Case NameBrooklyn Institute of Arts and Sciences v. City of New York and Rudolph Giuliani 
Citation: 64 F.Supp.2d 184 (F.D.N.Y. 1999) 
TopicsBlasphemyTime, Place and Manner RestrictionsPublic ForumPublic Funding

The Mayor of New York took offense to several works displayed in the “SENSATION” exhibit at the Brooklyn Museum. In particular, Giuliani felt Chris Ofili’s “The Holy Virgin Mary”, a painting incorporating elephant dung, desecrated religion. In response, the City attempted to withhold funds already designated for the general operation of the museum, and sought to eject the Museum from the City-owned land on which it had stood for over one hundred years.

The court granted the Museum’s request for a preliminary injunction, prohibiting the Mayor or the City from punishing or retaliating against the Museum for displaying the exhibit. The court granted the injunction due to its finding that the museum was and would continue to suffer irreparable harm if an injunction was not granted.

The court also based its ruling on the finding that the Museum was likely to prevail on its First Amendment claim at a full-blown trial. This was because:

•The government cannot suppress works said to be “offensive, sacrilegious, morally improper or dangerous”, even in indirect ways.

•The government may selectively fund projects promoting a particular viewpoint on a matter of public concern without, as a result, being required to give equal time to an opposing view.

•The government is not required to grant a general benefit or subsidy, BUT upon allocating such a grant it cannot punish or retaliate against a particular Museum because of the perceived viewpoint of the works in an exhibit by rescinding that subsidy.

Finley does NOT stand for the proposition that viewpoint discrimination in arts funding is permissible, but rather that “decency” and respect for diverse beliefs and values are suitable factors to take into consideration.

•Just as the government does not violate the Establishment Clause of the Constitution (which requires the separation of church and state) by funding museums that house religious paintings, it does not endorse anti-religious views by funding museums that house arguably sacrilegious paintings; any objective observer would not believe the City or the Mayor endorsed Mr. Ofili’s views.

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superseded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome here.