Mayor Alvin Brown sent City Council President Clay Yarborough a letter today stating that Yarborough's demand to pull the Museum of Contemporary Art Jacksonville's funding could put the city at risk for legal actions since it would likely violate the First Amendment.
Yarborough sent the Mayor's Chief of Staff, Chris Hand, a letter last Tuesday about a "pornographic display at MOCA." Yarborough complained that there was a photograph of "a woman with bare breasts exposed and laying in a questionable position." Yarborough went on to demand:
"Unless Mayor Brown supports this inappropriate, pornographic display, and accepts that anyone, including children can enter and see it, I insist that you immediately cause to be pulled all funding designated for MOCA for the current fiscal year or otherwise explain how this will be addressed within 24 hours."
Hand responded to Yarborough's request and advised him that the Office of General Counsel would have to be consulted due to the potential First Amendment issues involved. Jason Gabriel of the Office of General Counsel responded to Hand and Yarborough, and wrote:
Based on relevant federal case law, the City cannot remove artwork from the Museum based on what it may deem offensive. While the City can choose to fund agencies or activities however it wishes (including those involving speech), it cannot discriminate or base its decisions on viewpoints with which it disagrees. Moreover, the case law is very clear that the City cannot rescind funding for a museum, refuse to renew its lease, or otherwise sanction it based on artwork it may deem offensive. To do so would violate the museum’s (and possibly the artist’s) free speech rights and injunctive relief against the City would be highly likely, as well as accompanying attorneys’ fees. See Cuban Museum of Arts and Culture, Inc. v. City of Miami, 766 F. Supp. 1121 (S.D. Fla. 1991); The Brooklyn Institute of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999).
Gabriel suggested a more even-handed alternative.
"The City could respectfully request that the art piece be moved or obscured from general public view, but if the museum refuses, pertinent case law (as referenced above) would prevent the City from sanctioning the museum for its actions regarding protected activity."
In the Mayor's subsequent letter to Yarborough, he made it clear that although he gave the request thoughtful consideration, he would not comply with it.
After thoughtful consideration of your request and the First Amendment issues involved, I will not seek to pull any of the funding that City Council appropriated to the Cultural Council of Greater Jacksonville in the current budget. This includes the cultural council subsequent award of $233,029 grant to MOCA.
