Lindsey Horvath

Mayor of the City of West Hollywood

City of West Hollywood
Arts and Cultural Affairs Commission
8300 Santa Monica Boulevard
West Hollywood, CA 90069
Phone: (323) 848-6883

March 28, 2016

Dear Mayor Horvath,
As organizations dedicated to promoting the First Amendment right to free speech,
including freedom of artistic expression, we were deeply concerned to learn that West
Hollywood city officials demanded the removal of three photographs by the artist Brooke
Mason from two concurrent exhibitions that celebrate Womens History Month:
EXPOSED, held at West Hollywoods Plummer Park, and Out & About at West
Hollywood City Hall. These actions, based on what appears to be a subjective
interpretation and dislike of the work on the part of city officials, raise serious First
Amendment concerns. We urge the City of West Hollywood to immediately put the work
back on display and, in the future, draft exhibition policies that are consistent with First
Amendment principles.
It is our understanding that Voyeur and Glass Ceiling, both included in EXPOSED,
which had been juried by an outside curator and initially approved by the City, were
removed on March 11th (five days after the show opened) after a staff member complained.
On the same day, Paul Arevalo, the City Manager, and Andrew Campbell, the Cultural

Affairs Administrator, requested the removal of Masons photograph Soar from Out &
About as a condition of proceeding with that exhibition, which was curated by Mason
herself for the Los Angeles based non-profit group Women Manifest. Out & About thus
opened without the work.
In a letter to our offices (March 25th), Arts and Economic Development Division Manager
Maribel Louie states that It is a common practice within our municipal arts programs to
utilize the following, Concept: strength of concept, originality and craftsmanship of
proposed artwork, appropriateness of the visual imagery for all audiences (not reflecting
politics or containing overtly sexual or religious content or expressing a commercial
aspect). In addition, the artwork should be sensitive and respectful of the diversity of West
Hollywood residents, employees, and visitors.
While every single visitor may not necessarily like all of the work in an exhibition, they
should also be made aware that, as a public space opened to exhibiting artwork, City owned
spaces are ruled by the free speech clause in the First Amendment. This means that
government officials cannot arbitrarily or systematically impose their prejudices on a
curated exhibition. Respecting diversity does not allow for suppressing everything that
could potentially generate an objection: such a standard would jeopardize the Citys entire
art and culture program. The common practice of allowing public officials to remove
anything reflecting politics or having sexual or religious content is likely to violate
First Amendment principles and generate as in this case decisions based on subjective
interpretation.
Even if it were permissible for the City to adopt a policy whereby works that were overtly
sexual could not be displayed in art exhibitions on city property, that policy would not
undo these constitutional violations: (1) removing Voyeur and Glass Ceiling from an
exhibition that had already been installed and (2) conditioning the opening of another
exhibition upon the removal of Soar. This is because the City clearly applies its alleged
policy against overtly sexual works in an arbitrary and discriminating manner: Plummer
Park has a history of hosting exhibitions that include explicit erotic content and frontal
nudity such as those related to the annual erotic fair presented by the Tom of Finland
Foundation. Moreover, the forthcoming exhibition Cock, Paper, Scissors, includes
numerous unapologetically sexual nudes and figures, including a photo collage that
includes an erect penis close to another mans anus. Cock, Paper, Scissors is described in
its press release as undoubtedly a celebration of the numerous uses of gay male
pornography. Given the past and future overtly sexual images of men that the City
permits, the suppression of Masons works is both fully arbitrary under the First
Amendment and likely also illegal gender discrimination prohibited by the Constitution.
The removal of Voyeur and Glass Ceiling were also impermissible for another reason. City
officials were aware that these works were to be included in the EXPOSED exhibit, thus
implicitly concluding that they were consistent with the Citys policies on permissible
public art. Their subsequent removal, based not on those policies but on complaints by
people who had viewed the exhibit, constitutes a hecklers veto, which is illegal under
the First Amendment.

In removing Masons work, the City of West Hollywood is likely violating the free speech
rights of the artist and thus exposing the city to both legal liability and substantial
attorneys fees if it were to lose a lawsuit. Our courts have time and again reaffirmed that
the First Amendment prohibits public officials from censoring art they find offensive or
provocative. The case of Hopper v. City of Pasco (2001) in the Ninth Circuit Court of
Appeals is a case in point. The plaintiff artists were invited to display their work at City
Hall and were then precluded from doing so because the work provoked controversy and
public officials considered it sexually suggestive. The Court noted that Pasco, by opening
its display space to expressive activity evinced an intent to create a designated public
forum. In such a forum, the court concluded, the content-based removal of work would
only be justifiable if there is a compelling state interest and is narrowly drawn to achieve
that end.
The U.S. Supreme Court has specifically declared that simple representations of nudity are
a constitutionally protected form of artistic expression. As the Court has noted multiple
times, `nudity alone does not place otherwise protected material outside the mantle of the
First Amendment [Schad v. Mount Ephraim (1981), Jenkins v. Georgia (1974), Osborne
v. Ohio (1990)]. Nor is nudity in art harmful to minors. Subjective concerns about what
children might see do not provide a basis for refusing to exhibit art work: [R]egardless of
the strength of the governments interest in protecting children, [t]he level of discourse
reaching a mailbox simply cannot be limited to that which would be suitable for a
sandbox [Ashcroft v. ACLU (2002), and cases cited therein].
The arbitrary and subjectively determined decision to exclude Masons photographs from
public view fulfills no compelling (or even rational) city interest. No one is well served by
this violation of expressive freedom, certainly not the West Hollywood public, which is
illegitimately deprived of the opportunity to view and evaluate artistic work for itself.
These actions open the door to suppressing free speech in an arbitrary fashion, leaving
decisions to the subjective opinions of city officials.
Aside from the serious First Amendment considerations involved, the removal of the works
sends a damaging message about the Citys attitude to women: both exhibitions showcase
works by women artists in conjunction with International Women's Day. EXPOSED was
co-sponsored by the City of West Hollywood Women's Advisory Board and the Los
Angeles Art Association in celebration of National Womens History Month. The purpose
of these exhibitions is to express the freedom and strength of women, and to celebrate
women and the advocacy for women's rights.
Censoring works because of partial nudity reduces female bodies to their sexuality and
potentially objectifies them going against the very heart of Womens History Month. In
the artists words, Soar is directly about existentialism, it is not a sexual piece of art. The
City of West Hollywood supported Women Manifest to celebrate and uplift the history of
women for Womens History Month and what these people in the city are doing is quite the
opposite.
We urge you to make sure the work is restored to the exhibition as soon as possible and no
later than Friday, April 1st, 2016. In addition, you should extend the exhibition for the

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amount of time that the works in it were illegally censored to rectify the harm caused by
illegal censorship. Please let us know if you would like to discuss this matter further.

Sincerely,

Svetlana Mintcheva
Director of Programs
National Coalition Against Censorship
New York

Peter J. Eliasberg
Legal Director
Manheim Family Attorney
for First Amendment Rights
ACLU Foundation of Southern California

cc:
Paul Arevalo
City Manager
Lisa Belsanti
Manager, Communications
Andrew Campbell
Cultural Affairs Administrator
Maribel Louie
Arts and Economic Development Division
Manager

Peter Mays
Executive Director
Los Angeles Art Association
Elizabeth Savage
Director of the Department of Human
Services and Rent Stabilization
Joshua Schare
Public Information Officer