Henry J. Stern
June 11, 2007

Today (Monday) we follow up on Friday's exploration of alleged art and the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."
ork, in a war memorial, to display art which includes, in one image, an erect penis rising from a nest of public hair, and clasped by someone's hand.

Another image consists of the trunk and arms of a nude male, with the caption: My screen name is Dick Cheney. The text describes a homosexual act alleged to have been performed by the Vice President.  We will not describe it here, but if you are sufficiently curious, you may link to it at the bottom of this article, since the 'artist' has placed it on the Intenet.  This raises the collateral issue of internet defamation, since if the material were published in a newspaper or magazine, or spoken on radio and television, it would give rise to a lawsuit for libel or slander,  since the allegations are obviously false.

 We wrote last week of the city's $56,750 payout to settle a lawsuit brought in Federal court in the Eastern District of New York, which includes Brooklyn, by shock artists whose puerile penile portraits, along with caged rats and a tableau of gay sex, were displayed in Brooklyn's War Memorial.  Let us make it clear that many of the 18 students' work was not objectionable.  Nothing here is intended to reflect on any individual artist; they are people we do not know, except for this example of their work.   In our account, we linked to a story in the Brooklyn edition of Thursday's Daily News, an editorial in Friday's News and a short piece in the Thursday..

We unconsciously and inexplicably neglected to cite a more prominent news story: the lead in Thursday's Sun, by Joseph Goldstein, APOLOGY BY CITY ON ART: It Settles Case Over a Protest at Memorial Site; and a powerful Sun editorial on the subject Thursday, THE WRONG APOLOGY.  We also missed The Times' account of the controversy: CITY SETTLES ART DISPUTE, by Felicia R. Lee, which appeared in the Arts, Briefly column compiled by Lawrence Van Gelder for Thursday's paper.
 
The Sun's lead story and editorial helped to call substantial public attention to the case, which appeared to some to be a miscarriage of justice.  Why should the taxpayers foot a lawyer's fees for promoting the display of obviously pornographic art at a war memorial?  We agree with the spirit of the editorial, with one cavil: The Corporation Counsel's job is to protect the city.  The settlement did not mean that the suit had merit, or that he agreed with it.  His judgment was that, under current law, the plaintiffs were likely to prevail, the judgment could be higher and the court's decision more adverse to the city if the case were not settled. 

Mayor Giuliani was much more likely to stand up for what he believed.  The city regularly lost cases that could have been settled for less money, or concluded with fewer hostile judicial decisions. But America’s mayor was unbowed, and stood up to the judges for what he believed was right.  If he reaches a position where he will be able to appoint or promote Federal judges, he may be treated more respectfully by the judiciary.   Then again, he may not be.
 
Two old sayings come to mind which relate to this situation.  We have googled them for your edification.
 
One is: "The only thing lower than a cop killer is the lawyer that gets him off."  That was said generations ago, and does not represent establishment values today.  It retains a certain resonance for the unreconstructed.
 
The other is: "Pay the two dollars."  That means: do not escalate a controversy that you are likely to lose. It may cost you much more in the end.
 
We do not suggest that every lawsuit against the city should be settled.  Some are truly on matters of principle, in which the city is on the honorable side. Many are tort cases, where in fact there has been no negligence or malpractice whatsoever..  The city's lawyers, however, know from experience that, when confronted with a brain-damaged baby and conflicting expert testimony, the jury will decide for the plaintiff.   In that case, you settle for a million dollars because you know the judgment could be ten million..
 
One occasional defendant, Donald J. Trump, told me that he never settles certain types of cases, even if it costs more to defend them than it would to settle. He said settlements simply encourage litigation by other people.  He should know.

 In the art show controversy, the city's case was weakened because the time to dispute the appropriateness of proposed art displays is before one consents to having it mounted in a public exhibition, rather than when it is on display.  And  the decision  to remove the work was made at a borough level, without consulting the Parks Commissioner or the agency's General Counsel.  Rule 18-A: "Ask your lawyer first."
 
What is overlooked in talking about this case is that none of this student work is being suppressed. or forbidden to be exhibited.  It can be displayed at Brooklyn College, the site of its creation, or at any privately owned location or gallery that wishes to show it.  We are told that it is, appropriately, going to Dumbo (Down Under the Manhattan Bridge Overpass), a trendy neighborhood with an elephantine acronym.

The issue here is whether public officials have any discretion in what kind of art they display in public places..  Can they decline to display infantile, sexist, racist or homophobic art if they feel it is vulgar and offensive?   Is the City of New York legally bound to exhibit, even in a memorial dedicated to war heroes,  anything that a student draws to express his inner self or his hatred of authority.
 
We have been able to obtain the work of one student, and you can link to it here. If the other students who contributed to the exhibition get in touch with us and send us links to their art, we will display their work as well.  People who want to see it will be able to link to it.   Then our readers can judge for themselves the quality of the artwork .  Of course, quality is not the issue when artistic freedom is said to be at stake.  But curiosity may induce some of you to see just what it is we are describing so gingerly.  For the literati, we have learned that it is called "transgressive art."

 
#383  6.11.07  1130wds