Wednesday, December 22, 2010

Finally, a serious response to the potentially unconstitutional censorship by the Smithsonian

WASHINGTON DC. Although First Amendment issues generally fall outside this blog's main focus within art law, I had to write this post to commend the Warhol Foundation's decision to pull its funding of the Smithsonian if David Wojnarowicz's 1987 video "Fire in My Belly" is not reinstated in the exhibition "Hide/Seek." The Smithsonian's capitulation to the pressure exerted by the Catholic League and two certain Republican lawmakers (who threatened to pull federal funding of the nation's preeminent art institution) by conceding to the removal of the work from the show is a lamentable assault on the First Amendment. Protesting liberals have since voiced their concern about this infringement of the nation's most sacred constitutional right but none have gone as far as the Warhol Foundation. It's all very well to protest and point a finger but what was really needed was a serious and genuinely meaningful reaction like the Foundation's. Artworld Salon commends it and so do I. I just read in The Art Newspaper that "Jim Hedges, a hedge-fund specialist and art aficionado, has written to Martin Sullivan, director of the National Portrait Gallery in Washington, DC, requesting that his loaned work "Untitled, Self-Portrait" by Jack Pierson be removed from the Hide/Seek NPG exhibition "until such time as the David Wojnarowicz video is reinstated in its full unedited version."" Hedges is also urging others who have loaned works to the institution for said exhibition to do the same. Another commendable reaction. The one I'm most hoping for is a constitutional attack on the institution's conduct in a court of law. Question is whether a federal court will hear such a claim. The constitution applies to governmental actors so the fact that the institution receives federal funding will help but who will have standing to bring the claim? The deceased artist's estate on his behalf is the best bet but potentially others too. Do we think the courts will rule that the video is "hate speech" (i.e. unprotected speech under the First Amendment)? Hopefully a landmark decision for the arts and for our constitutional right to freedom of speech.

UPDATE: artist AA Bronson had asked that his work be removed from "Hide/Seek" in protest of the Wojnarowicz debacle arguing that to not do so would violate his moral rights under Canadian and US law. Sergio Sarmiento (author of the blog "Clancco" and Associate Director of the VLA) and Donn Zaretsky do not agree at least from a US law perspective. Sergio writes: "it does not seem to us that under the 1990 Visual Artists Rights Act the NPG would be violating Bronson’s moral rights simply by exhibiting the work within a context and/or exhibition that Bronson did not like or approve of. If this were the case, artists could dictate and–ironically–censor the speech of individuals whom they did not identify with ideologically. Interesting move though."


  1. Because the Smithsonian is a Federal agency with a long history of public service, Constitutional issues are far more explicit and unavoidable in this case. So much so that my best guess is that Donohoe (the Gauleiter of the Catholic League) and Eric Cantor were quite surprised when Secretary Clough first caved in and then ran off and hid from the press. Most people I know still think Sullivan, the director of the NPG, was responsible for yanking Wojnarowicz's work from the show. Clough's behavior has been so odd, and his disappearance so complete that I've begun to worry about him. Maybe, like Vince Foster, he's not equipped for the way people do business in Washington.

    Cantor was, in my estimation, just jumping on an opportune little event, expecting the Smithsonian to support its curators (at least in the short run). He has enough to do right now that an actual war with the liberals over a constitutional matter in which he would be clearly in the wrong would cost him more than it would be worth. But where are those liberals? This is a great opportunity for them to make some hay. Are they afraid this will just be seen as a gay rights issue? Can they be that stupid?

    And where are the strict constitutionalists? This is a simple open and shut Establishment Clause case. If American liberals aren't willing to fight this one, when will they finally show some spine? Will they (Obama) give up on science education and let the creationists cripple it? If they're willing to back down to Donohoe, will they do the same for Fred Phelps?

  2. You are very correct in pointing out that the Smithsonian receives Federal funding. I think the biggest crime here is the political and social one-sidedness that exhibits like Hide/Seek have promoted for years without visual opposition.

    One issue splintering from this censorship scandal is the fact that Federal funded museums continue to allow curators and directors to push one-sided agendas down the sockets of the viewing public. If you want to discuss a real issue of the constitution why not discuss artwork that stands no chance of being exhibited simply because the works speak out against key liberal political and social issues!

    There are millions of tax payers who help fund these institutions who are not seeing their thoughts reflected in curatorial choices. The time for balance is now. The time for a select group of 'professionals' using Federal dollars to promote the agendas they believe in is over.

    Welcome to the conservative art revolution and thanks to all the liberals who have opened the door for us to finally shine! It is time for Federal funded art museums to finally refect the population as whole instead of catering to one political and social way of thinking.

  3. Right now we have an art world that finds images of Christ being sodomized acceptable and labels images of other religious figures, such as the Islamic prophet, in the same situation as 'hate'. People are tired of these Leftist contradictions. I find it petty when the majority of curators, and gallery owners whine about censorship when they censor the flip side of the coin daily.