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 Women’s History Month: “EXPOSED,” held at West Hollywood’s 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 11
th
(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 Mason’s 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 25
th
), 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 City’s 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 man’s 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 Mason’s 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 City’s 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 “heckler’s veto,” which is illegal under the First Amendment.
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In removing Mason’s 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 attorney’s 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 government’s 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 Mason’s 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 City’s 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
Women’s 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 Women’s History Month. In the artist’s 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 Women’s 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 1
st
, 2016. In addition, you should extend the exhibition for the