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UNITED STATES
DISTRICT COURT
EASTERN DISTRICT OF
NEW YORK
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THE BROOKLYN INSTITUTE
OF ARTS
AND SCIENCES,
Plaintiff,
V.
THE CITY OF NEW YORK
and
RUDOLPH W. GIULIANI,
individually and
in his official
capacity as Mayor of the City
of New York,
Defendants.
Opinion and Order
99 CV 6071
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GERSHON, United
States District Judge:
The Mayor of the City
of New York has decided that a number of works in the Brooklyn Museum’s
currently showing temporary exhibit "Sensation: Young British Artists
from the Saatchi Collection" are "sick" and
"disgusting" and, in particular, that one work, a painting
entitled "The Holy Virgin Mary" by Chris Ofili, is offensive to
Catholics and is an attack on religion. As a result, the City has withheld
funds already appropriated to the Museum for operating expenses and
maintenance and, in a suit filed in New York State Supreme Court two days
after the Museum filed its suit in this court, seeks to eject the Museum
from the City-owned land and building in which the Museum’s collections
have been housed for over one hundred years.
The Museum seeks a
preliminary injunction barring the imposition of penalties by the Mayor and
the City for the Museum’s exercise of its First Amendment rights. The City
and the Mayor move to dismiss the Museum’s suit in this court, insofar as
it seeks injunctive and declaratory relief, on the ground that this court
must abstain from exercising jurisdiction in favor of the New York court
action, in which, they argue, the Museum may assert, by way of defense and
counterclaim, its First Amendment claims. For the reasons that follow, defendants’
motion is denied, and plaintiff’s motion is granted.
BACKGROUND
An examination of the
history of the Brooklyn Museum and its relationship to the City of New York
will illuminate the current controversy.
I. The History of
the Brooklyn Museum
The Brooklyn Museum
traces its origin to the Brooklyn Apprentices’ Library, founded in 1823,
whose book collection was first permanently housed in a Brooklyn Heights
building constructed in 1825, reportedly after General Lafayette laid its
cornerstone on the Fourth of July. A successor entity, the Brooklyn
Institute, incorporated in 1843, expanded its holdings of books, natural
history specimens and, to a lesser extent, art objects during the ensuing
decades of the nineteenth century. By the late 1880's, prominent citizens
and public figures of the then independent City of Brooklyn conceived an
ambitious plan to vastly expand the Brooklyn Institute’s collections in a
mammoth new building, which would rival the combined collections of New
York City’s Metropolitan Museum of Art and Museum of Natural History.
The City of New York
had already established in the 1870's a relationship with the Metropolitan
Museum of Art and the Museum of Natural History that would serve as a
prototype for the City’s relationship with other designated cultural
institutions, and for the relationship of the Brooklyn Museum with the
cities of Brooklyn and later New York. That relationship is described in
the official "Procedures Manual for New York City’s Designated
Cultural Institutions," at 3, as "joint partnerships between the
City and a group of private citizens." The Procedures Manual describes
that state legislation was passed to incorporate those two museums,
authorizing the City to construct the museums’ facilities and to lease
those facilities and the City-owned parkland on which they were located to
the new corporations. The museums, in turn, "became responsible for
programming the facilit[ies] and acquiring and exhibiting [their]
collections. The leases . . . contemplate that the City will maintain the
building[s] while the [museums oversee] the display of [their]
collection[s] to the general public."
In keeping with this
historical precedent, the New York State Legislature in 1889 authorized the
City of Brooklyn to reserve a portion of Prospect Park as "building
sites for museums of art and science and libraries," and to lease such
sites at nominal rent for up to one hundred years to corporations
"created for educational purposes," provided that "such
museums and libraries shall at all reasonable times be free, open and
accessible to the public and private schools of the said city, and open and
accessible to the general public on such terms of admission as the said
mayor and commissioners shall approve . . . ." L. 1889, c. 372, § 2.
The Brooklyn Institute
was reorganized into the Brooklyn Institute of Arts and Sciences, the
formal name of the plaintiff in this action (now known as the
"Brooklyn Museum of Art" or "Brooklyn Museum" and
sometimes referred to here as the "Museum"), by the New York
State Legislature in 1890. The Act formally incorporating the Brooklyn
Institute of Arts and Sciences, L. 1890, c. 172, designated by name
approximately fifty private individuals as the original trustees of the
Institute, and authorized the Institute to adopt its own constitution,
bylaws, and all appropriate rules and regulations for its self-governance. Id.
§§ 4, 5. Subsequent laws added public officials as ex officio members
of the Board of Trustees, including the Mayor, Comptroller, Park
Commissioner and Borough President. L. 1893, c. 579, as amended, L.
1934, c. 87 and L. 1949, c. 127.
The 1890 Act further
provides:
Section 2. The purposes of said corporation
shall be the establishment and maintenance of museums and libraries of art
and science, the encouragement of the study of the arts and sciences and
their application to the practical wants of man, and the advancement of
knowledge in science and art, and in general to provide the means for
popular instruction and enjoyment through its collections, libraries and
lectures.
Section 3. The museums and libraries of
said corporation shall be open and free to the public and private schools
of said city, at all reasonable times, and open to the general public on
such terms of admission as shall be approved by the mayor and park
commission of said city.
On December 23, 1893,
as authorized by state law, the City of Brooklyn leased the land to the
Institute for a term of one hundred years (the "Lease"), tracking
the language of the 1889 Act as to the use of the property and the
requirements for access by schools and the general public. The Lease
further provides that "if and when such museums . . . shall cease to
be maintained according to the true intent and meaning of said act, and of
this lease, then this lease shall be forfeited, and the said lands, and
buildings thereon erected shall revert to the City of Brooklyn."
Pursuant to other Acts of the New York State Legislature (L. 1891, c. 89;
L. 1894, c. 577; L. 1896, c. 406), the City of Brooklyn funded construction
of a building on the site designed by the noted architectural firm of
McKim, Mead & White (although only a fraction of the original ambitious
building plan was ever completed), to be leased to the Institute.
Upon completion of
construction of a wing of the new building, the City of Brooklyn entered
into a building lease and contract (the "Contract") with the
Institute, for a term coextensive with the Lease, to house the Institute’s
collections. The City of New York is the successor to the City of Brooklyn
under the Lease and the Contract. The parties agree that, upon the
expiration of the original term of the Lease agreement in December 1993,
the Museum remained a tenant in possession of the land and the building on
the same terms and conditions as contained in the Lease and Contract.
The Contract provides
that:
The Brooklyn Institute
of Arts and Sciences . . . shall place on exhibition in said Museum
Building collections of paintings and other works of art and collections
and books representing or illustrating each and all of the Departments of
the arts and sciences named in the constitution of said Institute, and
shall cause to be properly arranged, labelled and catalogued all such
collections and books as may be open to public exhibition or for public
use, for the instruction and benefit of the residents of Brooklyn or the
general public.
The Contract is
unequivocal that the City has no ownership rights with respect to any of
the collections in the Museum. It provides:
That the collections of
books and other objects in art and sciences placed in the Museum Building
for purposes of exhibition, instruction, or to enable the Brooklyn
Institute of Arts and Sciences to carry out its purposes as authorized in
its charter, shall continue to be and shall remain absolutely the property
of the [Institute], and that neither the [Mayor nor the City of Brooklyn]
by reason of said property being placed in said building or continuance
therein, have any title, property or interest therein.
The Museum established,
as a branch, the first children’s museum in the world in 1899. Throughout
the first decades of this century, the Museum’s collections greatly
expanded, with Departments of Fine Arts, Natural Sciences, and a
newly-established Department of Ethnology. The Museum decided in the 1930's
to focus on its collections of fine art and cultural history, and to
abandon its mission as a science museum. The Museum’s natural history
specimens were sent to other institutions. In 1934, the State legislature
amended the description of the Institute’s purpose quoted above, by adding
reference to establishment and maintenance of "botanical gardens"
and the provision of popular instruction and enjoyment through
"musical and other performances." L. 1934, c. 87. In the 1970's,
various components of the Brooklyn Institute of Arts and Sciences became
independent institutions, including the Brooklyn Children’s Museum, the
Brooklyn Academy of Music and the Brooklyn Botanic Garden.
The Museum today
describes itself as having the second largest art collection in the United
States, with approximately one and a half million objects. Its collections
are divided into the following departments: (1) Egyptian, classical and
ancient middle eastern art; (2) painting and sculpture; (3) arts of Africa,
the Pacific and the Americas; (4) Asian art; (5) decorative arts, costumes
and textiles; and (6) prints, drawings and photography. The Museum also has
two research libraries and an archive. The Museum’s permanent collection includes
secular as well as numerous non-secular objects. Materials submitted to the
court confirm the following description by the Museum’s Chief Curator:
"The collections include Catholic and Protestant religious works of
art, Jewish religious objects, objects representing many Eastern religions,
African spiritual objects, native American tribal objects, pre-Colombian
objects, Islamic religious objects, as well as religious objects from
numerous other cultures." These include many paintings and other objects
which are reverential of the Madonna and other figures and symbols
important to Christianity.
In addition to
displaying works from its permanent collection to the public, the Museum
regularly mounts temporary exhibits, and has done so throughout its history.
Some of these exhibits involve well-known artists and their works. Others
display little-known artists or obscure or esoteric works. The current
temporary exhibit, "Sensation: Young British Artists from the Saatchi
Collection" (the "Sensation Exhibit" or the
"Exhibit") is not the first controversial exhibit the Museum has
mounted. Past controversial exhibits include art and performance exhibits
in 1990 and 1991, respectively entitled, "The Play of the
Unmentionable: The Brooklyn Museum Collection," and "Too Shocking
to Show," which, to judge from contemporaneous news articles and
materials prepared by the Museum, were provocative responses to protests
over exhibits and performances at other institutions. Neither party to this
litigation is aware of any past objection by the City to any Museum
exhibit, or any prior effort by the City to stop an exhibit because of the
content of any works included.
Undisputed documentary
evidence establishes the Museum’s commitment, throughout its history and
continuing to date, to extensive educational programs for children,
teachers, families, members of surrounding communities, and the general
public. The Museum’s Education Division serves over fifty thousand children
and thirty-five thousand adults each year, with a staff of twenty-six
full-time employees, nine full-time paid interns, thirty-five part-time
instructors, and forty volunteer tour guides.
II. City Funding of
The Brooklyn Museum
The Contract provides
that "[the City] shall pay to the [Institute] each year such sum as
may be necessary for the maintenance of said Museum Building, or as may be
authorized by law or be apportioned or appropriated by [the City]."
The Contract specifically defines "maintenance" to include: (1)
repairs and alterations; (2) fuel; (3) waste removal; (4) wages of
employees providing essential maintenance, custodial, security and other
basic services; (5) cleaning and general care; (6) tools and supplies; and
(7) insurance for the building, furniture and fixtures.
Consistent with the
applicable statutes, the Lease, and the Contract, as well as with
historical practices, the City’s Procedures Manual specifies that public
funds are provided to designated cultural institutions to help meet costs
for general maintenance, security and energy, and in some instances to
support education programs. City funds generally "are not used for
direct curatorial or artistic services." Procedures Manual at 12. The
City also approves certain capital expenditures as part of its program
"to protect and ensure the continued existence of New York City’s most
precious assets, its cultural institutions, for local communities, the
general public and the artistic community." Id. at 14. The
City’s Fiscal Year 2000 appropriation of approximately $5.7 million to the
Museum specifies that the funding contributes to "maintenance,
security, administration, curatorial, educational services and energy
costs." The City was not asked to fund the controversial
exhibit giving rise to this action. The City’s Fiscal Year 2000
appropriation to the Brooklyn Children’s Museum is approximately $1.6
million.
Nothing in the City’s
lengthy annual final report and budget request form, which each institution
must supply, asks for detailed information concerning the individual works
in exhibits. Instead, the form is designed to determine, among other
things: the general purposes and plans of the institution; "brief
descriptions" (emphasis in original) of immediate past and future
programming; accomplishments and plans for educational programs for
children, educators and the general public; and detailed financial
information.
III. The Controversy
over the Sensation Exhibit
The Sensation Exhibit
was first shown in 1997 at the Royal Academy of Art in London, where it
drew record crowds for a contemporary art exhibit and generated controversy
and some protest demonstrations. The Brooklyn Museum’s Director, Arnold
Lehman, viewed the Exhibit in London and decided to attempt to bring it to
New York after its scheduled showing at a museum in Berlin. The Exhibit
includes approximately ninety works of some forty contemporary British
artists, a number of whom have received recognition by the artistic
community. Chris Ofili, Damien Hirst, and Rachel Whiteread, for example,
have received the Turner Award from the Tate Gallery. After being shown in
Brooklyn, the Exhibit is scheduled to be shown at the National Gallery of
Australia, and the Toyota City Museum outside of Tokyo.
Mr. Lehman’s efforts to
bring the Exhibit to Brooklyn continued through 1998, and plans were
finalized in April 1999. Mr. Lehman, starting in 1998, kept the Museum’s
Board of Trustees informed of his efforts, and of the Exhibit’s
controversial nature. The Mayor of the City is an ex officio member
of the Board, but his representative did not attend certain meetings at
which the Exhibit was discussed, although minutes of the meetings were sent
to him. The Commissioner of the City’s Department of Cultural Affairs,
Schuyler Chapin, also is an ex officio member of the Board of
Trustees. His designated representative did attend meetings regularly and
receive minutes of Board meetings. On or about March 10, 1999, Mr. Lehman
gave Commissioner Chapin a copy of the catalog for the Exhibit and
discussed its content. The catalog includes photographs and descriptions of
virtually all of the works in the Exhibit, including every work that the
City now finds objectionable. For example, it contains a full page color
photograph of "The Holy Virgin Mary" and a description of the
materials of which it is made, including elephant dung. On or about April
6, 1999, Mr. Lehman sent letters to members of the Board of Trustees,
including Commissioner Chapin and other public officials, stating that the
Exhibit was controversial, and he set forth the Museum’s plans to charge an
admission fee for the Exhibit and to require that all children be
accompanied by an adult. The letters specifically described the work of the
artist Damien Hirst, recognized "for his sections of various animals
(sharks, lambs, etc.) individually preserved and presented in sealed,
formaldehyde-filled glass containers." The Museum issued a similar
press release on about the same date. A New York Times article on
April 8, 1999, entitled "British Outrage Heads for Brooklyn," described
reactions of shock and condemnation, together with protests, that the
Exhibit had generated in London, as well as accusations by detractors that
the Exhibit promoted the commercial interests of Charles Saatchi, owner of
all of the works in the Exhibit. The article described some of the
controversial works in the Exhibit, including that of Hirst.
Commissioner Chapin, in
a letter dated April 14, thanked Mr. Lehman for his "fascinating
letter" about the Exhibit, which, he wrote, seemed designed to
"shake up New York’s art world." Commissioner Chapin voiced no
objection to the Museum’s planned admission policies and promised to convey
"any thoughts about funding he might have." There is no evidence
that the Mayor himself was personally aware of the specific contents of the
Exhibit.
The Exhibit was
scheduled to open to the public at the Museum on October 2, 1999. City
officials first began raising objections to the Exhibit on September 22. On
that date, Commissioner Chapin, stating that he was acting on behalf of the
Mayor, advised Mr. Lehman by telephone that the City would terminate all
funding to the Museum unless it canceled the Exhibit. Commissioner Chapin
specifically referred to the fact that the Mayor found objectionable
"The Holy Virgin Mary" by Chris Ofili. (All of the five Ofili
works in the Exhibit use elephant dung together with other materials. In
addition, on the painting entitled "The Holy Virgin Mary," there
are small photographs of buttocks and female genitalia scattered on the background.)
The Mayor explained his position publicly that day, taking particular
exception to "The Holy Virgin Mary." The Mayor stated that this
work "offends me" and "is sick," and he explained his
decision to terminate City funding as follows:
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 the people in society.
The Mayor also referred
to a Hirst work of two pigs in formaldehyde as "sick stuff" to be
exhibited in an art museum.
The following day, the
Mayor accused the Museum of violating the Lease by mounting an exhibit
which was inaccessible to schoolchildren and by failing to obtain his
permission to restrict access to the Exhibit, which he made clear he would
not give because of his view that taxpayer-funded property should not be
used to "desecrate religion" or "do things that are
disgusting with regard to animals." In a letter from New York City
Corporation Counsel Michael D. Hess to Mr. Lehman, dated September 23,
1999, Mr. Hess stated that "[t]he Mayor will not approve a
modification of the Contract to allow [the Museum] to restrict admission to
the museum. In light of the fact that [the Museum] has already determined
that it would be inappropriate for those under 17 years of age to be
admitted to the exhibit without adult supervision (a determination with
which the City does not disagree), [the Museum] cannot proceed with the
exhibit as planned."
The Mayor and other
senior City officials continued, and escalated, their attacks on the
Exhibit and their threats to the Museum, vowing to cut off all funding,
including construction funding, to seek to replace the Board of Trustees,
to cancel the Lease, and to assume possession of the Museum building,
unless the Exhibit were canceled. The Mayor asserted on September 24 that
he would not "have any compunction about trying to put them out of
business, meaning the board." On September 28, the Mayor publicly
stated that taxpayer dollars should not "be used to support the
desecration of important national or religious symbol, of any
religion." A City press release that day denounced "an exhibit
which besmirches religion and is an insult to the community." The
press release announced that, in response to the Museum Board’s formal
decision that day to proceed with the Exhibit, the City would end its
funding of the Museum immediately. In his deposition, Deputy Mayor Joseph
Lhota acknowledged that he had earlier told the Chairman of the Museum’s
Board of Trustees, Robert Rubin, that all City funding to the Museum would
be canceled unless the Museum agreed to remove "The Holy Virgin
Mary" from the Exhibit.
In response to the
City’s threats, including explicit statements by senior officials that the
City would withhold its monthly payment of $497,554 due on October 1, 1999,
the Museum commenced this action against the City and the Mayor on
September 28 ,1999, pursuant to 42 U.S.C. § 1983, seeking declaratory and
injunctive relief, to prevent the defendants from punishing or retaliating
against the Museum for displaying the Exhibit, in violation of the Museum’s
rights under the First and Fourteenth Amendments, including cutting off
funding, terminating the lease, seizing the building or attempting to fire
the Board of Trustees. The City has in fact withheld the scheduled October
payment to the Museum. Plaintiff filed an amended complaint on October 1,
1999, adding claims for damages against the defendants, and claims of
violation of the Equal Protection Clause and state and local law.
Meanwhile, on September
30, 1999, shortly before a conference scheduled by this court began, the
City filed an action for ejectment against the Museum in New York State
Supreme Court, Kings County. On the basis of that suit, the City invoked
the abstention principles of Younger v. Harris, 401 U.S. 37 (1971),
and asked this court to dismiss plaintiff’s claims for injunctive and
declaratory relief. At the conference, plaintiff was directed to file its
contemplated preliminary injunction motion on October 4, and defendants
were directed to file their abstention motion on the same date; limited
document and deposition discovery was authorized; an exchange of
affidavits, documents and briefs responding to the respective motions was
scheduled for October 7; and a hearing was scheduled for October 8. Neither
plaintiff nor defendants chose to present witnesses at the October 8
hearing. The parties’ requests for an opportunity to present additional
materials, including documents, affidavits, and supplemental briefs, were
granted. The parties filed their respective supplemental materials on
October 15; defendants filed a final responding declaration on October 21,
and plaintiff filed a clarifying letter in response to that declaration on
October 22. Numerous individuals and organizations have filed briefs amicus
curiae; they are identified in the Appendix. Based upon agreements
between the parties made in open court on October 20, certain allegations
regarding financial hardship in plaintiff’s supplemental submissions are
not being considered on the motion for a preliminary injunction.
The City’s state court
ejectment action alleges that the Museum forfeited its right to occupy the
premises by violating the Lease, the Contract, and the Museum’s enabling
legislation, in the following respects: (1) imposing a $9.75 admission
charge for the Exhibit, without the Mayor’s approval; (2) violating the
Museum’s obligation to "educate and enlighten school children and the
public" and to serve a public purpose, in that the Museum intended to
proceed with the Exhibit, which the City contends contains inappropriate,
"sensational" matter that is "offensive to significant
segments of the public;" and (3) improperly furthering "the
commercial interests of private parties," rather than public purposes,
because the works in the Exhibit come from the private collection of
Charles Saatchi, who is a client of Christie’s, the auction house, which
also gave financial support to the Exhibit.
As described above,
City officials had also claimed that the Museum’s decision to restrict
admission of children to the Exhibit violated the terms of the Lease,
which, they claimed, requires open and equal access to the Museum by
schoolchildren. Two days before the City initiated its ejectment action,
the Museum’s Board responded to this complaint by rescinding the
requirement that children under seventeen be accompanied by adults, and
instead posted warning notices.
At oral argument on
October 8, the City announced that it was abandoning two of the three
grounds for its ejectment action. The abandoned grounds are that the City
is entitled to eject the Museum based upon the admission charge, and upon a
perceived impropriety in the relationship among Mr. Saatchi, Christie’s and
the Museum. The City also abandoned any claim based upon the initial
restriction on the admission of minors. The City now claims a right to
eject the Museum based solely on its perception of the content of works in
the Sensation Exhibit. The defendants’ supplemental memorandum, filed after
oral argument, asserts that the First Amendment does not prohibit the City
from refusing to subsidize displays of art that are offensive and foster
religious intolerance; it does not rely upon either of the grounds
abandoned in the ejectment action.
ABSTENTION: THE MOTION TO DISMISS
The City and the Mayor
seek dismissal of this action, insofar as it seeks injunctive or
declaratory relief, in deference to a state court ejectment action filed by
the City two days after this action was filed. The City, recognizing that
the damages claim cannot be dismissed under abstention principles, see
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), also requests
this Court to stay determination of the damages claim in deference to the
state ejectment action. The motion is denied.
"Federal courts
have an unflagging obligation to adjudicate cases brought within their
jurisdiction. It is now black-letter law that abstention from the exercise
of federal jurisdiction is the narrow exception, not the rule." Cecos
International, Inc. v. Jorling, 895 F.2d 66, 70 (2d Cir. 1990); see
Quackenbush, 517 U.S. at 716. The City cannot oust the federal courts
of jurisdiction over a fundamental First Amendment dispute by asserting in
state court a landlord-tenant issue, especially one that, as will be seen,
is purely pretextual. There is no federal constitutional issue more grave
than the effort by government officials to censor works of expression and
to threaten the vitality of a major cultural institution, as punishment for
failing to abide by governmental demands for orthodoxy. The defendants have
not shown that the plaintiff, having properly invoked this court’s
jurisdiction, must instead assert its First Amendment claims as
counterclaims to an ejectment action.
I. Principles of Younger
Abstention
Younger v. Harris, 401 U.S. 37 (1971), relying on
principles of federalism and comity, required the federal courts to abstain
from interfering with an ongoing state criminal proceeding, even though the
defense was that the statute under which the prosecution was brought
violated the First Amendment. Nothing in that case, or in the cases
since Younger which have applied the doctrine to certain types of
civil actions, requires abstention here. Younger abstention requires
that each of the following requirements be satisfied: 1) there is an
ongoing state proceeding that will be disrupted by the federal suit; 2) an
important state interest is implicated; and 3) the plaintiff has an avenue
open for review of its constitutional claims in the ongoing state
proceeding. See, e.g., Hansel v. Town Court, 56 F.3d 391, 393
(2d Cir.), cert. denied, 516 U.S. 1012 (1995). None of these
requirements is met here.
To begin with, there
simply was no ongoing state proceeding at the time the Museum brought its
federal suit. "A federal court need not stay its jurisdictional hand
when there is no state action pending at the time the federal suit is
filed, even if there is a substantial likelihood that a state proceeding
will be instituted in the future to vindicate the state’s interests." Cecos
International, 895 F.2d at 72; see Steffel v. Thompson, 415 U.S.
452, 462 (1974). Hicks v. Miranda, 422 U.S. 332, 349 (1975), upon
which defendants rely, applied Younger where state criminal
proceedings had not yet begun against the federal plaintiffs when the
federal complaint was filed, but no proceedings of substance had taken
place in federal court. It has no application here. In Hicks,
extensive criminal proceedings in an obscenity case involving a theater
owned by, and employees of, the federal plaintiffs were in progress, and
the federal plaintiffs had appeared in those proceedings. Thus, an ongoing
state criminal process was disrupted by the federal court’s intervention.
The Museum’s federal action did not threaten to disrupt an ongoing state
proceeding, much less a criminal proceeding.
Second, the City cannot
establish the important state interest necessary to apply Younger in
this civil case. As the Supreme Court stated in New Orleans Pub.
Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989),
in rejecting a claim that the federal court should abstain in deference to
a state court action in a rate-making proceeding:
Although our concern
for comity and federalism has led us to expand the protection of Younger
beyond state criminal prosecutions, to civil enforcement proceedings . . .
and even to civil proceedings involving certain orders that are uniquely in
furtherance of the state courts’ ability to perform their judicial
functions . . . it has never been suggested that Younger requires
abstention in deference to a state judicial proceeding reviewing
legislative or executive action. Such a broad abstention requirement would
make a mockery of the rule that only exceptional circumstances justify a
federal court’s refusal to decide a case in deference to the States.
Id. at 367-68 (citations omitted).
An ejectment action is neither a "civil enforcement proceeding"
nor one "uniquely in furtherance of the state courts’ ability to
perform their judicial functions." It is a landlord-tenant action that
is routinely available in disputes between private parties. And the proper
inquiry is "the importance of the generic proceedings to the
State," id. at 365, not the importance of the state’s interest
in the particular case.
In Philip Morris, Inc.
v. Blumenthal, 123 F.3d 103 (2d Cir. 1997), the Court held that Younger
abstention was not warranted where the State had sued tobacco companies
in state court seeking injunctive relief and damages under Connecticut’s
unfair trade practices law ("CUTPA"), state antitrust law, and
state common law for the costs of treating tobacco-related illnesses. The
Court rejected the State’s argument that an important state interest was
involved in the state court litigation, on the ground that "the state
action does not appear to differ greatly from a private action under CUTPA,
and the mere fact that the state is involved as a party does not transform
the action into a ‘sovereign enforcement’ proceeding." Id. at
107. Similarly, that the City is involved as a party does not transform an
ejectment action into an enforcement proceeding.
The City argues that
this case, unlike a private landlord-tenant dispute, involves important
questions regarding proper use of public property and public funds. Use of
"public funds," however, is not an issue in an ejectment action,
and there is nothing inherently significant in a government landlord’s
claim of a lease violation by a tenant, even one which is publicly chartered
and publicly subsidized. To be sure, this is no ordinary landlord-tenant
dispute. But the importance of this litigation arises from the significance
of the First Amendment issues involved; and it is precisely for that reason
that the federal interests are supreme and that the federal courts should
not be ousted of jurisdiction.
Finally, the state
ejectment action will not give the Museum the kind of opportunity to
present its constitutional claims that Younger abstention requires.
Unlike the situation in Younger and cases relying on Younger,
resolution of the City’s claimed right to evict the Museum will not
necessarily require determination of any First Amendment issues. For
example, the Museum could be successful on the claim of a lease violation
without the state court ever reaching First Amendment issues. Even if it
did reach them, the ejectment claim does not encompass the Museum’s
additional claims regarding actual and threatened termination of funding
and efforts to remove its Board of Trustees. Thus, the defendants’ argument
that plaintiff’s federal claims will be central to resolution of the
ejectment action is rejected.
The defendants’ further
argument, that the Museum can, in any event, obtain resolution of its First
Amendment claims by filing counterclaims to the ejectment action,
fundamentally misapprehends the limits of abstention. The mere fact that a
state court of general jurisdiction can entertain any claim between two
parties properly before it is too insubstantial a basis for compelling a party
which wishes to bring federal constitutional claims in federal court to
present those claims to a state court instead. There is little difference
between what the defendants seek here and compelling a plaintiff to bring a
federal civil rights claim in state court in the first instance simply
because a state forum is always available to hear it. Defendants’ reliance
on a footnote in Moore v. Sims, 442 U.S. 415, 430 n.12 (1979), which
rejected "mere semantical" distinctions between a
"defense" and a "counterclaim," is misplaced. The Court
viewed the state child abuse proceedings involved in Moore as
implicating an important state interest closely analogous to the state’s
enforcement of its criminal laws. In addition, unlike here, the federal
court was asked to interfere with an ongoing state proceeding, and one
which involved a complex state statutory scheme. The Court’s confidence, in
Moore, that all of the federal plaintiffs’ constitutional claims,
however labeled, would be resolved in the state court action does not mean
that every time a plaintiff seeks to vindicate federal constitutional
rights in federal court, the governmental defendant can force the plaintiff
into state court by filing a different lawsuit there.
II. The Younger Exception
Even if the three
required elements for Younger abstention were established,
abstention nevertheless is inappropriate if the state proceedings were
initiated in bad faith, for purposes of harassment, retaliation or other
improper motive, or in other extraordinary circumstances. Cullen v.
Fliegner, 18 F.3d 96, 103-04 (2d Cir. 1994); see Moore, 442 U.S.
at 432-33; Huffman v. Pursue, Ltd., 420 U.S. 592, 611-12 (1975); Younger,
401 U.S. at 53-54. Generally, such a showing can be made if the party
bringing the state action can "have no reasonable expectation of
obtaining a favorable outcome." Cullen, 18 F.3d at 103; cf.
Allee v. Medrano, 416 U.S. 802, 819 & n.14 (1974). It can also be
made, even if there is a reasonable expectation of success, if the state
action "has been brought to retaliate for or to deter constitutionally
protected conduct." Cullen, 18 F.3d at 103.(Footnote 1) Here,
both such circumstances exist.
The City’s attempt to
distinguish Cullen, by arguing that "the state action is not
punishment for something else plaintiff did in the past nor is it a sham
intended to deter future speech" is unpersuasive. The ejectment action
is "punishment for something else" — the Museum’s refusal
to stop the Exhibit — and it is a "sham intended to deter
future speech." The undisputed record demonstrates that the Mayor and
other senior City officials were offended by the content of the Exhibit, as
they stated from the beginning, and then sought to find a basis in the
pertinent legal instruments which could plausibly justify their
determination to compel the Museum to remove certain offending works from
the Exhibit or cancel the Exhibit, or, failing that, to deprive the Museum
of funding and seek replacement of its Board.(Footnote 2) The City’s rapid
abandonment of two of the three grounds of its action, see supra at
14, supports this conclusion, as does the absence of evidence in the record
for the one remaining ground in the ejectment action. See infra at
33-35.
Thus, the state court
action was conceived and initiated as an instrument to pressure the Museum
and to compel it to cancel the Exhibit or remove specific objectionable
works, without any reasonable expectation by the City that it could prevail
on the merits of an action for ejectment, and it is part of an ongoing effort
to retaliate against and deter plaintiff’s exercise of First Amendment
rights. The federal courts are not divested of jurisdiction in deference to
such governmental purposes, nor to a municipality’s preference to litigate
federal constitutional issues in state court.
THE FIRST AMENDMENT CLAIM:
THE MUSEUM’S MOTION FOR A PRELIMINARY INJUNCTION
I. Standard for
Issuing a Preliminary Injunction
A party seeking a
preliminary injunction must ordinarily demonstrate (a) irreparable harm and
(b) either (1) likelihood of success on the merits or (2) sufficiently
serious questions going to the merits to make them a fair ground of
litigation and a balance of hardships tipping decidedly in its favor. Time
Warner Cable of New York City v. Bloomberg L.P., 118 F.3d 917, 923 (2d
Cir. 1997). The defendants argue that the second, lesser standard is
inapplicable to them as governmental actors, but the kind of governmental
conduct entitled to a "higher degree of deference" and therefore
requiring a showing of a likelihood of success on the merits, see Able
v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (per curiam), is not
involved in this case, where defendants essentially rely on the Lease,
which restates the purposes of the enabling legislation, and the
Contract.(Footnote 3) In any event, as will be seen, the Museum easily
establishes a likelihood of success on the merits.
II. Irreparable Harm
The Museum is suffering
and will continue to suffer irreparable harm if an injunction is not
granted. "The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury."
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); Bery
v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996), cert. denied
520 U.S. 1251 (1997). Because of this, it is sometimes said that "when
an injunction is sought to protect First Amendment rights, likelihood of
success on the merits and irreparable harm merge into a single threshold
requirement." 801 Conklin St. Ltd. v. Town of Babylon, 38
F.Supp.2d 228, 235 (E.D.N.Y. 1999) (citations omitted); Blum v. Schlegel,
830 F.Supp. 712, 723 (W.D.N.Y. 1993), aff’d, 18 F.3d 1005 (2d Cir.
1994) (citations omitted). See also Beal v. Stern, 184 F.3d 117,
123-124 (2d Cir. 1999).
The City and the Mayor
argue that there is no irreparable injury because the Museum has not shown
that the withholding of funding prevented it from showing the Sensation
Exhibit or that the loss of its operating and maintenance subsidy will
force the imminent closing of the Museum. Counsel for defendants further
stated at oral argument that the City’s own ejectment suit cannot be a
sound basis for a preliminary injunction motion because the suit has just
begun and, "in the event that that particular action gets to a
critical stage," the motion can be renewed. These arguments ignore the
very reason that interference with First Amendment rights constitutes
irreparable injury.
This is not a case
involving the mere assertion of an incidental infringement of First
Amendment rights insufficient to establish irreparable harm. See e.g.
Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.), cert. denied 493
U.S. 848 (1989). Nor does the Museum rely on remote or speculative fears of
future retaliation. See, e.g., Latino Officers Association v. Safir,
170 F.3d 167, 171 (2d Cir. 1999); Alvarez v. City of New York,
2 F.Supp.2d 509, 513 (S.D.N.Y. 1998). The Museum has already suffered
direct and purposeful penalization by the City in response to its exercise
of First Amendment rights. First, the City has cut off appropriated
funding. Second, the City has sued in state court to evict the Museum from
the property which it has occupied for over one hundred years and in which
it houses its enormous collections of ancient and modern art. In its
abstention motion, the City asks the court to treat its ejectment suit as
brought in good faith, that is, as brought with the goal of ejecting the
Museum. It cannot on the one hand seek so serious a penalty (it could,
after all, have brought only a declaratory judgment action) and on the
other hand claim that no harm is imminent. For a museum of the magnitude of
the Brooklyn Museum, planning for a move of one and a half million art
objects would obviously be a monumental task. Given the finding of a
likelihood of success on the merits of the Museum’s claim of a First
Amendment violation, the Museum should not have to wait until a City
sheriff is at the door to seek equitable relief.
In addition, the facts
establish an ongoing effort by the Mayor and the City to coerce the Museum
into relinquishing its First Amendment rights. On September 24, the Mayor
stated that "since they [the Museum Board members] seem to have no
compunction about putting their hands in the taxpayers’ pockets . . . and
throwing dung on important religious symbols, I’m not going to have any
compunction about trying to put them out of business, meaning the
board." Then, on September 28, the Mayor went on to state that
"[t]he Corporation Counsel told them what we’re going to do, the lease
tells us what we’re required to do, which is to evict them and to stop
dealing with them as a board. We’ll do that over a period of time. We’ll
hold back their funds because they are not a properly constituted board at
this point and then over a period of time there will be a substitute board
put in place."
That the Museum has so
far stood up to these efforts does not deprive it of the right to
injunctive relief. The prospect of money damages does not cure the
irreparable injury of an already existing, purposeful penalization for the
exercise of First Amendment rights. Nor must the Museum endure ongoing
efforts to coerce the relinquishment of those rights, including the
continuing threat of ejectment, because money damages are available at the
conclusion of the suit. Irreparable injury has been established.
III. The Museum’s
Likelihood of Success on its First Amendment Claim
"If there is any
fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion. . . ." West
Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). In
keeping with that principle, the First Amendment bars government officials
from censoring works said to be "offensive," Texas v. Johnson,
491 U.S. 397, 414 (1989), "sacrilegious," Joseph Burstyn, Inc.
v. Wilson, 343 U.S. 495, 531 (1952), "morally improper," Hannegan
v. Esquire, 327 U.S. 146, 149 (1946), or even "dangerous," Regan
v. Taxation with Representation of Washington, 461 U.S. 540, 548
(1983). "If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable." Texas v. Johnson, 491 U.S. at 414.
In Hannegan, for
example, the Supreme Court held that the Postmaster General could not deny
second-class postal privileges to a magazine, admittedly not containing
material that was obscene and therefore illegal, because it was found by
him not to be conducive to the "public good." Hannegan,
327 U.S. at 149. In Joseph Burstyn, Inc., 343 U.S. at 531, the
Supreme Court found the First Amendment violated by a New York statute
authorizing denial of a license to motion pictures found to be
"sacrilegious." While noting the "substantial
questions" that might be raised under the religion clauses of the
First Amendment if a censor had to determine what fell within the standard,
the Court said:
However, from the
standpoint of freedom of speech and the press, it is enough to point out
that the state has no legitimate interest in protecting any or all
religions from views distasteful to them which is sufficient to justify
prior restraints upon the expression of those views. It is not the business
of government in our nation to suppress real or imagined attacks upon a
particular religious doctrine, whether they appear in publications,
speeches, or motion pictures.
343 U.S. at 505.
Similarly, in Spence
v. Washington, 418 U.S. 405 (1974), the Supreme Court struck, on First
Amendment grounds, a flag misuse statute as applied to a college student
who hung an American flag with a peace symbol on it upside down out of his
window. Among the grounds considered and rejected for upholding the
judgment against the student, the Court noted: "that the State may
have desired to protect the sensibilities of passersby" is not a basis
for suppressing ideas, and that "[a]nyone who might have been offended
could easily have avoided the display." Spence, 418 U.S. at
412. Thus, "[u]nder our system of government there is an accommodation
for the widest varieties of tastes and ideas. What is good literature, what
has educational value, what is refined public information, what is good
art, varies with individuals as it does from one generation to
another." Hannegan, 327 U.S. at 157 (footnote omitted).
The City and the Mayor
acknowledge that the art being shown at the Museum and the ideas which they
find that art to express are within the protections of the First and
Fourteenth Amendments. Contrary to their assertions, however, although they
did not physically remove the art objects from the Museum, they are not
insulated from a claim that they are violating the overwhelming body of
First Amendment law establishing that government cannot suppress ideas
indirectly any more than it can do so directly.
Governmental efforts to
suppress expression can take many forms, and the courts have not hesitated
to invalidate those efforts, no matter how indirect the form. In Speiser
v. Randall, 357 U.S. 513 (1958), for example, the Supreme Court noted
that "[t]o deny an exemption to claimants [of property tax exemptions]
who engage in certain forms of speech is in effect to penalize them for
such speech. Its deterrent effect is the same as if the State were to fine
them for this speech." 357 U.S. at 518. In Hannegan, the Court
recognized that "[t]he second-class [mail] privilege is a form of
subsidy," 327 U.S. at 151 (footnote omitted), and found that the
denial of the privilege based on the immorality of a publication amounted
to illegal censorship. Id. at 157.
In yet another line of
cases illustrating that freedom of speech cannot be subjected to indirect
violations, the Supreme Court has held that the First Amendment protects
government employees and those who have independent contracts with the
government from termination based solely on speech found offensive
to the government. See, e.g., Bd. of County Commissioners, Wabaunsee
County, Kansas v. Umbehr, 518 U.S. 668 (1996); Perry v. Sindermann,
408 U.S. 593 (1972). For example, in Perry, the Supreme Court held
that a professor at a State college who lacked any contractual or tenure
right to re-employment could not be denied renewal of his contract on the
ground that he had publicly criticized the policies of the college
administration. The Court stated:
For at least a
quarter-century, this Court has made clear that even though a person has no
‘right’ to a valuable governmental benefit and even though the government
may deny him the benefit for any number of reasons, there are some reasons
upon which the government may not rely. It may not deny a benefit to a
person on a basis that infringes his constitutionally protected interests —
especially, his interest in freedom of speech. For if the government could
deny a benefit to a person because of his constitutionally protected speech
or associations, his exercise of those freedoms would in effect be
penalized and inhibited. This would allow the government to ‘produce a
result which (it) could not command directly.’ Such interference with
constitutional rights is impermissible.
408 U.S. at 597
(citation omitted).
In many different
contexts, then, the Supreme Court has made clear that, although the government
is under no obligation to provide various kinds of benefits, it may not
deny them if the reason for the denial would require a choice between
exercising First Amendment rights and obtaining the benefit. That is, it
may not "discriminate invidiously in its subsidies in such a way as to
‘aim [] at the suppression of dangerous ideas.’" Regan, 461
U.S. at 548 (citation omitted).
The decision to
withhold an already appropriated general operating subsidy from an
institution which has been supported by the City for over one hundred
years, and to eject it from its City-owned building, because of the Mayor’s
objection to certain works in a current exhibit, is, in its own way, to
"discriminate invidiously in its subsidies in such a way as to ‘aim []
at the suppression of dangerous ideas.’" Id. "The
Government’s purpose is the controlling consideration" in determining
whether a restriction on speech is viewpoint discriminatory. Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989). By its own words, the
City here threatened to withhold funding if the Museum continued with its
plans to show the Exhibit. When the Museum resisted, the City withheld its
funding and filed a suit for ejectment. While initially the City engaged in
various claims of a violation of its Lease and Contract, unrelated to the
content of the Exhibit, the City has now admitted the obvious; it has
acknowledged that its purpose is directly related, not just to the content
of the Exhibit, but to the particular viewpoints expressed. There can be no
greater showing of a First Amendment violation.
In a case remarkably
similar to this one, Cuban Museum of Arts and Culture, Inc. v. City of
Miami, 766 F. Supp. 1121 (S.D. Fla. 1991), the City of Miami was
enjoined from refusing to renew an expired lease with the Cuban Museum
because the Court held that the City had violated the museum’s First
Amendment rights, in that the refusal to renew was motivated by the City’s
opposition to the museum’s exhibition of works of Cuban artists who
were either living in Cuba or who had not denounced Fidel
Castro. These works were highly offensive to a large segment of the Cuban
population of Miami. The Court found that the exhibition was fully
protected by the First Amendment, that the absence of a "right"
to renewal did not defeat the First Amendment claim, and that the claimed
lease violations were pretextual. See Cuban Museum, 766 F. Supp. at
1126-27 ("the Conduct of the City Commission with respect to the
asserted grounds for the denial of continued possession reveals that the
reasons asserted were either minor concerns or a pretextual basis upon
which to remove the Cuban Museum and its present directors"). It found
that the "City would not have acted to deny the plaintiffs’ continued
use and possession of the premises but for the plaintiffs’ controversial
exercise of their First Amendment rights." Id. at 1129. The
same is true here.
The cases establishing
the principle that the government cannot avoid the reach of the First
Amendment by acting indirectly rather than directly also illustrate the
fallacy in the claim of the Mayor and the City that, while the Exhibit can
be shown privately, "the taxpayers don’t have to pay for it."
Federal taxpayers in effect pay for the mailing of periodicals that many of
them find objectionable; and they subsidize all manner of views with which
they do not agree, indeed, which they may abhor, through tax exemptions and
deductions given to other taxpayers. State taxpayers pay the salary for the
professor whom the State wants to fire for speaking out against the State
college. In sum, where the denial of a benefit, subsidy or contract is
motivated by a desire to suppress speech in violation of the First
Amendment, that denial will be enjoined. That is all that is involved here.
This of course does not
mean that the taxpayers are being required to "support" a
particular viewpoint. On the contrary, the Supreme Court has rejected
similar justifications for the suppression of ideas. For example, in F.C.C.
v. League of Women Voters, 468 U.S. 364 (1984), the Supreme Court
struck as unconstitutional a statutory provision that forbade noncommercial
stations, which receive a grant from the Corporation for Public
Broadcasting, to "engage in editorializing." With the following
language, the Court rejected the contention that the provision could be
defended on the ground that it was "intended to prevent the use of
taxpayer moneys to promote private views with which taxpayers may
disagree":
This argument is
readily answered by our decision in Buckley v. Valeo, 424 U.S. 1,
90-93, . . . passim (1976) (per curiam). As we explained in that
case, virtually every congressional appropriation will to some extent
involve a use of public money as to which some taxpayers may object. . . .
Nevertheless, this does not mean that those taxpayers have a
constitutionally protected right to enjoin such expenditures. Nor can this
interest be invoked to justify a congressional decision to suppress speech.
468 U.S. at 385 n. 16
(citations omitted).
Clarifying what the
case at bar is not about will further illustrate the distinction
between requiring the taxpayer to support a particular point of view, which
is not involved here, and barring government officials from invidiously
discriminating against ideas they find offensive, either to themselves or
to members of the community.
First, there is no
issue presented here about the City’s right to itself take positions, even
controversial ones. The Museum does not challenge the principle that
government may choose, through its funding, to espouse a viewpoint on a
matter of public concern without, as a result, being required to give equal
time to an opposing view. See Rust v. Sullivan, 500 U.S. 173
(1991). Thus, the doctrine of Rust, upon which defendants rely, has
no relevance here. That is, the Mayor and the City are permitted to foster
the values that they claim to be seeking to foster, such as respect for the
most dearly held beliefs of others and lack of vulgarity in art. As the
Court stated in Barnette, 319 U.S. at 640, however, "[n]ational
unity as an end which officials may foster by persuasion and example is not
in question. The problem is whether under our Constitution compulsion as
here employed is a permissible means for its achievement." Indeed, the
notion that government officials can stifle expression in order to protect
the public good reverses our most basic principles. As Justice Jackson so
compellingly described in Barnette, in striking a compulsory flag
salute and pledge of allegiance statute:
Government of limited
power need not be anemic government. Assurance that rights are secure tends
to diminish fear and jealousy of strong government, and by making us feel
safe to live under it makes for its better support. Without promise of a
limiting Bill of Rights it is doubtful if our Constitution could have
mustered enough strength to enable its ratification. To enforce those
rights today is not to choose weak government over strong government. It is
only to adhere as a means of strength to individual freedom of mind in
preference to officially disciplined uniformity for which history indicates
a disappointing and disastrous end.
Id. at 636-37.
Second, the City and
the Mayor argue that, if they are not allowed to cut off all financial
support to the Museum as a result of its display of the Sensation Exhibit,
there will be no limit on what the public is required to support in the
name of the First Amendment. This is incorrect. The Museum makes no claim
in this case that government has an obligation to fund particular forums of
expression such as museums. See generally Regan, 461 U.S. at 540
(citations omitted). Nor is there an issue in this case as to whether the
City could be required to provide funding to support the Sensation Exhibit
or any other particular exhibit, if the Museum had sought funding on an
exhibit-by-exhibit basis. The City has not in fact provided the funding —
some $2 million — to cover the various expenses involved in presenting the
Sensation Exhibit. Thus, the issue is not whether the City could have been
required to provide funding for the Sensation 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 the
Exhibit. The answer to that question is no.
The reliance of the
City and the Mayor on National Endowment for the Arts v. Finley, 524
U.S. 569, 118 S. Ct. 2168 (1998), as support for their claim that viewpoint
discrimination in arts funding is permissible, is misplaced. In Finley,
the Supreme Court rejected a facial challenge to a provision adding
"general standards of decency and respect for the diverse beliefs and
values of the American public" to the "considerations" to be
applied by the NEA in the awarding of grants to individual artists and arts
organizations. The Court described the provision’s legislative history,
including Congress’s rejection of language that would have prohibited
awards of grants that would have the purpose or effect of denigrating
particular religions, or of denigrating people on the basis of race, sex,
handicap, or national origin. 118 S. Ct. at 2173. It noted that,
ultimately, "[t]he legislation was a bipartisan proposal introduced as
a counterweight to amendments aimed at eliminating the NEA’s funding or
substantially constraining its grant-making authority." Id. at
2176. The Court also noted that "Congress declined to disallow any
particular viewpoints," id., and it went on to hold the
challenged provision facially constitutional upon finding that it
"[did] not preclude awards to projects that might be deemed ‘indecent’
or ‘disrespectful’ nor place conditions on grants. . ." and, further,
because the Court did "not perceive a realistic danger" that it
will be used "to effectively preclude or punish the expression of
particular views." Id. at 2175-77. Thus, even in Finley,
where the issue was the "considerations" that could apply in the
awarding of grants, unlike here, where funding has already been
appropriated for general operating expenses, the Supreme Court upheld the
"decency" and "respect" considerations only by reading
them, on their face, as not permitting viewpoint discrimination.
When questioned on oral
argument whether the City could direct a publicly supported library to
remove particular books on pain of a loss of financial support, counsel for
defendants responded that the visual art in the Exhibit has a greater
impact than do books. Counsel for the Museum, in reply, noted that books
like Mein Kampf have done enormous harm, but are still protected by
the First Amendment. The relative power of books and visual art is of
course immaterial. The communicative power of visual art is not a basis for
restricting it but rather the very reason it is protected by the First
Amendment. As recently stated by the Court of Appeals for the Second
Circuit, "[v]isual art is as wide ranging in its depiction of ideas,
concepts and emotions as any book, treatise, pamphlet or other writing, and
is similarly entitled to full First Amendment protection." Bery,
97 F.3d at 695. See also Ward, 491 U.S. at 790 (citations omitted),
where the Supreme Court, speaking of music, said:
From Plato’s discourse
in the Republic to the totalitarian state in our own times, rulers have
known its capacity to appeal to the intellect and to the emotions, and have
censored musical compositions to serve the needs of the state. . . . The
Constitution prohibits any like attempts in our own legal order.
In their supplemental
memorandum, the Mayor and the City argue that libraries are different from
art museums because they are less selective; unlike the works in museums,
they say, the inclusion of a book in a library carries "no connotation
of worthiness or endorsement of its content." On the contrary, public
libraries are, of physical and fiscal necessity, selective; they do not
contain every book published. And there is no basis in the record for
concluding that the Brooklyn Museum, with its one and a half million art
objects, any more than a public library, endorses the perceived content of
every work it makes available to the public. Whether or not the City and
the Mayor agree with the Museum’s judgment that a particular exhibit is
worthy of showing is no different, in constitutional terms, from whether or
not they agree that particular books are worthy of being made available to
the public in a public library.
The City and the Mayor
argue that they can avoid an injunction based upon the First Amendment
because the showing of the Sensation Exhibit violates the Museum’s
statutory purposes and the terms of its Lease and Contract with the City.
According to defendants, the withholding of financial support does not
reflect a violation of the First Amendment but only an effort to vindicate
the City’s contractual rights. As in the Cuban Museum case, this
claim is pretextual. See supra at 27-28. In addition, it is without
evidentiary basis. The language of the statutes, the Lease and the
Contract, and the undisputed evidence as to how the City itself has viewed
these documents, shows a high likelihood that the Museum will defeat any
claims that it is acting in violation of its statutory and contractual
purposes as an art museum providing the public with enjoyment and education
about art.
Whether the art shown
is perceived as offensive or respectful, vulgar or banal, "good"
art or "bad" art, the Mayor and the City offer no basis for the
court to conclude that the Exhibit falls outside the broad parameters of
the enabling legislation.(Footnote 4) Nor is there any basis for the City’s
accusation that the Museum has failed in its duty to educate.(Footnote 5)
As for the defendants’ emphasis on the unsuitability of the Sensation
Exhibit for children, they acknowledge that there is nothing in the Lease
or Contract which requires that every exhibit be suitable for
schoolchildren of all ages. Nor is there anything which prevents the Museum
from imposing reasonable restrictions on the access of schoolchildren to
certain exhibits, in order to accommodate the Museum’s undisputed right to
display what Deputy Mayor Lhota called "mature" works of
art.(Footnote 6)
There is also no
language in the Lease or Contract that gives the Mayor or the City the
right to veto works chosen for exhibition by the Museum. The Contract
provides for the City to make maintenance payments to the Museum, without
stating any conditions regarding the content of the Museum’s artworks. The
inability of the City and the Mayor to identify any standard for what
constitutes a Lease or Contract violation, other than the Mayor and Deputy
Mayor’s personal views, reinforces the conclusion that it has never been
contemplated that the City or the Mayor would have veto power over the
Museum’s decisions as to what to display.(Footnote 7) Deputy Mayor Lhota
testified that there are no rules, regulations or procedures or even an ad
hoc method for determining whether the City would view a particular
work as inappropriate. The City’s Procedures Manual confirms this.
That the advertising
for the Exhibit cautions viewers that "the contents of the exhibition
may cause shock, vomiting, confusion, panic, euphoria and anxiety" is
not, as the City urges, an admission by the Museum that the Exhibit
violates the Lease and Contract. Taking the advertising at face value
(although the City has also argued that it is a crude effort to attract
attention to the Exhibit), the City fails to show that art that is
considered shocking, provocative, or disturbing gives rise to a violation
of the Lease or the Contract.
The City and the Mayor
argue that, if the court enjoins the withholding of its subsidy, the Museum
will be free, under the protection of the First Amendment, to do anything
at all, even transform itself into, for example, a museum of pornography.
That, of course, is absurd. The Museum has been publicly supported for over
one hundred years as a broad-based art museum. If it now sold its
collections and became a pornography museum, the withholding of operating
subsidies and the claims of a lease or contract violation would arise under
vastly different facts from those presented here. The City and the Mayor
have not shown that the funding provided has not been spent for the purpose
authorized.
Finally, the City and
the Mayor argue that they have a "duty" to withdraw support for
the Museum because it showed paintings that are offensive and that
desecrate religion in a public building. Given the Mayor’s emphasis
on the anti-Catholic sentiment he finds in the Ofili work, and despite the
defendants’ explicit disavowal of reliance on the Establishment Clause on
oral argument, it is important to note the requirement that government
remain neutral with regard to religious expression, whether "it
manifest a religious view, an antireligious view, or neither." Rosenberger
v. Rectors and Visitors of the University of Virginia, 515 U.S. 819,
841 (1995). In Rosenberger, the Supreme Court held unconstitutional
a state university’s denial of funding to a student journal solely because
the journal espoused a Christian viewpoint. See generally Joseph
Burstyn, Inc., 343 U.S. 495.
It is undisputed that
the Museum’s permanent collections contain many reverential depictions of
the Madonna as well as other religious paintings and ritual objects. Just
as there is no suggestion that the Museum is violating the Establishment
Clause and endorsing religion by showing these works, see, e.g.,
Agostini v. Felton, 521 U.S. 203 (1997) and Lemon v. Kurtzman,
403 U.S. 602 (1971), there can equally be no suggestion that the Museum is
violating the Establishment Clause by showing Mr. Ofili’s work. The
question of endorsement is evaluated from the perspective of the
"objective observer." See Wallace v. Jaffree, 472 U.S. 38,
76 (1985) (O’Connor, J., concurring). The Brooklyn Museum contains art from
all over world, from many traditions and many centuries. No objective
observer could conclude that the Museum’s showing of the work of an
individual artist which is viewed by some as sacrilegious constitutes
endorsement of anti-religious views by the City or the Mayor, or for that
matter, by the Museum, any more than that the Museum’s showing of
religiously reverential works constitutes an endorsement by them of
religion. The suggestion that the Mayor and the City have an obligation to
punish the Museum for showing the Ofili work turns well-established
principles developed under the Establishment Clause on their head. If
anything, it is the Mayor and the City who by their actions have threatened
the neutrality required of government in the sphere of religion.
CONCLUSION
The City’s motion to
dismiss is denied. As the Museum has established irreparable harm and a
likelihood of success on its First Amendment claim, its motion for a
preliminary injunction is granted. An injunction, in the following form,
will issue:
The court having
granted plaintiff’s motion for a preliminary injunction pursuant to Federal
Rule of Civil Procedure 65 by opinion and order dated November 1, 1999:
Defendants the City of
New York and Rudolph W. Giuliani, individually and in his official capacity
as Mayor of the City of New York, and all those acting in concert with them
are hereby enjoined, during the pendency of this action, from inflicting,
or taking any steps to inflict, any punishment, retaliation, discrimination,
or sanction of any kind against the Brooklyn Institute of Arts and
Sciences, doing business as the Brooklyn Museum of Art as well as against
any of the Brooklyn Museum of Art’s directors, officers or representatives,
as a result of the Brooklyn Museum of Art’s displaying the Exhibit
"SENSATION: Young British Artists from the Saatchi Collection"
(the Exhibit), including but not limited to:
1.
withholding
or otherwise failing to provide the Brooklyn Museum of Art any sums of
money appropriated, allocated, promised or otherwise payable to the
Brooklyn Museum of Art;
- denying, delaying, or
otherwise discriminatorily treating pending or future funding requests
of any type as the result of the Exhibit;
- evicting or seeking to
evict the Brooklyn Museum of Art from its premises at 200 Eastern
Parkway, Brooklyn, or otherwise directly or indirectly interfering
with the Brooklyn Museum of Art’s occupancy and use of those premises,
including prosecuting against the Brooklyn Museum of Art the action
styled The City of New York v. The Brooklyn Institute of Arts and
Sciences, filed September 30, 1999 in the Supreme Court of the
State of New York, Kings County, Index No. 35376/99;
- interfering in any manner,
directly or indirectly, with the composition of the Board of Trustees
of the Brooklyn Museum of Art, other than those members of the Board
of Trustees who are the designees of the defendants, or interfering
with the Board of Trustees’ exercise of its authority.
The parties are directed to confer and to submit their
positions, in writing, on the giving of security pursuant to Rule 65(c), by
the close of business today.
SO ORDERED.
NINA GERSHON
United States District Judge
Dated: Brooklyn, New York
November 1, 1999
APPENDIX
The following have submitted briefs amicus curiae:
For the Plaintiff:
1) Local 1502, District Council 37, AFSCME, AFL-CIO.
2) Mark Green, Public Advocate for the City of New York,
Peter F. Vallone, Speaker of the New York City Council, C. Virginia Fields,
Manhattan Borough President, Fernando Ferrer, Bronx Borough President, City
Council Members Herbert E. Berman, Adolfo Carrion, Una Clarke, Lucy Cruz,
Stephen Di Brienza, Ronnie Eldridge, Pedro G. Espada, Kenneth K. Fisher,
Kathryn E. Freed, Julia Harrison, Lloyd Henry, Karen Koslowitz, Guillermo
Linares, Stanley Michels, Gifford Miller, Bill Perkins, Christine Quinn,
Phil Reed, Jose Rivera, Victor L. Robles, Angel Rodriguez, Annette
Robinson, and Archie Spigner, State Senator David Paterson, and Members of
the New York Assembly Jeffrion L. Aubry, Adele Cohen, Herman D. Farrell,
Jr., Richard Gottfried, Joan Millman, Scott Stringer and Edward C.
Sullivan.
3) The Municipal Art Society of New York, The
Metropolitan Museum of Art, Seattle Art Museum, People for the American
Way, American Association of Museums, Association of Art Museum Directors,
Nathan Cummings Foundation, American Booksellers Foundation for Free
Expression, Freedom to Read Foundation, Inc., New York Hall of Science, The
Wildlife Conservation Society, The New-York Historical Society, Museum of
Modern Art, and The Whitney Museum of American Art.
4) The New York Civil Liberties Union, The American
Civil Liberties Union Foundation, The Creative Coalition, The Center For Constitutional
Rights, and The National Coalition Against Censorship.
5) Pen American Center.
6) Volunteer Lawyers for the Arts, The Alliance of
Resident Theaters/New York, The Andy Warhol Foundation for the Visual Arts,
Inc., The Bronx Council on the Arts, The College Art Association, Dancing
in the Streets, The Irondale Ensemble Project, The Jewish Museum, The New
York City Arts Coalition, The New York Foundation for the Arts, Pentacle
(DanceWorks, Inc.), The St. Ann Center for Restoration and the Arts, Inc.,
Thalia Spanish Theaters, Theater Communications Group, and The Waterways
Project of Ten Penny Players, Inc.
For the Defendants:
1) Agudath Israel of America.
2) The Catholic League For Religious and Civil Rights.
3) Guy V. Molinari, Staten Island Borough President, and
New York City Council Members Stephen Fiala and James Oddo.
4) Joseph Bruno, President Pro Tem and Majority Leader
of the New York State Senate, John Faso, Minority Leader of the New York
State Assembly, Members of the New York State Senate, Serphin R. Maltese,
John Marchi, Frank Padavan, and Guy Velella, Members of the New York City
Council, James Oddo, Thomas V. Ognibene, and Stephen Fiala, and John
Sweeney, Member of the United States House of Representatives.
Footnotes
1 Schlagler v. Phillips, 166 F.3d 439 (2d Cir. 1999),
did not, as the defendants argue, confine Cullen to retaliation for past
actions that are not related to the subject of the state litigation.
Schlagler was a classic case for Younger abstention, involving an effort to
enjoin a pending state prosecution for aggravated harassment because of the
statute’s alleged unconstitutionality. Schlagler simply rejected an
overbroad reading of Cullen, which would have eliminated the very basis for
Younger abstention. Schlagler, however, did not limit Cullen. Rather,
Schlagler distinguished Cullen as a case where the school teacher “was
disciplined for protesting a school board’s elections in retaliation for
the exercise of his First Amendment right to protest.” Schlagler, 166 F.3d
at 442. In the present case, too, the City has brought a state court action
against the Museum, ostensibly for violating certain instruments and
statutes, but in reality because of activities that are protected under the
First Amendment.
2 City officials were advised of the Museum’s plan to
charge admission to the Exhibit in April 1999. Deputy Mayor Lhota first
thought of this possible ground for a claim against the Museum on September
22, 1999, after the Mayor had already communicated to the Museum, through
his Commissioner of the Department of Cultural Affairs, and had publicly
announced, his determination to terminate City subsidies to the Museum
unless it canceled the Exhibit or at least removed certain offending works.
Moreover, the first public statement by any City official objecting to the
admission charge was not made until September 28, 1999, and the City has
not controverted Museum Director Lehman’s sworn assertion that the City did
not communicate its objection to the admission charge earlier. The ground
for ejectment in the City’s complaint based upon the Museum’s alleged
furtherance of the “commercial interests of private parties” similarly was
never raised as a concern by the City until September 29, after the Museum
had already commenced this action and only one day before the City filed
its state court complaint.
3 In Able, the Court found only the likelihood of
success standard applicable where challenged governmental conduct was taken
pursuant to “legislation or regulations developed through presumptively
reasoned democratic processes,” for such conduct is “entitled to a higher
degree of deference and should not be enjoined lightly.” 44 F.3d at 131.
See Association of Legal Aid Attorneys v. City of New York, 1997 WL 620831,
*2 (S.D.N.Y. 1997) (denying lesser standard where governmental action was
taken in an effort to meet a statutory obligation). In contrast, where the
challenged governmental action is not the result of such processes, either
standard may be used. Thus, in Time Warner, the Court found both standards
applicable where the governmental action was not taken pursuant to the
“exercise of governmental regulatory authority” but was “‘proprietary’ in
nature.” 118 F.3d at 923-24. And in Haitian Centers Council, Inc., v.
McNary, 969 F.2d 1326, 1339 (2d Cir. 1992), vacated as moot sub nom. Sale
v. Haitian Centers Council, Inc., 509 U.S. 918 (1993), the Court noted that
“Congress’ broad grant of authority in the INA” is not sufficient, in the
absence of specific statutory authority, to require a showing of likelihood
of success where plaintiffs challenged conduct of the Immigration and
Naturalization Service.
4 The enabling Act describes the purposes of the
Brooklyn Institute of Arts and Sciences to include “the establishment and
maintenance of museums and libraries of art |
