Court Tells Giuliani to Back Off in Feud Over Art Show

A federal judge Monday ordered New York City to restore funding to the Brooklyn Museum of Art, dealing a setback to Mayor Rudolph W. Giuliani’s bid to sanction the museum for displaying works he called “sick stuff,” notably a painting of the Virgin Mary adorned with elephant dung.

In issuing a preliminary injunction against the city, U.S. District Judge Nina Gershon ruled that the Giuliani administration appeared to have violated the 1st Amendment rights of the art museum when it withheld last month’s installment of the city’s $7.2-million annual subsidy because of the exhibition titled “Sensation: Young British Artists From the Saatchi Collection.”

Gershon also ordered Giuliani, who is trying to evict the museum from its city-owned building, not to “inflict any punishment, retaliation, discrimination or sanction” against the institution because of the exhibition, which includes Damien Hirst’s dead animals suspended in formaldehyde, in addition to Chris Ofili’s works using elephant dung.

Coming at the end of a 10-year period when the art world has repeatedly suffered funding setbacks in response to criticism from conservative politicians, Gershon’s ruling was hailed by the Brooklyn museum as a “victory for the citizens of New York.”

Gathered at the Wall Street offices of their lawyer, Floyd Abrams, museum officials suggested that Giuliani had targeted the exhibition for political purposes, though they did not specifically mention the mayor’s expected U.S. Senate race next year against First Lady Hillary Rodham Clinton.

“This is a case that . . . will make even clearer that public officials may not use public funding as a private plaything,” Abrams said, “that they may not decide on their own that because they don’t like a picture, they don’t like a book, that the public doesn’t get to see the picture or doesn’t get to see the book.”

City officials, meanwhile, vowed to appeal the preliminary injunction to the U.S. 2nd Circuit Court of Appeals.

“The judge is totally out of control . . . abandoning all reason under the guise of the 1st Amendment,” Giuliani said while traveling north of the city.

Earlier Monday, just before the decision was released, an attorney for the city asked the judge for two more weeks to explore reports suggesting the Brooklyn exhibition might have been set up to “enrich the personal fortunes” of private parties, such as British advertising mogul Charles Saatchi, who owns the 90-plus artworks; Christie’s auction house, which underwrote the show; or even pop star David Bowie, who recorded the audio guide to the show and is displaying the art on his Web site.

In her 40-page ruling, however, Gershon suggested that all the city’s attacks stemmed from a basic dislike of the artworks. As a result, the museum--the second-largest in New York--has “suffered direct and purposeful penalization.”

“There is no federal constitutional issue more grave than the effort by government officials to censor works of expression. The facts establish an ongoing effort by the mayor and the city to coerce the museum into relinquishing its 1st Amendment rights.”

The judge noted that the city had plenty of warning of the content of the show. In March, museum Director Arnold H. Lehman gave a copy of the catalog, including a color photograph of Ofili’s “The Holy Virgin Mary,” to city Cultural Affairs Commissioner Schuyler Chapin, along with notices about works that were controversial when the show debuted in London, then went to Berlin.

Chapin wrote back April 14, she said, thanking Lehman for his “fascinating letter” about an exhibition that seemed designed, the city commissioner said, to “shake up New York’s art world.”

It wasn’t until shortly before the show’s Oct. 2 opening, though, that Giuliani began using his daily press briefings to lambaste the show as sacrilegious (“throwing dung on important religious symbols”).

The mayor subsequently contended that the museum was violating its lease by restricting access to the show because it banned children unless accompanied by an adult.

When the city withheld its $497,554 check, due Oct. 1, the museum went to federal court, seeking the injunction. Two days later, the city filed suit in state court, seeking to evict the museum.

Gershon noted that, when the parties appeared before her for arguments Oct. 8, the city dropped its lease and profiteering arguments and based its case “solely on its perception of the content of works.”

Her injunction was based on the likelihood that the museum would prevail if the case continued to a full trial. The judge suggested that the city was on the wrong side of “the overwhelming body of 1st Amendment law.”

She pointed out that the museum owns “many reverential depictions of the Madonna as well as other religious paintings.” Just as it would be wrong to suggest that the museum was illegally “endorsing religion by showing these works, there can equally be no suggestion that the museum is violating the [U.S. Constitution] by showing Mr. Ofili’s.”

The controversy here has been reminiscent of the federal arts funding fight that broke out a decade ago over support by the National Endowment for the Arts of an exhibition of Robert Mapplethorpe’s photographs, some of which were homoerotic. Though a spokesman for Giuliani has denied that politics played a role, the mayor seemed aware that his position might fortify his support among upstate conservatives and Roman Catholics in any race against Hillary Clinton.

The dispute has not been all bad for the museum. It reported last week that more than 70,000 people had visited in the first three weeks of “Sensation” and that 51,000 bought tickets, which cost $9.75 for adults, to see the show--more than 10% of the museum’s usual yearly attendance of 500,000.