Oy May! Artless Boycotts Blossom

May 5, 2015

By Irina Tarsis, Esq.

The front page of the New York Times The Arts Section today, May 5, 2015, features indigenous actors and prominent writers staging walk outs. The story of American writers withdrawing from a literary gala that plans to honor the French satirical magazine Charlie Hebdo for “freedom of expression courage” is particularly surprising, as it rings counter to one of the basic principles of this nation’s freedom of speech and the press. While from the standpoint of free speech, “the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views,” reportedly 200 of 4,000 members of the PEN American Center signed a letter against awarding Charlie Hebdo’s “unacceptable” expressions.

This NY Times story appears just a few pages back from the front page photograph of “a crew … removing the bodies of two gunman who made an assault on a gathering [of controversial cartoonists] in Garland, Tex.,…” The foiled assault on the Mohammad cartoon contest in the United States, carried out by the self-declared ISIS supporters, instantly recalled the attack on the Charlie Hebdo headquarters in Paris earlier this year and the attacks on cultural sites and artifacts carried out by the bonafide ISIS militants.

Be it a boycott, an assault or a parade, these public spectacles are powerful tools for capturing attention and galvanizing support for a cause. When we talk about boycotts and cultural divides, we must not forget that this week marks the the 70th anniversary of the end of World War II, where millions of people, including talented writers and cartoonists, followers of all religions, died due to intolerance, racism, economic disparity and grand military aspirations. In commemoration of this date, nations and national leaders, veterans and survivors are conducting memorial services worldwide. One nation that arguably suffered the most from the so-called Great Patriotic War, the Russian Federation is poised to conduct one of the biggest parades on the Red Square both to celebrate the triumph over the Nazism but also to illustrate its current military might. Auspiciously, the nations that played as important a role in ending World War II, the Russian allies and former sister nations are not sending their representatives to Moscow this week. The list of absentees includes: the United States, the United Kingdom, France, Poland, Ukraine, Belarus, and Latvia.

The righteousness felt by those engaged in boycotts may be just as harmful as the debase and radical thinking that propels people to engage in unfair labor practices, take property from others without compensation, destroy artifacts and commit murder.

What does this editorial have to do with art law? In 1999, Brooklyn Museum organized a show “Sensation: Young British Artists from the Saatchi Collection,” which included works by Chris Ofili made with mixed media including elephant dung. The Mayor of the City of New York, Rudolph Giuliani decided that a number of the works were “sick” and “disgusting.” He decided that one work in particular, “The Holy Virgin Mary” was an attack on religion as it was offensive to Catholics. The Mayor tried to withhold funding from the Brooklyn Museum and threatened eviction. The Court held that the City and the Mayor were prohibited from taking any steps to inflict any punishment, retaliation, discrimination, or sanction against the museum because the freedom of speech trumped in this instance and that no “objective observer could conclude that the Museum’s showing of the work of an individual artist which is viewed by some as sacrilegious constitutes endorsement of anti-religious views.” Art and anti-religious sentiment may be subjective. The line between art and dung is sometimes indistinguishable. Legal minds thrive in the gray zone. Nevertheless, somethings remain black and white. Muscles flexing looks wonderful when it is rendered by Michelangelo or Baryshnikov, but it is much less palatable when done by means of weapons and at the cost of human lives. Certainly, there are fascinating art law debates and cases that stem from trademarking “Je suis Charlie,” looting that occurred during World War II, terrorist attacks and the recent annexation of Crimea, and even using elephant dung to create artworks. This week in May, however, there are few matters more important than cultural tolerance.

Suggested Readings:

• Brooklyn Institute of Arts v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999).
• Dennis Abrams, Je suis public domain (March 4, 2015), available at http://itsartlaw.com/2015/03/04/je-suis-public-domain/
• Steffanie E. Keim, Gurlitt Saga Continues: U-Turn or Rotery (March 31, 2014), available at http://itsartlaw.com/2014/03/31/gurlitt-saga-continues-u-turn-or-rotary/

About the Author: This editorial is by Irina Tarsis, art lawyer and Founder and Director of Center for Art Law.