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]
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