Jewish Law Logo Jewish Law - Examining Halacha, Jewish Issues and Secular Law
Brooklyn Institute of Arts and Sciences v. City of New York and Rudolph W. Giuliani
United States Court of Appeals





Agudath Israel of America respectfully submits this amicus curiae brief, upon the consent of the parties, in support of defendants’ appeal from the District Court’s issuance of a preliminary injunction.

At stake in this case is the ability of New York City’s duly elected representatives to require a publicly-funded cultural institution housed on municipal property to adhere to minimal standards reflecting the moral sensibilities of the city’s populace. The outcome will determine whether a museum that was founded, and continues, to play a leading role in the cultural education of this city’s youth, can be expected to choose the content of its exhibits with its educative mission uppermost in mind.

Agudath Israel is a 77-year-old national Orthodox Jewish organization. Many of Agudath Israel’s constituents reside in New York, with particularly heavy concentration in Brooklyn. Agudath Israel’s constituency includes large numbers of families with young children; New York State Education Department figures indicate approximately 100,000 children enrolled in Jewish schools across the state. Agudath Israel has accordingly long been concerned about quality of life issues in New York – especially those that impact upon the ability of religious communities like ours to practice their faith free of bigotry and discrimination, while enjoying full access to the opportunities and benefits available to members of the broader civil society; and especially those that affect the moral climate in which children are being raised during these challenging times.

The controversy in this case raises precisely such quality of life issues. The Brooklyn Museum of Art has taken the position, essentially confirmed by the District Court below, that it can display whatever exhibit it wants – no matter how offensive to large segments of the population, no matter how inappropriate for school-age children, no matter how incompatible with prevailing standards of social decency, no matter how degrading to religious faith groups – without risking any of the substantial sums of public taxpayer dollars and other forms of support it receives from city authorities. The constitutional protections for freedom of speech, the Museum contends, shield its artistic/entrepreneurial decisions from any form of public scrutiny and protect its city subsidies from any form of public oversight.

If upheld in this litigation, the Museum’s position will have a substantial adverse impact on communities like ours. It will, for one thing, effectively preclude our constituents from going to the Museum to enjoy the very displays their own taxpayer dollars are helping to fund. Parents in communities like ours make every effort to shield their families from deeply offensive and quasi-pornographic visual images they regard as harmful to healthy spiritual, moral and social development. By using its facilities to propagate such images, the Museum is effectively shutting its doors to Orthodox Jews and other like-minded New Yorkers.

There is an even more fundamental concern at stake here. A cultural institution that was created by the public (through an act of public legislation) for the purpose of serving the public (through its legislative mandate that it "provide the means for popular instruction and enjoyment" and that it be "open and free to the public and private schools of [the] city, at all reasonable times, and open to the general public on such terms and conditions as shall be approved by the mayor and park commission of [the] city"), and that is substantially supported by the public (through its use of publicly owned property and its receipt of publicly funded grants), assumes a certain imprimatur of public approval and endorsement. For this reason, while a private art gallery’s decision to display an exhibit that mocks a faith group’s cherished religious symbols and coarsens the culture by elevating quasi-pornography to the status of "art" would be offensive and harmful enough, the offense and harm are magnified immeasurably when it is a public institution that displays the exhibit.

Ironically, then, if the Museum prevails in this proceeding, it will indeed be fulfilling an educative function, just as its legislative founders envisioned for it – except that the lesson that will be conveyed to our youth is that vulgarity and insensitivity toward others are values worthy of our highest institutions of culture.

Another unhappy irony: If this Court confirms the court below’s embrace of the Museum’s vision of the First Amendment, a possible result would be a diminution of government support for artistic expression. Even Justice Souter, who dissented from the Supreme Court’s holding in National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), that Congress acted constitutionally in insisting that the NEA take into consideration "general standards of decency and respect for the diverse beliefs and values of the American public" in awarding grants, conceded that "there is … nothing whatsoever unconstitutional" about the view, expressed by one of the congressional co-sponsors of the "decency and respect" proviso, that "works which deeply offend the sensibilities of significant portions of the public ought not to be supported with public funds." In Justice Souter’s view:

"Congress has no obligation to support artistic enterprises that many people detest. The First Amendment speaks up only when Congress decides to participate in the Nation’s artistic life by legal regulation, as it does through a subsidy scheme like the NEA. If Congress does choose to spend public funds in this manner, it may not discriminate by viewpoint in deciding who gets the money." 524 U.S. at 603 n.2 (Souter, J., dissenting).

Thus, even the broadest reading of the First Amendment acknowledges the existence of a constitutionally acceptable alternative to the proposition that government must fund everything: government may choose to fund nothing. Indeed, if the only way the city can subsidize any display of art is by subsidizing all displays of art, the city may well be forced to consider subsidizing no displays of art.

This can hardly be seen as cause for free speech celebration. As the Supreme Court noted in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), rejecting the Eighth Circuit’s holding that the First Amendment required a public television station to invite every single candidate for an elective office to participate in a televised candidates’ debate, "the Court of Appeals’ holding would result in less speech, not more… Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates’ views at all… A First Amendment jurisprudence yielding these results does not promote speech but represses it." 523 U.S. at 680-82.

Happily, though, the breathtaking broad – and myopically shortsighted – vision of the First Amendment in which the only constitutionally acceptable alternatives are all or nothing does not accurately reflect the state of free speech law. As defendants show in their appellate brief, and as elaborated herein, there is First Amendment room for the city to exercise oversight of the Brooklyn Museum’s decision to display such a grossly offensive exhibit. The decision below should accordingly be reversed.



General Constitutional Considerations

"Different types of speech enjoy different degrees of protection under the First Amendment." Velasquez v. Legal Services Corp., 164 F. 3d 757, 771 (2d Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3263 (U.S. Oct. 6, 1999) (No. 99-604). Well-settled First Amendment jurisprudence recognizes both the content and the context of speech as relevant factors in determining whether the potential for significant harm to ensue from such speech is sufficient to justify its limitation.

Obscene material is an example of speech that is uniformly denied First Amendment protection based on its content. Roth v. United States, 354 U.S. 476 (1957). Yet even speech that does not meet the legal definition of obscenity may become a target of government regulation or proscription. Speech that is "vulgar, offensive and shocking… is not entitled to absolute constitutional protection under all circumstances"; the context in which the vulgarity is given expression may allow for its restriction. FCC v. Pacifica Foundation, 438 U.S. 726, 747 (1978). Thus, in Pacifica, the Supreme Court upheld a governmental penalty imposed on a radio network for broadcasting a program featuring indecent language relating to sexual matters and excretory functions. In so holding, the Court relied heavily on the fact that the particular form of expression at issue was that of an afternoon radio broadcast, which is uniquely accessible to even very young listeners due to its timing, content and the inherent intrusiveness of broadcast media.

Another form of expression to which the Supreme Court has accorded only a reduced level of First Amendment protection is speech that takes place within an educational setting. Thus, in Bethel School District No. 43 v. Fraser, 478 U.S. 677 (1986), the Court validated a school’s sanctions against a student for delivering a speech laced with lewd allusions. Recognizing that prominent among the objectives of education is the inculcation of "fundamental values of habits and manners of civility essential to a democratic society," the Court held it to be "a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse." 478 U.S. at 683. Similarly, in addressing a school board’s decision to remove certain books from school libraries, the Court has distinguished a removal decision motivated by a desire to suppress ideas, which is plainly unconstitutional, from a decision based on the "educational suitability" or the "pervasively vulgar" nature of such books, which would render such action "perfectly permissible." Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982).

The principle embodied in these decisions is not limited in its application to the traditional school environment. In National Endowment for the Arts v. Finley, supra, the Court upheld the constitutionality of federal legislation that required the NEA to include "general standards of decency" and "respect for the diverse beliefs and values of the American public" among its criteria for awarding grants to artistic projects. "Educational programs are central to the NEA’s mission," said the Court, "[a]nd it is well established that ‘decency’ is a permissible factor where ‘educational suitability’ motivates its consideration." 524 U.S. at 584 (citation omitted).

The Mission of the Brooklyn Museum

An educative function is similarly central to the Brooklyn Museum’s mission. The statute permitting the leasing of city parkland such as that occupied by the Museum specifies that the lessee must be an institution "created for educational purposes" and "shall at all reasonable times be free, open and accessible to the public and private schools of the . . . city." The legislation incorporating the Museum, the land lease and the lease and contract for the building housing the Museum, all contain language tracking that set forth above. Slip op. at 3-4. (References to "Slip op." are to the decision of the District Court below.)

The city, for its part, provides substantial funding to the Brooklyn Museum on the clear understanding that the Museum will carry out its educative functions. Thus, the city’s Procedures Manual addressing allocations to cultural institutions specifies that funding should be provided for educational programs. Its annual budget request form elicits information about accomplishments and plans for educational programs. Indeed, the city’s Fiscal Year 2000 appropriation of approximately $5.7 million to the Museum states that those funds must be used, inter alia, to fund educational programs. Slip op. at 7-8.

These facts, taken together, amply demonstrate that educational programs are central to the Brooklyn Museum’s mission no less than they were to the NEA in Finley, and that the city has an abiding interest in promoting the accomplishment of that mission through its financial support and lease of land and buildings to the Museum. Accordingly, the "educational suitability" of the Museum’s exhibits is an entirely proper basis for the imposition of standards of decency upon such displays as well as the withdrawal of funding where those standards are not attained.

The "Sensation" Exhibit

Promotional materials for the "Sensation" exhibit contain the following "HEALTH WARNING: The contents of this exhibition may cause shock, vomiting, confusion, panic, euphoria and anxiety. If you suffer from high blood pressure, a nervous disorder or palpitations, you should consult your doctor before viewing this exhibition." The jaded observer might well conclude that such seemingly overblown assertions regarding the exhibit’s impact are merely of a piece with the campaign of hype that the Brooklyn Museum has orchestrated to attract media attention to, and public interest in, the exhibit.

Even a cursory familiarity with some of the works on display suffices, however, to demonstrate that, whatever the likely physical reactions by those of frail constitution might be, those works are so egregiously offensive as to leave no doubt of their unsuitability for viewing by children. A partial listing of the show’s offerings includes depictions of revered religious figures incorporating revolting, pornographic and lascivious elements, a life-like statue of a supine, naked corpse entitled "Dead Dad", a 13-foot by 10-foot painting of a notorious child murderer composed of children’s handprints, child-size mannequins with genitalia in place of noses and mouths, a glass box containing maggots and a rotting cow’s head and formaldehyde-filled containers featuring sections of various animals. In the words of one prominent art critic, the "Sensation" exhibit, "with its truth-in-advertising title… amounts to a dictionary definition of decadence… designed to push whatever buttons can possibly be pushed on a museumgoer… a porn-glam contemporary show…" Jed Perl, Shocked, The New Republic (Oct. 18, 1999) at 13.

Little wonder, therefore, that the Brooklyn Museum initially attempted to bar entry to the exhibit to children under 17 unaccompanied by an adult. Even after it retracted upon the city’s advice that such a restriction would constitute a lease violation, the Museum felt compelled to post warning notices on the exhibit. "Sensation’s" inappropriateness for children is clear and undisputed.

It is difficult, in light of this reality, to understand the ipse dixit of the court below that the city had failed to establish that "the Exhibit falls outside the broad parameters of the [Brooklyn Museum’s] enabling legislation". Slip op. at 33. The contents of the exhibit leave no room for doubt that they hold virtually no educational value, and indeed, do injury to the values that our schools strive mightily to impart to their young charges. The display of such an exhibit can in no way be squared with the Museum’s legally defined mandate, appearing in its enabling statute as well as in its statutory charter, lease and contract with the City, to function as an institution serving educational purposes with accessibility to the City’s student population.

Given that "decency" limitations are constitutionally cognizable in settings that are designed to fill an educative function for schoolchildren, the Museum’s effort to confound that function by exhibiting "Sensation" should find no refuge in the First Amendment. The issue is not necessarily the relative pedagogic value of one or another of the Museum’s exhibits, but rather whether an institution that presents a major exhibit as vulgar and offensive as "Sensation", with all of the attendant promotion and notoriety, can claim to have not forfeited its standing as an institution devoted in its essential character to the education of the city’s youth. We believe a fair-minded assessment of the facts must reject such a claim.


The court below found the city’s claim that the showing of the exhibit violated the Brooklyn Museum’s statutory purposes and legal covenants to be a mere pretext for the chilling of the Museum’s right to free expression. Slip op. at 33. The fact is, however, that those purposes and covenants themselves establish the contours of the Museum’s First Amendment protection. Far from providing a smokescreen for the chilling of protected speech, the city’s actions were undertaken in furtherance of the very educative purposes for which the Museum was established. Those actions were a legitimate exercise of the constitutional authority conferred upon governmental and quasi-governmental entities, such as school boards and regulatory bodies, to restrict the airing of indecent and offensive expression in educational and other youth-accessible settings.

For the reasons set forth in appellants’ brief, and as elaborated herein, Agudath Israel of America respectfully urges the Court to reverse the decision of the court below and lift its preliminary injunction.

DATED:New York, N.Y
December 1, 1999

Respectfully submitted,

David Zwiebel
Eytan A. Kobre
84 William Street
New York, NY 10038
(212) 797-9000

Attorneys for Amicus Curiae
Agudath Israel of America

Page 1 of 1


Legal Briefs Index