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November 01, 1999 07:38pm
Judge Restores Museum Funding
Source: Court TV
by: Laura Barandes

(NEW YORK, NY) -- New York Mayor Rudolf Giuliani has seen his argument against the Brooklyn Museum of Art turned on its head. On Monday, U.S. District Judge Nina Gershon granted the museum's request for an preliminary injunction against the mayor and city officials. In her 40-page opinion, Judge Gershon concluded that the museum "has established irreparable harm and a likelihood of success on its First Amendment claim."

In many ways, Judge Gershon seemed to suggest that the mayor and city officials were themselves causing more harm to the social fabric than has the art they so ardently oppose.

In her opinion, the judge wrote that "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." This, the judge suggested, came at the deliberate expense of the First Amendment.

Judge Gershon's order bars the mayor from "taking steps to inflict any punishment, retaliation, discrimination or sanction" against the museum due to its controversial exhibit "Sensation."

"The judge is totally out of control," Giuliani said during an upstate New York outing. He accused Judge Gershon of "abandoning all reason under the guise of the First Amendment."

An attorney for the museum, Floyd Abrams, called Gershon's decision "a victory not only for the Brooklyn Museum but for the First Amendment rights for all of us."

The museum sued the city last month, claiming its First Amendment rights had been violated by Giuliani's decision to freeze a $7.2 million subsidy — about a third of its annual budget. It sought the injunction to restore funds until the legal dispute could be settled.

The art war broke out at a Sept. 22 news conference, when the mayor called the exhibit of works by young British artists — which features a portrait of the Virgin Mary adorned with elephant dung — "sick," sacrilegious and unworthy of taxpayer support.

After the museum refused to cancel the show, the city withheld a $497,554 payment for October, then sued in state court to evict the museum from a city-owned site it has leased for more than 100 years.

At a hearing before Judge Gershon, Abrams accused the city of trying to punish free speech and called the city's behavior "a First Amendment catastrophe."

At one point in oral arguments, the city was asked whether it could similarly direct a library to remove what it deemed "offensive" or "objectional." Lawyers for the city argued that "the visual art in the Exhibit has a greater impact than do books."

In response — and with a dry humor that leaks from the written decision — counsel for the Museum "noted that books like Mein Kamph have done harm but are still protected by the First Amendment."

Moreover, in her decision, Judge Gershon wrote : "The communicative power of visual arts is not a basis for restricting it but rather the very reason it is protected by the First Amendment."

In fact, the City's own representative on the Museum's Board of Trustees wrote a letter months before "Sensation" came to town expressing interest in the Exhibit which he said seemed designed to "shake up New York's art world."

At least there is no argument about that.

City officials said they would appeal.

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