Dear Readers,

This is one of the more interesting posts that appeared on the NYTimes discussion list in reponse to the Bob Herbert Column on Giuliani and the Brooklyn Museum. I reproduce it with permission of its author.

Robt Baron

lancefletcher - 09:17am Sep 27, 1999 EST (#5963 of 6004)

This is about Bob Herbert's article on the Mayor's threat to deprive the Brooklyn Museum of City funding because of the mounting of the "Sensations" exhibit.

Bob Herbert asserts, or strongly implies, that the Mayor's proposed action threatens to curtail freedoms protected by the First Amendment. If he is right about that, I have no doubt we will soon see a lawsuit. But I think the somewhat muted and cautious tone which he notes in the responses from the directors of some other city-funded museums indicates that the legal rights in this matter may not be so favorable to the museums as Bob Herbert seems to think.

I don't know precisely what action the Mayor is proposing to take, but this is my general understanding of the funding situation:

Funding for cultural institutions by the city is not an entitlement. Each institution receives funding based on individual budget appropriations that are, in general, proposed in the Mayor's budget message to the City Council, debated and sometimes modified by the Council, and finally adopted by a vote of the Council which is then subject to veto by the Mayor. (This refers to general operating support for the institution, in addition to which cultural institutions may receive support for particular programs managed by the institution, which may be allocated from funds appropriated to and controlled by certain government agencies, most particularly the Department of Cultural Affairs.)
The author of message #5952 asserts that the City of New York owns the Brooklyn Museum. I don't know if this is true. It may not be. I am sure that the City of New York does not own the Metropolitan Museum, the American Museum of Natural History, or the Research Division of the New York Public Library (although I think the City does own the land underneath the Metropolitan Museum). But this is irrelevant to the funding, because, as a legal matter, the elected officials the the City have a perfect right to appropriate City tax funds to support institutions whose directors are not appointed by the City and whose staffmembers are not City employees.

The decision to appropriate City budget funds to support particular cultural institutions is an exercise of the discretionary power which is vested in the Mayor and the members of the City Council by the City Charter and, ultimately, by the citizens of New York. It is an inherently "political" decision, not necessarily in any crude sense of that term, but in the sense that it is something that gets debated and whose outcome is normally the resultant of some tugging among competing interests over a finite supply of money. When I was chief aide to a member of the City Council, each year our office would be deluged by letters from library supporters, museum supporters, ballet supporters, park supporters, etc. And each group's letters contained more-or-less compelling arguments about why their particular interest should receive continued, or increased, funding from the City. Ultimately the argument was always that doing this was in the interest of the City as a whole, or that it was of particular interest to the constituents of this particular Council Member....

At some level the argument for continued or increased support from the City government for a particular cultural institution is always based on the claim that this institution is serving a public interest, which is to say an interest that a significant fraction of the voting public perceives as something of value. The City gives financial support to libraries because they are believed to provide a valuable public service -- even libraries whose collections are of direct interest to only a very small fraction of the population, like the Science collection of the New York Public Library, or the Schomburg collection of African-American materials.

Let us imagine a library of pornographic videos. The contents of such a library might well be of interest to a fairly large public -- perhaps larger than the number of people interested in the Schomburg collection. If the City government were to attempt to close this library or to censor its contents, it is possible that a First Amendment claim would be brought to prevent the City from taking any such action, and it might even prevail in court. But if, in the next City budget cycle, the trustees of this library found that their City funding was removed (supposing that they had received some city funding prior to their beginning to circulate porno videos), this failure of the City government to provide funding would not provide a cause of action, or even a cause for comment. People would simply say, "Well, of course, that's just not the sort of thing that the City funds."

Exactly the same logic applies, I think, in the case of the Brooklyn Museum. It receives funding from the City based on the representation of its trustees that the funds will be used for purposes which are in the public interest -- and those who are charged with the authority to appropriate such funds from the City treasury have pretty much sole discretion for deciding what that public interest is. If it is found, on subsequent review, that the trustees of the museum have allowed the City's funds to be used for purposes which appear not to be in the public interest, as perceived by the elected officials in question, then it is probable that they will lose confidence in the judgment of this particular set of trustees and will accordingly reduce or discontinue support for their institution.
If the Mayor is proposing to withdraw financial support for the Brooklyn Museum which has already been appropriated by the City Council then, at the very least, he would need the approval of the Council for a budget modification, and it is conceivable that this might be challenged on some legal ground if it were clear that it was in reaction to a particular exhibit (although even in that case I think the First Amendment argument is not extremely strong). But if, as I suspect, the Mayor is simply threatening to reduce or eliminate discretionary funding for the Brooklyn Museum from future budgets, I think this is a political matter beyond the reach of judicial process.

Lancelot Fletcher -- [log in to unmask]

Lance Fletcher, President
The Free Lance Academy Foundation
http://www.freelance-academy.org
[log in to unmask]

========================================================Important Subscriber Information: The Museum-L FAQ file is located at http://www.finalchapter.com/museum-l-faq/ museum-l.html. You may obtain detailed information about the listserv commands by sending a one line e-mail message to [log in to unmask] The body of the message should read "help" (without the quotes). If you decide to leave Museum-L, please send a one line e-mail message to [log in to unmask] The body of the message should read "Signoff Museum-L" (without the quotes).