something going for it. The fact that some citizens "abhor" the
Confederate flag seems a sufficient reason not to fly it over a statehouse, because doing so
expresses official disrespect for their views. However, if we apply the Jeffersonian Principle
literally and comprehensively, there can be no democracy. As the Supreme Court noted in 1984,
"virtually every congressional appropriation will to some extent involve a use of public money ...
to which some taxpayers may object." This applies to state acts of expression as well as to other
governmental activities.
For instance, the Secretary of State's latest pronouncements on Africa may enrage me, yet I have
helped to pay her salary. Every day, public school teachers propound before tender ears ideas
that would make some of us cringe. For that matter, think of the portraits in City Hall's Blue
Room, where the Mayor meets the press. They show an array of dead white males, including
Jefferson (who owned slaves) and Edward Livingston (who served as an antebellum Louisiana
senator after leaving New York in a hurry). I happen to think that Jefferson's portrait is a
worthy symbol, but not everyone would agree. As Hugh Field, a freshman at Pratt Institute, told
The New York Times, "I find the Mayor offensive, but that doesn't mean I'm going to stop paying
my taxes."
It seems to me that citizens and elected officials ought to pay some attention to the Jeffersonian
Principle and try to avoid decisions that will offend people's deepest convictions. But sometimes
offense should be given--either because those who take umbrage are morally wrong, or because
discord is the price we must pay for having a robust, diverse, and equitable public debate. Mayor
Giuliani claimed that the offense taken by some Catholics automatically made "Sensation" an
inappropriate use of tax money. He thereby sought to end (or circumvent) the public debate about
the particular works exhibited at the Brooklyn Museum--just as civil libertarians hoped to evade
the debate by charging "censorship" in federal court.
A More Constructive Approach
Let's assume, instead, that democratic institutions may and will decide whether to fund art. It
would be useful for the public and elected leaders to deliberate, rather than leave the results to
brute majority rule or logrolling. In deliberation, a wide range of relevant considerations can be
aired, stereotypes and hasty judgments can be debunked, and satisfactory compromises can be
devised . In debates about arts policy, deliberation has a further advantage. Whether the state
chooses to fund controversial art or to shun it, some are offended by what the government seems
to be expressing on their behalf and with their money. It is a consolation to be able to articulate
the contrary view during a public debate.
In Democracy and Disagreement, Amy Gutmann and Dennis Thompson set high (and perhaps
unrealistic) standards for "deliberation." Every argument must appeal to reasons or principles
that could be accepted by other people who are also deliberating. Every empirical claim must be
testable by reliable, non-private methods. All reasons and arguments must be offered in public.
All participants (including ordinary citizens) owe explanations to everyone else whom their
decisions may affect. As they deliberate, they are supposed to be open-minded, to acknowledge
that their opponents' positions are also motivated by moral beliefs, and to explain their views in
terms that minimize their disapproval of others.
By the Gutmann-and-Thompson standard, the public debate about "Sensation" was not
deliberative. Many in the Art World (a loose network of established artists, agents, curators,
critics, and patrons) attacked Mayor Giuliani's allegedly selfish motivations. But even if his only
goal was to gain votes, his position could still be correct, his judgment sound. The lowest personal
insult was delivered by Glenn Scott Wright, Chris Ofili's London agent. Wright told The
Washington Post that Mayor Giuliani's behavior "is both totalitarian and fascist, a reprisal of
the Nazi regime's censorship." This kind of remark makes a decaying cow's head look like a subtle
and perceptive statement.
A half dozen editorials implied that it was a mistake for the public to deliberate about whether to
support contemporary art. Even the most offensive works might later turn out to be great--
weren't Shakespeare and Joyce controversial in their times? According to these observers, the
public was not entitled to make the critical judgment that some work is bad.
The controversial art itself had an in-your-face, shock-the-bourgeoisie attitude; it was not
calculated to persuade people on the other side of a cultural debate. Ofili told The New York
Times: "I don't feel as though I have to defend [my work].You never know what's going to offend
people, and I don't feel it's my place to say any more." Maybe it's not a painter's job to justify
his art in words. But if the Brooklyn curators had expected their show to provoke careful thought
and dialogue, then they wouldn't have boasted that the "contents of this exhibition may cause
shock, vomiting, confusion." Still, the art in "Sensation" can be defended. The New York Times
critic Michael Kimmelman praised Ofili's "lightness of spirit." In the Nation, Arthur Danto
argued that the elephant dung on the Virgin couldn't be derogatory, because Ofili (who was born
in Nigeria) used the same material in Afrobluff, an image of African slaves. This is the kind of
relevant fact that surfaces when people deliberate.
Indeed, Danto's review of "Sensation" was packed with arguments that could persuade
open-minded readers to support the show. For instance, against those who claim that any fool can
submerge a shark in formaldehyde, Danto insisted:
But imagining doing it requires a degree of artistic intuition of a very rare
order, since one would have to anticipate what it would look like and what effect
it would have on the viewer. The work in fact has the power, sobriety and
majesty of a cathedral, some of which, of course, must be credited to the shark
itself.
Deliberation and the Avant-Garde
Danto's review exemplifies deliberation; but how deliberative must critics, artists, curators,
patrons, and agents be? All of Gutmann and Thompson's examples involve matters that public
officials debate: laws, appropriations, court rulings, and administrative decisions. It seems
philistine and misguided to ask artists and their interpreters to become policy analysts.
Nevertheless, I believe that avant-garde artists can and should pay more attention to deliberative
values than they do.
Consider an example of politically motivated or engage art that fails as rhetoric because the
artist does not know how to persuade average Americans who disagree with him. On the wall of the
Whitney Museum, Hans Haacke has printed Mayor Giuliani's remarks about the "Sensation" show
in Fraktur, Hitler's preferred script. The sound of marching boots emerges from nearby trash
cans, while newspaper clippings and the text of the First Amendment lie on the floor, apparently
ready to be trampled.
This installation, entitled "Sanitation," criticizes a public policy (the revocation of the Brooklyn
Museum's funding). It offers reasons for its conclusion and may promote serious
thinking--although perhaps not exactly the thoughts that Haacke had intended. On these grounds,
"Sanitation" qualifies as an exercise in deliberation, but it is an extremely clumsy example. It
invites the response that its artist has trivialized the Holocaust and misunderstood the present
political situation. Rudy Giuliani is no Adolf Hitler; besides, the Mayor's office lacks dictatorial
powers. Perhaps Haacke feels that he dwells among the complacent subjects of a police state, so
that he must issue shocking statements in order to provoke dialogue and resistance. However, this
view is false. The fact that "Sanitation" poses as "art" is no excuse for its bad arguments and ad
hominem attacks.
Unlike Haacke's "Sanitation," the works in "Sensation" do not directly engage policy questions.
Often they challenge the traditional limits of art by combining a cool, museum-style presentation
with appalling materials, such as human blood. But even these works can be germane to policy
decisions. The public (and public officials) must consider the definitions, purposes, and limits of
"art" whenever the question of cultural subsidies arises. If post-modern artists successfully
undermine the distinction between art and despised objects such as cows' heads, then the case for
arts subsidies will weaken. More generally, shocking the bourgeoisie is no way to persuade them
to pay for art. Representative [to be gender neutral] Brian Bilbray is a moderate California
Republican who votes to fund the National Endowment for the Arts. "You can't expect public funds
to be used on the cutting edge," he told the San Diego Union-Tribune, "because artists have to be
responsible to the people who pay the bills, just like Michelangelo had to answer to the pope."
Another class of works in "Sensation" invites us to change our ways of observing other people,
perhaps for moral reasons. For instance, Danto argues that Jenny Saville's cropped painting of a
naked woman with contour lines like those in a topographical map ("Trace") challenges our
tendency to objectify the female body. Saville is heir to a long tradition of artists who seek to
shock us out of our visual habits and assumptions. Consider a famously controversial American
work, Andres Serrano's photograph of an old woman with withered breasts about to perform oral
sex on a young man ("The Kiss," 1996). The purpose of this image is surely to make men
question their desire for images of nubile female bodies.
In principle, such works could change social norms for the better, with implications for public
policy. But it is unlikely that many men who happily employ the "male gaze" when they look at
real women are going to view images by Saville and Serrano. Except when there is a controversy
about public money, the Art World mostly talks to itself. Avant-garde artists could once command
a large audience merely by crossing boundaries of taste and propriety, but now the public is not
so easily shocked, and only pop culture frequently achieves succes de scandale. The Daily News'
Michael Daly wrote: "As viewed in the catalogue, 'Sensation' is now about as sensational as Beanie
Babies." Ofili's "Holy Virgin Mary" still managed to attract headlines by appalling the Catholic
Church, but the only people who seemed to notice Jenny Saville's paintings were respectful art
critics who already opposed sexism and the male gaze.
Therefore, instead of trying to astound the bourgeoisie, engage artists might employ more
deliberative techniques. It need not be burdensome to have to persuade average citizens by using
reasons that they can share and by listening carefully to their responses. These are democratic
skills that can inspire the fine arts, as the long tradition of American public art testifies. One
high point was the New Deal, when artists employed by the Works Progress (later Projects)
Administration's Federal Art Project (WPA/FAP) generated hundreds of thousands of murals,
posters, and statues in consultation with "co-operating sponsors"--usually local governments.
Even today, Christo saves all the correspondence, plans, environmental-impact statements, and
petitions that he needs before he gets permission to "wrap" a building. These objects (which are
often beautiful) become part of the art; they celebrate his respectful engagement with democratic
communities.
To engage the public in dialogue does not require behaving in the civil, courteous, and reasonable
fashion that we would prefer in the U.S. Senate or the Supreme Court. When the circumstances
demand it, the artist and philosopher Adrian Piper distributes small cards with the following
text: "Dear Friend. I am black. I am sure you did not realize this when you made/laughed
at/agreed with that racist remark." This is effective political performance art. It challenges not
only the recipient but also Piper's whole audience to examine their consciences in ways that
could change social norms and ultimately affect public policy decisions. Perhaps Piper's cards do
not exemplify "deliberation," as Gutmann and Thompson define it. For example, when she appears
to acknowledge the good faith of others ("Dear Friend, I'm sure you did not realize ..."), she may
be bitingly sarcastic rather than sincere. But an artist can contribute to an important democratic
conversation even if her rhetoric is not itself civil.
The Politics of Art
More so than artists, elected officials and political commentators have a duty both to deliberate
and to foster reasonable public discussion. To be sure, politicians sometimes face a dilemma. If
they behave civilly and thoughtfully, they may lose elections to opponents who hold what they
consider pernicious views and methods. The competitive nature of politics excuses some lapses
from the Gutmann-and-Thompson norms. But that does not mean that everything that powerful
politicians say is acceptable from the public's point of view. Similarly, newspapers must sell
copies in a competitive marketplace. But they do not have to discard civility and reasonableness
in order to capture market share.
During the "Sensation" debate, New York City looked for technical excuses to penalize the
Museum, rather than advance a cogent critique of the art. (I leave aside the conflict-of-interest
allegation, which raised important but complex questions about museum practices generally.)
The Mayor never addressed the arguments that Danto and others made in defense of the Young
British Artists; indeed, he never attended the show.
Meanwhile, in the New York Post, columnist Rod Dreher called the exhibition's organizers
"Prospect Park Poo Peddlers" and accused them of "intellectual mountebankery and
self-righteous leftie mewling." This was extreme, but more respectable voices repeatedly
accused Ofili of being an anti-Catholic bigot, even though the artist denied the charge and
explained that his use of elephant dung symbolized "regeneration." Mike Barnicle of the New York
Daily News presented a particularly caustic analogy:
Ofili, himself a Catholic, is black as night. Imagine for a moment if a guy named
Kelly sat down at an easel, produced a painting of a black man being dragged
behind a pickup truck driven by a laughing rabbi with a smiling Billy Graham
standing on the bumper, urinating on the victim's battered corpse and decided to
call it art.
Liberal museum goers, Barnicle concluded, would be the first to demand that "Kelly's" work be
banned. But it's hard to see how the wicked and cartoonish painting in Barnicle's story could
resemble "The Blessed Virgin Mary."
The Mayor denounced any and all art that (as a factual matter) offends some citizens. Instead, he
could have explained why the particular works in dispute were not worth exhibiting and then
listened to any serious replies. At the same time, he could have considered his own authority to
evaluate works of art. As a general rule, should elected officials intervene in specific decisions by
museums, or should they give curators (or public administrators, or independent experts, or
committees of artists) a free hand to decide what works to exhibit? Under what circumstances is
political intervention appropriate? A well-organized debate about arts funding would open with
such procedural questions.
One of the worst effects of the "wars" over arts funding is that we have not been able to deliberate
about such issues as a public or in Congress. We might also ask: Is the occasional scandal a
necessary price to pay for subsidizing art that is mostly innocuous? Can we avoid such scandals
through skilful vetting procedures? Or should we actually be happiest when tax money pays for
unpopular ideas, thereby broadening the debate? In general, is state support for the arts
necessary, or would the private sector finance art adequately? Would a different system for
paying artists produce better or worse works? What kind of art do we need, anyway?
In this discussion, it is worth considering the WPA example, which shows that state support can
encourage artists to begin constructive dialogues with the broad public without sacrificing their
independence. In contrast, the Young British Artists got their start in the late 1980's, when state
funding was at its low ebb in Britain. They began making scandalous artistic "statements" partly
in order to attract attention and sales, since there were few grants to be had. All the works in
"Sensation" are now owned by Margaret Thatcher's former advertising guru, an entrepreneur
who has made considerable profit in the art business. In this case, at least, the market rewarded
scandal. The best way to encourage more responsible art may be to subsidize it publicly, but
that's not going to happen if elected leaders feel they must second-guess each curator's decision.
It seems to me that if you dislike the values that are reflected in contemporary art, then you
should make overtures to artists, not just threaten to cut off their financing. For their part,
artists who dislike conventional beliefs and values need ways to communicate with average
Americans, not just other members of the Art World. But the encounter between politics and art
is not likely to be illuminating until we have a different kind of political leadership--and a
different avant-garde.
Peter Levine
Institute for Philosophy and Public Policy
School of Public Affairs
University of Maryland
pl60@umail.umd.edu
Sources: Brooklyn Museum of Art web site at www.brooklynart.org (visited in September 99); David M.
Herszenhorn, "Brooklyn Museum Accused of Trying to Lift Art Value," The New York Times (September
30, 1999); Brooklyn Institute of Arts & Sciences v. Giuliani, Memorandum of Law Submitted on Behalf
of the New York Civil Liberties Union, et al. as amicus curiae, 64 F. Supp.2d 184 (1999); Tim Miller
paraphrased in Joe Williams, "Performance Artist Miller Just Can't Stop Acting Up," St. Louis
Post-Dispatch (November 20, 1998); The Brooklyn Institute of Arts and Sciences v. The City of New
York, 64 F. Supp. 2d 184 (1999); David M. Herszenhorn, "With Art Battle in Spotlight, Mayor Revels in
the Glare," The New York Times (October 4, 1999); Dan Barry and Carol Vogel, "Giuliani Vows To Cut
Subsidy Over 'Sick' Art," The New York Times (September 23, 1999); Thomas Jefferson, preamble to
a (A?) Bill for Establishing Religious Freedom, reproduced in Julian P. Boyd, ed., The Papers of Thomas
Jefferson (Princeton, 1950); Federal Communications Commission v. League of Women Voters of
California, 468 U.S. 364 (1984); David M. Herszenhorn, "Giuliani's Threats to Museum Make Exhibit a
Hot Topic," The New York Times (September 27, 1999); Amy Gutmann and Dennis Thompson,
Democracy and Disagreement (Harvard, 1996); Terry Teachout, "That Empty, Queasy "Sensation";
Brooklyn Show Isn't Worth Such a Fuss," The Washington Post (October 2, 1999); Carol Vogel, "Holding
Fast to His Inspiration," The New York Times (September 28, 1999); Michael Kimmelman, "After All
That Yelling, Time to Think," The New York Times (October 1, 1999); Arthur C. Danto, "'Sensation'" in
Brooklyn," The Nation (November 1, 1999); Welton Jones, "Pro-NEA Bilbray Got What He Lobbied For,"
The San Diego Union-Tribune (July 28, 1998); Michael Daly, "Rudy's Making Real Sensation," New
York Daily News (September 26, 1999) (www.nydailynews.com); Adrian Piper's business-card sized
pieces are entitled Angry Art, (self-published, 1985). To read the full text of Piper's "I am black..."
card and for a discussion of the work in historical context, see
www.vsw.org/afterimage/25year/cauley.html; Rod Dreher, "Leftist Loonies in Comedy of Manures,"
New York Post (September 30, 1999) (www.nypost.com); Mike Barnicle, "Museum's Dung Show Turns
Us All into Losers," New York Daily News (October 3, 1999) (www.nydailynews.com).
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