The Magazine

Mr. First Amendment

Congress shall make no law abridging Floyd Abrams’s brief.

Feb 17, 2014, Vol. 19, No. 22 • By GABRIEL SCHOENFELD
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His reasoning is straightforward: By making it plain for the first time that the espionage statutes can be deployed against someone for “publication” of government secrets, Assange’s conviction would severely injure the standing of American journalists who engage in the same activity on a daily basis (albeit in a far more discriminating way). In this respect, it is WikiLeaks’s “misconduct” that, by courting prosecution, could have wound up “leading to more than one form of harm.”

Switching gears from national security to modern art and its discontents, Abrams offers an engaging account of New York mayor Rudolph Giuliani’s collision with the Brooklyn Museum over its 1999 exhibit “Sensation: Young British Artists from the Saatchi Collection.” Among other objects included in the show was a painting by a Nigerian artist titled The Holy Virgin Mary, constructed partly out of elephant dung. The mayor of New York, calling the exhibit “sick stuff,” attempted to cut off all city funding to the Brooklyn Museum—about a quarter of its budget—and evict it from its premises until it closed the show. Abrams led the museum’s successful defense.

One high point in that effort was the deposition of Joseph Lhota, then deputy mayor, in which Abrams’s team inquired how the city went about judging which works were unsuitable for display in the museum. 

Question: In selecting the works that you deemed to be inappropriate, how did you go about doing that?

Answer: I asked myself the following question. One, do they desecrate anyone’s religion? .  .  . The second question is: Would I like my 8-year-old daughter to see this work of art? .  .  . And the third question that I asked was: Would anyone who believes in animal rights be offended?

For Lhota, things went downhill from there: “Asked if Michelangelo’s David was the sort of work of art that his 8-year-old daughter should see, Lhota replied that it was not. Could it be displayed at the Brooklyn Museum? Yes, said Lhota.” 

In short order, such tangles revealed that the city had absolutely no standard at all by which to judge what art was suitable for display, not even the standard set by Lhota’s 8-year-old daughter. Shortly before Giuliani was scheduled to submit to what promised to be an equally eviscerating deposition, the city hoisted a white flag and settled the case in full retreat.

Whatever one’s appraisal of the items on display in the Saatchi collection (elephant dung, Abrams notes, is venerated in Africa for its reputedly regenerative properties), this outcome, he argues persuasively, was both necessary and important. If the case had gone in the other direction, the law would have henceforth enabled a New York mayor to require any museum or library or publicly funded institution to remove any work of art or book of which he or she disapproved. No doubt, many partisans of Giuliani would have enjoyed watching him wield that power during his tenure, especially against objects like The Holy Virgin Mary. But would they also enjoy watching it being wielded by New York’s new Sandinista-supporting, soak-the-rich mayor?

The question answers itself. Censorship is a sword that can cut in any number of directions, which is exactly why government officials, as Abrams maintains the First Amendment demands, should be kept far away from such decisions. This is hardly to say that Abrams believes the First Amendment permits anything and everything to be said or printed. He allows that the First Amendment is compatible with restrictions on expression in a number of realms, such as libel, copyright infringement, and obscenity.

The subject of censorship brings us to Citizens United, the 2010 Supreme Court case striking down the McCain-Feingold campaign finance reform legislation. This decision, barring the government from limiting political spending by corporations and unions, was greeted with shock and outrage in the liberal circles where Abrams dwells. His most notable client, the New York Times, denounced the ruling as “disastrous” and “terrible.” Jeffrey Toobin, the New Yorker’s legal analyst, judged the opinion to be the product of “bizarre legal theories,” while Howard Fineman of Newsweek excoriated it as “one of the more amazing pieces of alleged jurisprudence that I’ve ever read.”