As one who doesn’t much like Catholic-bashing "art," and doesn’t dig pigs and sharks suspended in formaldehyde, and doesn’t want taxpayers dragooned into subsidizing whatever in-your-face, sensationalistic stuff titillates the artsy set, and would love to see Hillary Rodham Clinton’s Senate campaign go the way of her Whitewater land deal, it pains me to say this: New York Mayor Rudolph W. Giuliani is a menace to the freedom of speech. He mauled the First Amendment quite badly when he cut off the long-standing city subsidy that covers a third of the Brooklyn Museum of Art’s operating budget, and sought to evict the museum and its 1.5 million art objects from the city-owned building it has occupied for more than 100 years. Giuliani’s stated reason was the museum’s refusal to cave in to his 11th-hour demand that it cancel an exhibition titled Sensation–or at least take down a painting of the Virgin Mary adorned with elephant dung and surrounded by tiny pornographic pictures of body parts. The mayor says he considers these works "sick," "disgusting," sacrilegious, and insulting to Roman Catholics. Even if the mayor is right about the art, he is wrong about the law. A U.S. District Court judge, Nina Gershon, was entirely persuasive in calling a halt to Giuliani’s jihad. This she did in a Nov. 1 preliminary injunction issued on the ground that the city’s punitive measures violate the First Amendment. Indeed, the mayor’s campaign to bludgeon the museum’s board of trustees into submission exudes "a thuggish quality that sets all sorts of constitutional bells ringing," as Floyd Abrams, who represents the museum in its lawsuit against the city, said in an interview. Worse, Giuliani’s crusade comes at a time when Republicans have a golden opportunity to occupy the high ground in the perennial battle between the forces of free speech and the forces of censorship. Many Democrats have largely abandoned that high ground in their zeal to chill speech that offends liberal political correctness. If Republicans become censors, too, we’re all in trouble. Consider a hypothetical variation on the facts: Suppose that the mayor was San Francisco Democrat Willie Brown. Suppose that he had employed the same array of punitive measures that Giuliani did. And suppose that the picture he wanted removed was a scabrous depiction of, say, the Rev. Al Sharpton, the Rev. Jesse Jackson, President Clinton, Vice President (and aspiring alpha male) Gore, and Mayor Brown himself, all clad in women’s underwear, in an outhouse, knee-deep in elephant dung. Would that violate the First Amendment? I hope that most of you conservatives out there would say yes. (How about you liberals?) If your answer is yes in one of these cases, then it also has to be yes in the other one. The cardinal First Amendment principle that governments may not punish speech on the basis of its viewpoint does not depend on whether the views come from the political Left or from the Right. News reports do support Giuliani’s assertion that the museum furtively obtained money to finance the exhibition from British advertising tycoon Charles Saatchi, who owns the Sensation collection of works by British artists, and from others with an interest in inflating the commercial value of the works. (The irony is that Giuliani himself has now enormously inflated their value.) If the mayor had only denounced the museum for bad judgment and for exhibiting trash in the guise of art, his conduct would have been entirely appropriate. Mayors have First Amendment rights, too. And even if he had vetoed a (hypothetical) request that the city subsidize specific artworks that offended him or his constituents, the First Amendment issue might be a close call. Nobody is entitled to a public subsidy for his or her art, or for any other form of expression. And when officials block subsidies for specific works, as Justice Antonin Scalia put it last year, "Avant-garde artistes remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it." Scalia was concurring in National Endowment for the Arts vs. Finley, which upheld a 1990 act of Congress that tells the NEA to consider "general standards of decency" when it awards money based on artistic merit.

The law was adopted after an uproar over NEA grants (totaling $45,000) to Andres Serrano–whose photograph Piss Christ shows a crucifix immersed in urine–and to subsidize an exhibition including homoerotic photos by the late Robert Mapplethorpe. But as Justice Sandra Day O’Connor wrote for the majority, the 1990 statute might have been invalid if read broadly enough to require "a penalty on disfavored viewpoints." She cited precedents holding that "even in the provision of subsidies, the government may not [seek] `the suppression of dangerous ideas.’ " In a society honeycombed with governmental subsidies–on which universities, arts institutions, libraries, magazines, and individuals often depend for their very survival–the selective removal or threat to remove a subsidy can in some circumstances amount to unconstitutional censorship. The Justices ruled in 1946, for example, in Hannegan vs.

Esquire, that the Postmaster General could not discriminate against a magazine whose contents he considered immoral by denying it second-class postage privileges, a form of public subsidy. Evaluated by these standards, this case is not a close call: Giuliani’s conduct quite clearly violated the First Amendment. The issue is not whether the mayor could have vetoed funding for Sensation; the exhibition was privately financed (to the tune of some $2 million), and involved no direct use of the $7.2 million annual city subsidy, which supports operation and maintenance of the museum building. The issue is not even whether the mayor could have reduced the city’s support of the museum’s overhead by some fraction reasonably calibrated to the goal of avoiding even an indirect city subsidy of the Sensation exhibition. Rather, what Giuliani did had the flavor not of withholding a subsidy, but of imposing a punishment. On Sept. 22–six months after his cultural affairs commissioner had been given a catalog showing the controversial nature of this exhibition, and 10 days before the scheduled opening–he suddenly demanded through a subordinate that the entire show be canceled.

Another subordinate suggested that the museum might be able to satisfy the mayor by taking down the painting of the Madonna adorned with elephant dung. The mayor backed up his demand first by threatening, and then by taking, an array of punitive actions: He cut off the entire city subsidy, on which the museum has depended for many years; he withheld the monthly payments due on Oct. 1 and Nov. 1, totaling almost $1 million; and he asked a state court to evict the museum from the city-owned building that it has long leased (for a nominal sum). Giuliani also threatened to fire the museum’s board of trustees. This looks like the kind of abuse of official power that Justice O’Connor may have had in mind when she warned against imposing a "penalty on disfavored viewpoints" in the guise of withholding a subsidy. It began, in Judge Gershon’s words, as an effort "to coerce the museum into relinquishing its First Amendment rights." It evolved into an effort "to threaten the vitality of a major cultural institution, as punishment for failure to abide by governmental demands for orthodoxy." And Giuliani’s actions are hard to distinguish from, for example, a mayor’s effort to defund a publicly financed library for refusing to remove from its shelves a number of books that the mayor deems offensive or sacrilegious. The city’s argument, both in federal court and in its state-court eviction action, that the museum violated the vague terms of its lease by showing works "offensive to significant segments of the public" was, as Judge Gershon held, "purely pretextual." First, Giuliani decided to punish the museum for refusing to remove works that he disliked; then he sent city lawyers searching for legal technicalities of dubious relevance to divert the case from federal to state court. As for the mayor’s suggestion that the exhibition enlists city money in an attack on religion, he ignores the presence in the museum’s permanent collection of many reverential portrayals of the Madonna and other religious art. Giuliani’s reaction to Gershon’s decision was characteristically arrogant: "The judge is totally out of control." Out of his control, perhaps. As long as we have elected officials like him, we will need judges like her.