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What Limits to Freedom? Freedom of Expression and the Brooklyn Museum’s “Sensation” Exhibit

by Melissa Davis

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Prof. K.D. Smith Humanities 205 16 May 2009

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Davis 1 Melissa Davis Professor Smith Humanities 205 16 May 2009 name and page number in top right corner What Limits to Freedom? Freedom of Expression and the Brooklyn Museum’s “Sensation” Exhibit For over a century public galleries in Western democracies have been forums not only for displaying works by “old Masters” but also for presenting art that is new, as well as ideas that are sometimes radical and controversial. In the United States that tradition has been under wide attack in the past generation. Various political and first line of all religious leaders have criticized exhibits of works of art that they claim paragraphs indented offend against notions of public decency, and have crusaded against providing public funding for the creation or display of such works. The largest such controversy of the past generation was sparked by the display of a painting entitled “The Holy Virgin Mary,” by the British text left justified and ragged right artist Chris Ofili at the Brooklyn Museum in 1999. Though the image appears inoffensive at a distance, the artist has affixed to the painting cutouts of body parts from magazines, and has incorporated clumps of elephant dung into the piece, both below the main body of the work as if supporting it and as part of the collage. The text double-spaced throughout

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Davis 2 resulting uproar led both to a widely publicized court case and to an ongoing campaign to support “decency” in artistic expression. Should such art be banned? Should it be exhibited at public expense? In the course of the Ofili controversy cultural conservatives raised legitimate concerns about the obligation of any society to provide funding for activities of which it disapproves. This essay will argue, however, that the greater concern is in the other direction; a free society must continue to provide opportunities for the free expression both of artistic vision and of controversial thought. The Ofili piece was part of a much-hyped exhibit entitled “Sensation: Young British Artists from the Saatchi Collection.” As the title indicated, the show was made up entirely of works from one collection, that of the wealthy British advertising executive Charles Saatchi.1 The exhibition had been shown first at the Royal Academy of Arts in London and then at a major gallery in Berlin. (In London what sparked controversy was not Ofili’s work but rather a realistic painting by Marcus Harvey of child-murderer Myra Hindley that incorporated hundreds of children’s handprints into the image.) Bringing the show to Brooklyn cost one million dollars—a cost covered in part by Christie’s, a London auctioneer—and from the outset it could be argued that the museum was courting controversy. numbered note for additional information provided as an aside first paragraph ends with a statement of the essay’s thesis

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Davis 3 parenthetical reference; Internet source has no page number It claimed in its advertising that the 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” (qtd. in Barry and Vogel). No doubt that warning was tongue-in-cheek, but there was nothing ironic about the angry reactions provoked by the show in italics used for titles of books, newspapers, journals, etc. general and directed toward the Ofili piece in particular. On one side art critics and civil libertarians were full of praise; in The New York Times the work was praised as “colorful and glowing” (Kimmelman). On the other side John Cardinal O’Connor called it “an attack on religion,” and the president of the Catholic League for Religious and Civil Rights called on citizens to picket the exhibition (qtd. in Vogel). The United States Senate and the House of Representatives both passed resolutions condemning the exhibit. Even more vehement

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was the response of New York Mayor Rudy Giuliani (later to become famous for his leadership in the wake of the September 11, 2001 terrorist attacks, and in 2008 to run for president); he declared himself “offended” and the work itself “sick” and “disgusting” (qtd. in Barry and Vogel). He ordered that ongoing city funding of the museum be withheld until the offensive work was removed, and launched eviction proceedings against the museum. Other conservative politicians—

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Davis 4 then-Texas Governor George W. Bush prominent among them—spoke out in support of Giuliani’s stand (“Bush Backs Giuliani”). What was the substance of Mayor Giuliani’s case? Here is how he explained his stance in two statements to the press: You don’t have a right to a government subsidy to desecrate someone else’s religion. And therefore we will do everything that we can to remove funding from the [museum] until the director comes to his senses and realizes that if you are a government subsidized enterprise then you can’t do things that desecrate the most personal and deeply held views of people in society. (qtd. in Brooklyn Institute of Arts and Sciences v. City of New York 7) long quotations indented— no quotation marks used except for quotation within a quotation

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“If somebody wants to do that privately and pay for that privately ... that’s what the First Amendment is all about,” he said. “You can be offended by it and upset by it, and you don’t have to go see it, if somebody else is paying for it. But to have the government subsidize something like that is outrageous.” (qtd. in Vogel) But is it outrageous? Let us examine the implications of Giuliani’s argument. According to him, government should never provide

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Davis 5 funding for activities that some people may find deeply offensive. But governments have long funded much artistic and intellectual activity in advance on the grounds that such activity in general represents a social good, without knowing precisely what sort of artistic work will be created or exhibited, what results academic research may come up with, and so on. If such funding were to be always contingent on no one ever being deeply offended by the results of the artistic or intellectual activity, the effect would be to severely damage freedom of speech and expression. (Here it is important to note that the actions Giuliani took were retroactive; the annual funding for the museum had not been provided with strings attached.)2

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Social conservatives are often characterized as favoring censorship of any material they find offensive; to be fair, that is clearly not the position Giuliani takes here. Nor is the issue whether or not the material is offensive; Hillary Clinton, for example, agreed that works such as that by Ofili were “objectionable” and “offensive” (qtd. in Nagourney), while opposing any punitive actions against the museum. Rather, the issue at stake is under what conditions government has an obligation to fund controversial artistic or intellectual activity. To that question at least one short answer should be plain: an obligation exists where a prior commitment has been made. As Judge Nina Gershon

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Davis 6 put it in her eventual ruling on the case, the issue is ... 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. (Brooklyn Institute v. City of New York 17) Where such a commitment has been made it can only be fairly broken if the activity has in some way contravened previously agreed-on guidelines or if it has broken the law. If, for example, a work of art or of literature is thought to violate laws against obscenity, laws concerning hate crimes, laws concerning libel and slander—or, indeed, laws concerning cruelty to animals, as in the cases of certain “works of art” in recent years3—then legal recourse is available. But not even the most vociferous of the opponents of the “Sensation” exhibit suggested that Ofili, the curators, or anyone else had broken the law. Moreover, the ongoing funding for the Museum had never been made contingent on the institution’s exhibits never offending anyone. There were therefore no just grounds for taking punitive action as Giuliani did. But how much further than this should the obligation of government to fund controversial artistic or intellectual activity extend? Do

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Davis 7 governments have a general or unrestricted obligation to support and no citation needed for information that is common knowledge to fund such activity? The tradition of government support for artistic and intellectual activity in Western democracies has for many generations been one in which support was provided at “arm’s length” from the political process; if judgments based on the merit of individual works need be made, they are typically made by bodies independent of government. That approach has stemmed from a number of sensible general principles. One such principle has been a recognition of the inherent value of intellectual and artistic activity. Another has been a recognition that such activity will sometimes be challenging, disturbing, even offensive or disgusting.4 And a third has been that if politicians are involved in judging individual artistic or intellectual works, the judgments will tend to be made more on political and religious grounds than on intellectual and esthetic ones. We value a society in which a wide range of free expression is supported, and we have come to expect that governments will provide a good deal of that support.

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Despite the general support for these principles that exists in our society, we should not assume an unlimited obligation on the part of government. In particular, liberals and civil libertarians are unwise if they suggest that the obligation of the government to support artistic

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Davis 8 or intellectual endeavor is always a strong and compelling one, or that any failure of a government to provide financial support for such endeavor somehow constitutes censorship.5 There is no clear agreement as to what constitutes art; it follows that there can be no legal or moral obligation to fund everything that may be classified as art. And to decide in advance not to subsidize an activity is not the same as censoring that activity; civil libertarians do not advance their case by equating the two. Indeed, as philosopher Peter Levine has pointed out, attempts to remove all restrictions on government support can easily backfire, since the law 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 cancelled all support for individual artists. (2) If it is a great mistake for the artistic and intellectual communities to press too hard for unrestricted government support, it is perhaps an even greater mistake for cultural conservatives to seek to restrict government support to work that conforms to their definition of “decency.” The moral obligation of government to support a broad range of artistic and intellectual expression may be a relatively weak sentence structured so that it flows grammatically into quotation

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Davis 9 one, but if we cast it aside we are choosing to narrow ourselves, to discourage rather than encourage the sorts of challenge from new ideas and new artistic expressions that continually replenish the red blood cells of democratic society. In approaching such questions we should ask ourselves what really constitutes freedom of thought, speech, and expression. One defining pillar is legal: constitutional guarantees of freedom and the case law that has helped to define them.6 But is that all there is to it? A moment’s reflection should make it clear that a great deal else is involved. Regardless of what is allowed or prohibited, if there exists a scarcity of art galleries—or of book publishers, or of academic journals, or of newspapers, or of radio and television stations—that are willing to put forward original and controversial works of art, or works of scholarly research, or political treatises, then freedom of speech and expression is in practice severely limited.7 And economic reality dictates that a number of valued activities, including academic research as well as many of the arts, would be severely curtailed without some degree of public funding. If we choose as a society not to fund such activities we will inevitably be erecting real barriers against freedom of speech and expression, even if we have passed no laws restricting such freedoms. That is the reality at the heart of the “Sensation” controversy.

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Davis 10 It is interesting that in the midst of the controversy Ofili’s work itself became oddly invisible, lost in the clamor of arguments from principle on both sides of the debate. Photographic representations of “Holy Virgin Mary” are widely available on the Web,8 and viewers coming to these after sampling the heat of the arguments surrounding the piece are likely to be surprised by how calm and pleasant an image is presented to them. Ofili himself was the recipient of the prestigious Turner Prize in 1998 and has been widely recognized as one of the most important of his generation of British artists. Fairly typical are the comments of a writer in Art in America, one of the most authoritative journals of contemporary art criticism: “his paintings are a joy to behold.... His technique, as it becomes ever richer and more complex, is developing an emotional range to match its decorative facility” (MacRitchie). The painter, who was born in Britain to parents of Nigerian background, was raised—and still remains—a church-going Catholic. (Clearly critics’ claims that “The Holy Virgin Mary” is offensive to Catholics cannot be true of all Catholics!) Ofili has spoken interestingly of how he draws connections between the subjects of his work and the materials he uses, including shiny varnish to make it seem that the subject of a painting is “in some ways more imagined than real” (qtd. in Vogel), and, of course, the notorious parenthetical references at end of short quotations followed by end punctuation

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Davis 11 balls of elephant dung that adorn the work and on which it rests.9 Significantly, Ofili has incorporated dung into many of his works, quotation with author named in signal phrase; page number in parentheses including those portraying slaves and other African subjects. As Arthur C. Danto has pointed out, “since it is unlikely that as a black Anglo-African Ofili would have used dung to besmirch the slaves [in the picture “Afrobluff”], there is no reason to suppose he was bent on besmirching the Holy Virgin through its presence there either” (2). From one angle, Ofili clearly sees the use of dung as a way of connecting his paintings to his African heritage and of giving the paintings “a feeling that they’ve come from the earth” (qtd. in Vogel). But he also aims to create a tension between the superficially appealing nature of his images and the inherent unpleasantness of some of the materials he has used to create them: title cited when work has no attributed author “The paintings themselves are very delicate abstractions, and I wanted to bring their beauty and decorativeness together with the ugliness of shit10 and make them exist in a twilight zone—you know they’re together, but you can’t really ever feel comfortable about it.” (qtd. in Sensation)

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One does not need to endorse all of Ofili’s theorizing about what he does, or agree fully with the favorable assessments of the critics in order to conclude that it would be unreasonable not to classify his

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Davis 12 work as art. Even the narrowest and most conservative definitions of art allow the term to be applied to work that many people find pleasing to the eye and that many agree demonstrates creative skill. Ofili’s work unquestionably fulfills those criteria. More than that, there is evidently a good deal of subtlety and nuance to both the work and the ideas of this painter, far more than the polarized debate swirling around the painting might suggest. Even if some find this art offensive, it is hard not to think that on its merits Ofili’s work deserves to be widely exhibited. In a narrow sense the controversy of the Ofili work and the Sensation exhibit ended with a clear victory for the Brooklyn Museum. Federal Judge Nina Gershon ruled that in these circumstances the City of New York’s attempt to shut down the exhibit constituted a violation of the First Amendment—the Constitutional guarantee of freedom of expression—and in March of 2000 the City and the museum reached an agreement under the terms of which all further lawsuits were dropped and the City agreed to contribute 5.8 million dollars towards a museum restoration project. (The museum re-opened in 2004 after the completion of restorations.) But in a wider sense the outcome is far less certain. In 2001 Mayor Giuliani attempted to develop “decency standards” intended to restrict these sorts of works

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Davis 13 from being shown in future in publicly funded exhibitions, and such initiatives received strong support from the administration of George W. Bush. Among certain commentators the crusade against Ofili has continued unabated long after the exhibit itself had ended. Phyllis Schlafly is one such crusader (1999); Tammy Bruce is another. In her best-selling book The Death of Right and Wrong, for example, Bruce uses the case as an example in urging us to “make no mistake: the degrading of symbols important to Christianity is ... propaganda meant to change your view of Christianity as a whole” (52). Given the persistence of attacks of this sort, major museums and galleries must have real courage to mount exhibitions of work that they consider likely to be controversial. Tellingly, the “Sensation” exhibit was never seen after it closed in Brooklyn; the National Gallery of Australia canceled its plans to show the exhibit, and a Tokyo museum that had expressed interest in exhibiting it thereafter did not in the end make any commitment (Rosenbaum). More recently, the San Francisco Art Institute closed Adel Abdessemed’s controversial “Don’t Trust Me” show after only a few days “for safety reasons” (DeBare B1) in the face of protests by animals’ rights groups and some artists, though there had been no suggestion that any law had been broken, and though condemnation of the show had been far from universal.11

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Davis 14 Legal victories in defense of freedom of expression, then, will never in themselves suffice. The preservation of a truly open society requires, on the part of those who wish to allow and to encourage freedom of expression, a moral determination that is at least as strong as the moral determination of those who wish to roll back its frontiers. Much as constitutional guarantees of freedom of expression are important, even more so is whether we wish as a society to narrow the range of what citizens may readily see or hear, or instead to encourage the wide dissemination of information, opinion, and artistic expression—even opinions and artistic expressions that some may find offensive. In the years since the September 11, 2001 attack, it is understandable that many both within the United States and around the world have been prepared to accept some new restrictions on freedom. But whatever justification there may be for such restrictions does not extend to the sphere of intellectual and artistic activity. If we wish to retain a robustly democratic society we should continue to choose the path of openness. final paragraph restates and broadens the essay’s main argument

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Notes notes numbered as in text 1. Saatchi contributed $100,000 to mounting the show, the economics of which became another subject for controversy when it was shown in Brooklyn. As well as complain about the content of the works in the exhibit, Mayor Rudy Giuliani and others suggested that the show had been intended in large part to raise the value of works in the Saatchi collection, and on those grounds, too, argued that the exhibit should not be receiving a subsidy from taxpayers. each note indented 2. Because its content was recognized as controversial, city officials had been provided in advance of the “Sensation” show with photographs and full descriptions of all pieces to be included in the exhibit, including the information that Ofili’s works incorporated elephant dung into the images they portrayed. The mayor insisted that he personally had not been alerted to the content of the show beforehand, however. 3. Animal rights activists have protested against works by the renowned British artist Damien Hirst, which present, among other things, a sectioned cow and a bisected pig in formaldehyde cases. (Several such works by Hirst were included in the “Sensation” show.) In Toronto, art student Jesse Power and two friends pleaded guilty in

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Davis 16 2001 to charges of animal cruelty and public mischief after making what they called an art video recording their torturing and killing a cat; the case again aroused controversy in 2004 following the release of a documentary film about the incident, Casuistry: The Art of Killing a Cat, directed by Noah Cowan and Piers Handling. See also the articles by Christie Blatchford and by Gayle MacDonald, and Note 11 below on the 2008 “Don’t Trust Me” exhibition in San Francisco. 4. There are many defenses of the principle that an open society must make a place even for controversial or disgusting material. The case for the other side is put by John Kekes in A Case for Conservatism; he argues for what he terms “the moral importance of disgust” (100–109). 5. To be fair, although some individuals make assertions as extreme as this one, responsible civil liberties organizations such as the ACLU stop short of any such all-embracing claim. 6. The First Amendment to the American Constitution specifies that Congress “shall make no law ... abridging the freedom of speech, or of the press; or the right of the people to assemble....” In American legal practice it has long been established that “freedom of speech” should also cover other forms of expression—such as artistic works. Other, more recent constitutions tend to make such protections explicit; the Charter of Rights and Freedoms that forms a central

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Davis 17 part of the Canadian Constitution, for example, protects “freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication.” 7. A good example of how such freedoms may be constrained is the March 2003 case in which Natalie Maines of the Dixie Chicks criticized George W. Bush—and promptly found that two media conglomerates controlling over 1,300 radio stations refused to play Dixie Chicks music. That case is discussed by Robert B. Reich in Reason: Why Liberals Will Win the Battle for America. 8. Among the many Web addresses at which photographs of the work may be found are www.artsjournal.com/issues/Brooklyn.htm and www.postmedia.net/999/ofili.htm and www.geocities.com/southernhelle/sensation3.html. 9. Many who have attacked the piece have chosen to describe the dung as being “smeared on a Christian icon” (Bruce 39, my italics), which is substantially to misrepresent the nature of the work. 10. It is interesting to contemplate the impact diction may have on arguments such as this; it is difficult not to respond slightly differently depending on whether the material is referred to using the noun Ofili uses here or referred to less provocatively as “dung.” 11. The show included video clips of the killing of animals in

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Davis 18 rural Mexico. The artist had evidently not arranged for the killings; he was merely recording local practice. For more on this and other recent controversies, see the articles by Kenneth Baker and Phoebe Hoban.

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works cited are listed alphabetically Works Cited

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Baker, Kenneth. “Show’s Cancellation a Rare Case of Artists Advocating Censorship.” San Francisco Chronicle 1 Apr. 2008: E1. Print. Barry, Dan, and Carol Vogel. “Giuliani Vows to Cut Subsidy over Art He Calls Offensive.” New York Times 23 Sept. 1999: n. pag. Web. 2 May 2009. Blatchford, Christie. “Face to Face with Cruelty.” Globe and Mail 4 Sept. 2004: each A13. Print. entry begins Brooklyn Institute of Arts and Sciences v. City of New York 99CV 6071. New at left York Law Journal 1 Nov. 1999: n. pag. Web. 1 May 2009. margin; subseBruce, Tammy. The Death of Right and Wrong. New York: Three Rivers, 2003. quent lines Print. are indented “Bush Backs Giuliani on Museum Flap.” Associated Press 4 Oct. 1999: n. pag. Washingtonpost.com. Web. 3 May 2009. Danto, Arthur C. “‘Sensation’ in Brooklyn.” The Nation 1 Nov. 1999: n. pag. Web. 1 May 2009. DeBare, Ilana. “Art Institute Halts Exhibition Showing Killing of Animals.” San Francisco Chronicle 30 Mar. 2008: B1. Print. Hoban, Phoebe. “How Far Is Too Far?” ArtNews Summer 2008: 145-49. Print. Kekes, John. A Case for Conservatism. Ithaca, New York: Cornell UP, 1988. Print.

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Davis 20 Kimmelman, Michael. “A Madonna’s Many Meanings in the Art

double World.” New York Times 5 Oct. 1999: n. pag. Web. 2 May 2009. spacing used Levine, Peter. “Lessons from the Brooklyn Museum Controversy.” throughout Philosophy and Public Policy Quarterly 20.2/3 (2000): n. pag. Web. 3 May 2009. MacDonald, Gayle. “TIFF Contacts Police over Death Threat: Caller Threatens Programmer over Cat-Killer Documentary.” Globe and Mail 1 Sept. 2004: R1. Print. MacRitchie, Lynn. “Ofili’s Glittering Icons.” Art in America Jan. 2000: n. pag. Find Articles at BNET. BNET. Web. 1 May 2009. Nagourney, Adam. “First Lady Assails Mayor over Threat to Museum.” New York Times 28 Sept. 1999. n. pag. Web. 1 May 2009. Reich, Robert B. Reason: Why Liberals Will Win the Battle for America. New York: Knopf, 2004. Print. Rosenbaum, Lee. “The Battle of Brooklyn Ends, the Controversy Continues.” Art in America June 2000: n. pag. Find Articles at BNET. BNET, n.d.Web. 4 May 2009. Schlafly, Phyllis. “Time to Abolish Federally Financed ‘Hate Art.’” Eagle Forum. Eagle Forum, 13 Oct. 1999. Web. 2 May 2009. italics used for titles of books, journals, magazines, etc.

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Davis 21 Sensation: Young British Artists from the Saatchi Collection. Guidebook. Geocities.com. Yahoo, n.d. Web. 2 May 2009. “Turner Prize: Twenty Years.” Tate Gallery Online. Tate Gallery, 2003. Web. 1 May 2009. Vogel, Carol. “Chris Ofili: British Artist Holds Fast to His Inspiration.” New York Times 28 Sept. 1999: n. pag. Web. 2 May 2009.

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