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."