Giuliani had only seen a catalogue for “Sensation” when Mary Gay Taylor, a CBS reporter, asked him a question about the show at the prompting of the mayor’s aides. “Well, it offends me,” Giuliani replied
, immediately singling out Ofili’s image of the Virgin Mary
. “The idea of, in the name of art, having a city-subsidized building have so-called works of art in which people are throwing elephant dung at a picture of the Virgin Mary is sick. If somebody wants to do that privately and pay for that privately, well that’s what the First Amendment is all about,” he said, adding, “The city shouldn't have to pay for sick stuff.” Those two words—“sick stuff”—came to define the criticism of the show mounted by some Catholics who felt that using dung in a work with a religious icon like the Virgin Mary was offensive and sacrilegious. And certainly something that shouldn’t get public funding.
Even as Lehman and others defended the show, the mayor ramped up his rhetoric against the museum and threatened the $7 million it received from the city in operating expenses. This represented a mortally significant chunk of the museum’s $23 million budget. Also at stake were $20 million in capital improvement grants. Upping the ante, Michael D. Hess, the city’s corporate counsel, sent a letter to the museum saying that it was violating the terms of its lease and that the government could step in and replace the board of trustees with people who “have better judgment as to what is appropriate for this type of museum.” The potential of eviction loomed. Some wondered why Giuliani was taking such a strong stance. Did it have something to do with shoring up support among New York State Catholics in advance of a potential Senate run against Hillary Rodham Clinton? Did he really just hate the work? And if he did, was it because of the dung or because the Virgin Mary was black?
Then lawsuits began to fly as talks between the mayor and the museum faltered. On September 28, the museum filed a preemptive suit asking for a judge to prevent the city from withholding public funds meant to be paid to the institution each month. The city went ahead and held back an October 1st payment of $497,554 anyway. Two days later, lawyers for the city filed a suit of their own arguing for the immediate ejectment of the museum on the grounds it violated its lease, its funding contract, and its enabling legislation. “What’s he going to do, take all the artwork and throw it out on the street?” Siegel remembers thinking at the time. By way of legal justification, the city devised numerous, sometimes seemingly contradictory arguments, challenging everything from the private funding of the exhibition by Saatchi to the museum’s policy requiring those under 17 to see “Sensation” with an adult. “First we are told how vile and degenerate the exhibition is, and now we are being expected to open it up to children?” an incredulous-seeming Lehman told
Though at moments it approached a sad farce, at the core of the debate was the serious question of if public funding could be withdrawn from a museum because of the works displayed inside were seen as offensive. Did that violate the first amendment’s guarantee to free speech? Groups like NYCLU filed briefs in support of the museum saying yes, charging the government with censorship and writing that “the First Amendment also bars Mayor Giuliani from using City funding to dictate the content of a curated art exhibition.” They had Supreme Court jurisprudence on their side. “There is no doubt now, and there hasn’t been doubt for some time, that there is broad, even sweeping, protection for the arts as a result of the first amendment,” Floyd Abrams, the museum’s attorney at the time, told Artsy. Though obscenity laws have been found constitutional—a legal standard set by another art related court case in which Karen Finley battled against the NEA—the justices also ruled that while nothing compels the government to fund art, the state cannot withdraw funding due to the contents of a work of art.
As the case proceeded through the courtroom, outside, a battle in the larger court of public opinion insued. “I felt we needed to do something more than just be in the court. The instinct here was that this is something you should make larger than life,” Siegel said. “And it was also important, for us, to urge the arts community not to be timid, intimidated, or chilled by this misdirected efforts by the government. Instead it should be bold, creative, visible, and vocal in opposing censorship or intimidation.” The reminder was perhaps needed, with some critiquing the relatively tepid statement issued by the Met
and the MoMA
. Then-Met director Philippe de Montebello published an op-ed, critiquing the mayor’s position but also the contents of the work as lacking substance. “Even as director of the Metropolitan Museum of Art, he is not to be the judge of what the public deems ‘good’ or ‘bad’ any more than Mayor Giuliani,” shot back
a reader’s letter to the Times.
As the debate unfolded, a rally in support of the museum was held nearby and attended by thousands, including celebrities and artists from Susan Sarandon to Norman Mailer. “I didn’t want to go home that night,” said Siegel, who MC-ed the speakers. “You have these moments that you know are pure. Closing my eyes now, I remember where I was standing, just seeing a sea of people, racial diversity, different ages. And people really coming to understand the importance of the first amendment.” Another, though reportedly smaller rally, was held nearby on the same day by the the Catholic League’s president Bill Donohue, an early critic of the show for both “its anti-Catholic nature” and “the fact I’m paying for it,” he told me. In response to the museum’s decision to erect mock health warnings that “the contents of this exhibition may cause shock, vomiting, confusion, panic,” Donohue handed out 500 vomit bags during the demonstration. “I said yes, we would agree with you on that. And we wanted to make sure no one slipped on the barf,” he told me. “We passed out the vomit bags to make a point.” (Not above working together, Donohue and Siegel held a joint press conference during the debate to jointly condemn bigotry.)
Once again, people made their displeasure known. Scott LoBaido, today
a Trump supporting artist, hurled horse manure at the museum over the work. (It was not the last time he would tussle with the institution over works perceived as anti-Catholic.) But a poll conducted by the New York Daily News
showed that 60 percent of all New Yorkers and 48 percent of Catholics disagreed with Giuliani's position. With each side’s case made to the public, all eyes turned back to the courtroom.
On November 1, Federal Judge Nina Gershon delivered a 40 page opinion. In it, she ruled that the Brooklyn Museum had a high likelihood of prevailing if the case continued to trial. Gershon went further, issuing an injunction forbidding the city from withholding any more funding, evicting the museum, or replacing the board of trustees. The first amendment, she ruled, barred the government from using funding as means to coerce speech. It was a sweeping victory for the Brooklyn Museum. “The Judge is totally out of control,” Giuliani said in response to the verdict. But in March, bluster gave way to resolution. The parties settled out of court, with both sides paying their own legal fees and agreeing that the museum would be safe from future acts of retaliation from the city.
Today, over 15 years later, the impact of the decision can still be felt. “I think the notoriety of the Brooklyn Museum case has served as a significant protector for the arts thereafter,” Abrams said. He pointed to an exhibition of classified NSA materials shown as part of Laura Poitras’ Whitney
exhibition in February and March of 2016. “No one even talked about the possibility of prosecution of the Whitney,” he said. “It’s like the Sherlock Holmes story about the dog who didn’t bark. The fact that there was not even a public discussion about whether [the Whitney] was at risk or should be prosecuted is telling about the degree to which the first amendment has come to play a continuing role in the protection of the arts.” Granted, who knows what might have happened if someone other than Barack Obama was living in the White House.
Even when artists win these lawsuits, they can have a chilling effect on the work people make or what institutions choose to show. Such self-censorship is “one of my goals,” said Donohue, who doesn’t want the government censoring exhibition. Donohue said that he will continue to protest those he finds offensive in hopes artists voluntarily avoid such subjects in the future. Still, a Chris Ofili retrospective at the New Museum
in 2014 proved not only that museums were not afraid, but also reminded viewers that his output amounted to more than one work, in one exhibition, over a decade ago. “We thought that it was also important to show the impressive range of his work, from the work he’s more well known for—the extremely intricate and ornate paintings that he made in the ’90s—to the subtle blue paintings and vibrant and expressive recent paintings that he’s been [making] since his move to Trinidad in 2005,” Margot Norton, one of the New Museum curators told
Artsy in 2014.
“Sensation” continues to provoke debate. It was evidence that spectacle could get visitors into the gallery. And the personal benefit Saatchi received from a museum show of his collection—which was also partially sponsored by Christie’s—continues to be controversial as the art world continually privatizes. (Many remain critical of corporate sponsorship of public museums.) Even though the Brooklyn Museum case was a resounding victory for the museum, the culture wars of the 1970s and 1980s ended with an obscenity law firmly intact and a National Endowment for the Arts that has seen funding gutted and relevance diminished. And even with legal protections, those most vulnerable to government interference are the artists and institutions which lack the resources or public pull to defend themselves in court.
The presidential election results have many taking stock of past victories and future controversies. It seems reasonable to think that at some point over the next four years, a work of art could again find itself in the government’s crosshairs. “While it’s not predictable where challenges are likely to arise in the next four or eight years, it is predictable that there will be challenges to the arts generally, to museums particularly,” Abrams said. Thinking about the future, Siegel looks back to the past, on his experience in the civil-rights era South, working with black and white activists and lawyers. “They always taught me that you have to fight back,” he told me. “You have got to to try to win, but sometimes just fighting back is empowering. And you can’t be silent.”