Chapter from

The Tilted Arc Controversy : Dangerous Precedent?
by Harriet F. Senie

The rise and fall of recent public support for art
Public Art Policy at the NEA
Public Art Policy at the GSA
Deaccessioning Public Art
Public Art and The Legal System
Artists Rights in Europe
The Legal Profession and Change



The Public Policy Context  

For the arts, the 1980s will be a perpetual `Perils of Pauline.'

Bob Arnebeck, New Art Examiner, Oct 1981


Throughout the 1980s the arts were a primary target for federal budget cuts. The rise and fall of Tilted Arc occurred against a background of shifting paradigms in public policy for art in general and public art in particular. Although there was no centralized or coherent national arts policy, the NEA was generally perceived as providing an umbrella for the arts, and its position a reflection of public opinion. When the decade began the strong national arts coalition built by Nancy Hanks during her tenure as chair of the NEA (1969-77) was just starting to unravel. By the end of the decade the very future of the agency was in question.

Some independent programs, like the one that commissioned Tilted Arc, were directly linked to the national arts agency. At the time of Serra's commission the GSA's Art-in-Architecture selection panels were appointed by the NEA. In this way they reflected endowment thinking; often the same individuals advised both agencies. However, the NEA and GSA funded public art differently.[1] The GSA commissioned and owned art for federal buildings. The NEA's Art in Public Places matching grant program responded to requests from communities or universities (who would select and ultimately own the commissioned works) and, in its guidelines, reflected (and in turn determined) the shifting paradigms of the public art world. While the NEA supported projects that increasingly focused on collaboration and process, the GSA continued to commission art objects.

In spite of their different missions (the NEA to support arts nationally, the GSA to contract for all goods, supplies, construction and maintenance for the federal government), when it came to art, the work of both agencies raised basic issues of public policy and process: should government support public art and, if so, what kind and who should choose it? The NEA's selection process based on peer panels of arts professionals was repeatedly challenged as the national arts agency came under attack.

Public policy, whether clearly stated or not, is enforced by a process that is often mutable, open to manipulation by those who know how the system works. During the Tilted Arc controversy and, according to some, prompted by it, the collaboration between the national arts agency and the GSA in commissioning public art gradually eroded. By the time the sculpture was removed the NEA no longer appointed GSA selection panels. Under GSA control these panels included a majority of non-art professionals and regional administrators (like Diamond) had considerably more power. Although not mandated by public policy, this development reflected both conservative attacks on the art world and a commitment to local governance rather than a strong centralized federal presence.

The power of a federal agency is often a direct reflection of its director. At the time Tilted Arc was removed, there was no permanent head at either the NEA or the GSA. And, furthermore, the structure and head of the Art-in-Architecture program that commissioned it had changed. This bureaucratic void left Serra completely dependent on a legal system that seemingly fails to provide visual art with the same protection as the spoken or written word, and is especially problematic when it comes to abstract works. Apparently considered as being without content, abstract art is neither fully protected under the First Amendment as free speech nor, technically, can it be censored.


The rise and fall of recent public support for art go to contents

Public policy, considered an expression of public values, is essentially determined by economic factors and political circumstances. Support for art in the U.S. has been the exception, not the rule, a national anomaly. Without an established tradition of patronage or a politically savvy and cohesive constituency, the arts have been especially vulnerable to the vagaries of politics.

Prompted by the positive press that greeted poet Robert Frost's participation in Kennedy's 1961 inaugural celebration, some presidential advisors began to advocate a public arts policy. Developed in an ad hoc way, based primarily on specially commissioned reports, a commitment to federal support for the arts evolved gradually, stressing the importance of good design and the need for artistic freedom.[2] Kennedy defined the arts as an expression of American liberty, as opposed to the controlled arts of the Soviet Union, thereby making support a national issue. But Kennedy was assassinated before he could establish a national policy or create the cabinet post then under consideration.

His successor, Lyndon Johnson, signed the law that created the NEA in 1965. Part of the educational policy of the Great Society, Johnson defined the arts as an expression of "the inner vision which guides us as a nation."[3] But the real implementation of a national arts policy began when Richard Nixon appointed Nancy Hanks as the second head of the agency in 1969.[4]

With a degree in political science and a background in politics, Hanks had worked as Nelson Rockefeller's assistant in the Department of Health, Education and Welfare, and with Laurence Rockefeller as executive secretary of the Rockefeller Brothers Fund. Through her familiarity with the Rockefellers' support for art and her own experience as unpaid president of the Associated Councils of the Arts (an organization of state and community arts councils), Hanks had important connections in both the political and art worlds. Viewing herself as "an administrator and a good listener,"[5] she fostered the creation of state arts agencies nationwide and established a solid base of local support for NEA programs. Hanks's success was phenomenal. During her tenure the NEA budget rose from $8.2 million in 1970 to $123.5 million in 1978, and its staff, grant applications, and awards increased exponentially.[6]

As the agency's reauthorization cycle went from two years (1960s) to three (1970) to four (1976) to five (1980), Congressional support was led in the Senate by Claiborne Pell (D,RI) and Majority Whip John Brademas (D,IN) in the House. In 1977 Jimmy Carter appointed Pell's former special assistant, Livingston Biddle, as third chair of the NEA. But in a shrinking economy, even with continued Congressional support, and Joan Mondale, the Vice President's wife, a strong and vocal supporter of the arts, the NEA was unable to build on or even maintain the power base Hanks had created.

At the time of Biddle's appointment, there were already questions about the quality and type of art funded by the NEA, whether money should be spent on advocacy as opposed to direct support, and the priority of geographical distribution.[7] Two years later (when Serra got his GSA commission), economic resources were more limited and arts institutions and programs were increasingly in competition with one another. When Reagan and a Republican Senate were elected in 1980, Pell was replaced as chair of the Senate oversight committee and several important arts advocates failed to win re-election: Senator Jacob Javits (R,NY, for whom the building at Federal Plaza was named), Representatives John Brademas (D,IN), Frank Thompson (D, NJ), and Fred Richmond (D, NY). In 1981 the American Council for the Arts (ACA) began organizing an annual Arts Advocacy Day in Washington, a clear signal that political support had become a serious concern. That year Frank S. M. Hodsoll was appointed fourth chair of the NEA and Tilted Arc was installed.

Although the NEA was threatened with budgets cuts throughout the 80s, funding remained static but costs did not as inflation became the norm. In 1985 (the year of Diamond's hearing), three Republican Congressman criticized the NEA for supporting `pornographic poetry' and accused its peer panels of `cronyism' and conflicts of interests.[8] As congressional scrutiny increased, the NEA was asked for a formal review of its selection process.

By 1989 (the year Tilted Arc was removed) the NEA was embroiled in the `culture wars' that appeared to have replaced the Cold War. Sharply attacked by representatives of the religious right for supporting exhibitions that featured Andres Serrano's brilliantly colored Cibachromes of Christian images soaked in urine and Robert Mapplethorpe's black and white photographs of homosexual acts, the NEA became the object of a politics of diversion that used art as an easy target to blame for the country's problems. Antagonism and alarm in the art world intensified when the agency's new chair, John Frohnmayer, rejected four grants to performance artists whose works he thought inappropriate and Congress succeeded, for a brief time, in making an anti-obscenity oath a prerequisite for an NEA grant.[9]

Art support was equated with blasphemy and obscenity, demonstrating yet again that he who frames the issue usually wins, in this case the Reverend Donald Wildmon of the American Family Association, joined by evangelist Pat Robertson, and supported by Senators Alphonse D'Amato (R,NY) and Jesse Helms (R, NC). The actual facts - that the NEA had supported exhibitions for these works (i.e. institutions) and not the artists directly, that the dollar amount involved was insignificant (as was the entire NEA budget - less than support for military bands being the favorite comparison), and that the agency's track record nationwide was excellent - although often reiterated by agency supporters, seemed inconsequential. So powerful was the attack on art that Republican politician, Pat Buchanan, was able to challenge George Bush's party nomination in 1991 by referring to the NEA as the "upholstered playpen of the Eastern liberal establishment" and criticizing his administration for "subsidizing both filthy and blasphemous art."[10]

By the summer of 1991, as attacks on art became more common, the American Civil Liberties Union (ACLU) launched its Arts Censorship Project and People For the American Way started Artsave, both programs intended to protect threatened art. The `culture wars' raised broad issues of artistic freedom, community standards, and the viability of public support for art. They also demonstrated the power of art to trigger rage. All this was true of Tilted Arc as well.[11] But the Tilted Arc controversy was complicated not only by the difficulty of finding art world and political support for an abstract work by an established white male artist, but by the problematic and changing concept of public art and its funding.


Public Art Policy at the NEA go to contents

The NEA's Art in Public Places program was established in 1967 to provide matching funds for public art to a variety of organizations. Its very first venture, Alexander Calder's sculpture, La Grande Vitesse (fig. 4), for Grand Rapids, Michigan was considered a huge success. Its site was eventually renamed Calder Plaza and an image of the sculpture adopted as a civic logo appearing on the mayor's stationery as well as city garbage trucks. In 1973 then House minority leader and later President Gerald Ford told his house colleagues, "At the time I didn't know what a Calder was. It was somewhat shocking to a lot of people out home." But, he claimed, the sculpture helped regenerate the city by sparking interest in the downtown area.[12]

Art in Public Places grants responded to community requests. Initially the NEA and local grantee each appointed three members to selection panels; by 1979 the grantee selected the entire panel but the agency recommended that nationally recognized professionals familiar with contemporary public art be involved. As budget categories evolved, matching grants for commissioned works went up to $50,000 and direct purchases up to $25,000.

Although art support is ostensibly a response to practice, practice is also influenced and then to an extent determined by funding guidelines. In a 1987 press release announcing art in public places grants, Richard Andrews, director of the Visual Arts program stressed the diversity of responses to public places: "from freestanding object, sculpture which is furniture, `site specific' art, to the creation of the place itself."[13] The next year Michael Faubion, then acting director of the program, advocated the early involvement of artists: "Generally the panel has taken a favorable view of proposals involving the artist in the initial planning and design side-by-side with the overall development team."[14] Collaboration continued to be stressed the following year when the Art in Public Places category included the Design Arts/Visual Arts Collaboration initiative, for projects involving visual and design artists.[15]

By 1990 Michael Faubion was concerned that recent proposals for object sculptures, the type of public art commissioned in the 1970s, didn't reflect more current developments in the field.[16] Peer panels had been commenting that public art applications were not as dynamic and interesting as they once had been. In 1991, in response to recent Congressional budget cuts and complaints from selection panels, the NEA proposed combining the Art in Public Places and the Visual Artists Forums categories of funding.[17]

Ideally, a new focus on dialogue and education would have fostered discussions that prompted fresh ideas about public art. But the new funding categories were potentially both prescriptive and exclusionary. This constituted a shift of emphasis, if not policy. After over two decades, the NEA abandoned its early support of independent object sculpture in favor of a more inclusive and collaborative approach to the creation of public art. Doubts about the viability of the type of public art that Serra made were soon encoded in national policy.

In 1991, the NEA awarded 14 grants in the Art in Public Places category, highlighting projects "to support artists' design and construction of a neighborhood park for senior citizens in North Philadelphia, the redesign and transformation of a World War II firing range into a place of art on the campus of the University of California/San Diego, and the creation of an outdoor medieval castle-style amphitheater at the University of Nebraska in Omaha."[18]

In 1992 the same panel members awarded grants for both public art and visual artists forums. An emphasis on social problems and multiculturalism was evident in the support for "the design of temporary billboards in Detroit with an anti-drug message; a memorial in Salem, Massachusetts to those who were persecuted and executed during the 1692 witch trials; and the final stage of a Zuni kachina murals project on the interior walls of a restored 17th-century mission in Zuni, New Mexico."[19]

By 1993 the two funding categories were merged officially and funded projects ranged "from the creation of a mural focusing on deafness and challenges faced by the hearing-impaired to support for two artists to participate in the development of a project to preserve and improve a section of Cascade Valley Park, a 1500-acre site in an historic inner-city area along the Old Erie Canal in Akron, Ohio."[20]

This consolidation of funding categories was in place for too brief a time to evaluate.[21] But it is clear from the type of funded projects that when Tilted Arc was removed in 1989, for the national arts agency, it was representative, perhaps definitively so, of the old order of public art. For NEA funding at that time art in a public place had to address, obviously and directly, the social situation of a site.


Public Art Policy at the GSA go to contents

The GSA's Art-in-Architecture program, based on the premise that art was a desirable part of architecture and the built environment, commissioned art for federal buildings with a small percentage of construction costs, usually .5%.[22] In 1972, after the GSA had been commissioning art for its buildings sporadically for nearly ten years, President Nixon asked the NEA "to recommend a program for including art works in new Federal buildings."[23] According to the process established early the following year, the NEA appointed panels of art professionals (peer panels) that would, with a representative of the building architect, select a number of artists appropriate to each GSA project and rank them in order of preference. The final decision on this and all agency matters was up to the GSA administrator.[24] This was the practice when Serra was commissioned to create a sculpture for Federal Plaza.

Tilted Arc was not the first GSA sculpture to get a negative press. In 1966 a mural by Robert Motherwell in Boston proved so controversial that the Art-in-Architecture program was halted for six years. Charles Ginnever's Protagoras (1974) in St. Paul was compared to "a potential machine-gun nest" and the "undercarriage of a UFO-type flying saucer;" Noguchi's Time Landscape (1975) in Seattle was related to the current pet rock craze; Claes Oldenburg's Batcolumn (1976) in Chicago received Senator William Proxmire's Golden Fleece Award for the most outrageous spending of tax dollars; and George Sugarman's Baltimore Federal (1978) was perceived as threatening because it "could be used to secrete bombs or other explosive objects."[25] But these initial reactions, not uncommon with public art, died down without someone committed to pursue the controversy. As a result of Diamond's actions, Tilted Arc became enmeshed in the politics of both the GSA and NEA.

After Diamond's hearing in 1985, Acting Administrator Dwight Ink, just before he left office, ruled that the GSA should seek a new site for Serra's sculpture. Senator Thomas F. Eagleton who called Ink "a hasty executioner"[26] and other concerned members of the Senate committee on governmental affairs had reason to think that the new GSA Administrator, Terence Golden, would have acted differently. Prior to his appointment, they had asked for "comments on the Art-in-Architecture program as administered by GSA; the role of the Regional Administrators as art judges and executioners; the role of the GSA in working with the NEA; (and) the role of the Regional Administrator in disposing of site-specific work."[27]

Golden's interest in art was unusual for a GSA administrator. He had taken courses in drawing and watercolor and tried his hand at sculpture.[28] However, he didn't much like Tilted Arc and felt it was a "disaster for the people living there. It didn't look good, was a source of graffiti, and interrupted views of the park (Foley Square)." Nevertheless, he saw the controversy as a direct result of Bill Diamond's actions, his "personal mission from God to take out this blight." Golden, a friend of Diamond's, saw the New York regional administrator as "a control freak." But so was he, he said, and he held the higher office.

Determined that nothing would happen to the sculpture while he was at the head of GSA, Golden decided "to put it on a back burner and study it to death." He thought the GSA had more important issues to address than the sculpture at Federal Plaza - issues of health and environmental safety in buildings, problems of major costs, the need for re-organization, and the quality of the work force in New York.[29] He felt strongly that Tilted Arc "was a low priority matter in the public political arena and it consumed way too much time." And so he concentrated on new GSA construction in New York, Chicago, Oakland, and Miami, as well as the completion of the Federal Triangle in Washington and the restoration of Blair House, the Vice President's residence. He also arranged to borrow art from the National Museum of American Art for government offices.

Concurrently, Richard Andrews, director of the NEA's Visual Arts Program from 1985 through 1987 and previously director of Seattle's highly acclaimed public art program, felt a personal mandate "to invent a capacity for on-going NEA involvement in the unprecedented process concerning Tilted Arc."[30] Consulting with the GSA and the NEA chair, attorney Frank Hodsoll, who saw the controversy basically as a contract dispute, Andrews convened a panel for considering alternative sites. Golden saw the 1987 deliberation chaired by Theodore Kheel as just an "event to keep things going, just busy work because nothing was going to happen" while he was in office. And indeed, nothing did.

By the fall of 1988 the GSA leadership was again in transition and the relationship between the GSA and NEA became increasingly strained. Terry Golden had resigned the previous March. After acting administrator John Alderson was not approved by the Senate, he was followed by another acting administrator, Richard Austin. At the Art-in-Architecture program, Marilyn Farley who had worked with Don Thalacker and had been acting director since his death in 1987,[31] was replaced by Kenneth Anderson, previously with the National Park Service. Dale Lanzone (also from the Park Service) was named director of arts and historic preservation; he subsequently controlled the Art-in-Architecture program.

The public art selection process was also in transition, prompted in part by requests for greater public participation that emerged at the Tilted Arc hearing. Before he left office, Richard Andrews at the NEA together with Marilyn Farley at the GSA developed a new procedure and implemented it on a trial basis for one year. Under the Andrews/Farley plan, the NEA appointed a panel consisting of the architect-engineer, two local residents knowledgeable in the arts and serving as community representatives, two local or regional art professionals, one nationally recognized art professional with experience in public art to serve as chair, and the GSA regional administrator, ex-officio. The initial meeting took place at the project site where panel members discussed the nature of an appropriate art project, potential places for it, and possible artists. At the second meeting they selected three to five artists and ranked them in order of preference for final selection by the GSA administrator. At the final meeting they reviewed the artist's proposal. At the time of the Tilted Arc selection process, the panel's responsibility ended with the selection of the artist.

In the spring of 1988 the new staff at GSA proposed different guidelines giving greater control of the selection process to the GSA. Under these recommendations, the GSA appointed three of the six panel members; of these the regional administrator designated two. The NEA appointed two local or regional art professionals and one nationally recognized art professional with experience in public art, subject to approval by the director of arts and historic preservation (who now had jurisdiction over the Art-in-Architecture program). The GSA chaired the first meeting, outlined the criteria for the project, provided directions to the panel "indicating material, design, placement, and style of art to be considered," and prepared the pre-site report.[32]

Under the new proposal the Public Building Service Commissioner (rather than the GSA Administrator) approved all commissions. For those under $50,000, the regional administrator made the final selection. This increasingly localized process reflected the Reagan administration's decentralization policies. It also gave the GSA almost complete control of the selection of art. Indeed Michael Faubion, acting director of the NEA's Visual Arts program, observed that the GSA had been acting independently for some time,[33] and recommended that the NEA not participate in the process as outlined. Nevertheless, the GSA adopted it[34] and in April 1989, Hugh Southern, acting director of the NEA, formally terminated the national art agency's seventeen-year relationship with the GSA.[35]

From then on, officially, the GSA's arts and historic preservation division appointed the selection panel, prepared the report of the pre-site meeting led by the regional administrator, and, by matching artists' current selling prices to the art budget, identified appropriate individuals for consideration by the selection panel. This process, without any checks and balances, is open to up front and behind-the-scenes control by a single individual, the director of the arts and historic preservation division.[36]

Dale Lanzone viewed the break with the NEA as inevitable. He felt that the NEA treated Art-in-Architecture commissions as a grant to the artist while the GSA considered art real property, acquired in the same way as cars and air conditioners. Later Serra would characterize the decision to remove Tilted Arc as an example of "the priority of property rights" typical of the Reagan and Bush administrations, that supported "art only as a commodity."[37]

Lanzone's initial goal as head of the Art-in-Architecture program was to avoid controversy. Specifically, he said, he was "against imposing New York values." Towards that end, in 1991 the GSA began selecting only figural work. The first published GSA art bulletin described a commission for the Los Angeles Federal Building that included sculpture by Jonathan Borofsky, Tom Otterness, and Joel Shapiro, as follows:

It is the energy of the figure that unifies these three artists. Each uses the space to refer to the human form and for Los Angeles this human energy translates easily into the busyness of one of America's ever- expanding cities. For visitors and employees alike these three new artworks of international significance combine to represent human experience.[38]

But Representative Edward R. Roybal, the 75-year-old Democrat for whom the building was named and who then chaired the House subcommittee that oversaw the GSA and its budget, objected vehemently to images of nudity in Otterness's sculpture and briefly had them removed before a compromise was reached with the artist.[39]

Clearly a strategy of figurative art was not the answer to avoiding controversy. Lanzone was learning on the job. He "coached" Otterness in the development of his sculpture, tried to direct Michael Heizer's project for a GSA commission in Long Beach, California and, by his interference allegedly caused the withdrawal of two artists selected to create art for a court house in Newark, New Jersey.

By 1993 Lanzone, sounding more like a seasoned public arts administrator, acknowledged that the fate of public art was unpredictable at best and always vulnerable to a negative campaign by "one compulsive person" who might write Congressmen and organize opposition. Although he was referring to a recent controversy over a sculpture by Luis Jimenez,[40] he might have been describing the saga of Tilted Arc.

In 1996 Dale Lanzone went to work for Marlborough Gallery in New York, as head of a new department on public art. The GSA Art-in-Architecture program was moved from the jurisdiction of the arts and preservation division under real estate policy to the office of portfolio management in charge of asset management. Rober A. Peck, Commissioner of the Public Buildings Service, a presidential appointee, initiated an extensive program review.[41] On October 15, 1996 GSA hosted a national workship at the headquarters of American Institute of Architects, where he had previously worked.

In September 1997 Peck announced the creation of the Historic Buildings and the Arts Center of Expertise under the direction of Rolando Rivas-Camp, consolidating three existing programs: the Art in Architecture program commissioning public art, the Fine Arts Program managing GSA’s entire collection of art, including nineteenth century and WPA works, and the Historic Buildings Program concerned with preservation policy, restoration, adaptive reuse issues and the like.

The following year revised program guidelines provided a new focus with roots in the past, "particularly during the first four decades of this century when artists and architects collaborated in the creation of lighting fixtures, gates, elevator doors and surrounds, as well as murals and sculptures." Lamenting that "such collaborations and architectural ornamentation were eliminated in post-World War II architectural design,"[42] the new guidelines sought a return to this architecture based practice.

The Art in Architecture Program strives for a holistic integration of art and architecture. Through a collaboration - from initial concept through construction - among artist, architect, landscape architect, engineer lighting specialist, and practitioners of other disciplines can work as a team to create new expressions of the relationship between contemporary art and Fedreal architecture. By focusing the Art in Architecture Program in this manner, we will provide the American public with Federal buildings and courthouses that are pleasing and functional, but that will also enrich the cultural, social, and commercial resources of the community where they are located.[43]

These guidelines would in all likelihood have precluded the commissioning of Titled Arc.


Deaccessioning Public Art go to contents

The dangerous precedent most feared by Tilted Arc's supporters was that its removal would lead to a wholesale destruction of public art.[44] It would seem that, if nothing else, the fate of the sculpture would have prompted the development of an official policy to control the deaccessioning of public art, from the federal level on down.[45]

Before he left the NEA, Richard Andrews developed a procedure that specified a period of ten years before any work could be considered for removal and guaranteed input from art professionals for any decision involving "the quality of the work itself as representative of its style or genre, and its relation to the public context."[46] Either the sponsoring agency or the artist could request a review prompted by concerns over the safety of the public or the art work, maintenance or condition problems, or changes in the site affecting the art.

Any review would include the artist and more than one independent professional who would consider contract issues as well as public participation in the debate.[47] If removal were deemed appropriate, a separate nonprofit organization would be asked to appoint a panel including representatives from the "visual arts (artists, curators, art historians, arts administrators); designers (architects, landscape architects, urban planners); and the broader community (preservationists, arts or public interest lawyers, social psychologists, policy analysts, community activists)." Only after exploring alternative measures, would the panel consider relocation of the work or sale, loan, trade, or gift (based on professional appraisals) with resulting funds used for future public art projects.[48] The panel's recommendation would be final and binding and the sponsoring agency would have to document the entire process.

The NEA submitted these guidelines to the GSA but they were never approved. Instead until 1998 the GSA worked under guidelines (never formally or officially approved) that included a review/deaccessioning policy that, like the commissioning process, can basically be controlled by a single individual at the agency. A minimum of five (rather than ten) years is necessary before review, unless "life safety risks, conservation, or preservation issues are involved." Proposals for removal from regional administrators require only "a background and issues statement, proposed action, and the advantages and disadvantages of the proposed action." The arts and historic preservation division of GSA would then submit a recommendation with "a summary of the issues; pros and cons of the proposed action; the regional proposal; and a recommendation to the Commissioner, Public Buildings Services." The final decision would be up to the GSA administrator.

In 1998 the Fine Arts Program Desk Guide included a chapter on relocation, removal and deaccessioning. The section on relocation begins: "Adverse public opinion does not justify the relocation or removal of artwork."[49] Similarly, the section on removal begins: "A work of art should not be removed simply because it is controversial or unpopular." Rather, any such action should be prompted by concerns about the safety of the artwork. Procedures stress working with the artist and a reminder that art made after 1991 is covered by the Visual Artists Rights Act of 1990 and therefore any relocation requires the artist’s written approval. In cases of dispute, a mediation process may be used: "Consideration for removal, relocation, or deaccessioning a work of art should involve the same degree of careful review as a decision to commission a work of art, informed by professional judgment and interests of the public, and proceeding according to set procedures." If relocation is determined, "For historical and financial reasons, artwork should be relocated as close as possible to its original location." Under these procedures the removal of Tilted Arc would have been highly unlikely, if not impossible.

Nevertheless many local programs, like New York City's Art Commission which must approve all permanent structures on city property and the Department of Cultural Affairs' Percent-for-Art program, still have no deaccession policies at all. This curious lapse in public policy implies that public art commissions are still considered permanent and that the Tilted Arc case is viewed as an anomaly - discussed as something to be avoided at all costs, but with no institutional protection in place should it occur.

At the time of this writing, deaccession policies are rare, the NEA no longer supports public art, and for nearly a decade after the removal of Tilted Arc at the GSA a single person could control both the selection and removal of a work of government commissioned art. As Lanzone's experience showed, neither the selection process nor the judgment of the NEA panel alone could be blamed for the Tilted Arc controversy. Panels make questionable selections and public art without institutional protection, is, by virtue of its placement, vulnerable to all kinds of attacks.

Both the rise and decline of recent public support for art were products of Republican administrations. Like most policy shifts, they were directly related to the economy. In the only campaign statement he made on the arts, Reagan compared them to sports that he thought did just fine without government subsidies (although stadium construction and repairs are routinely supported by public money and their design typically not a matter of public participation[50]). A working paper prepared by the conservative Heritage Foundation think-tank considered the basically small public audience for art a given. Reagan's appointee as head of the NEA, Frank Hodsoll, favored support for large established cultural institutions rather than individuals or community-based organizations. In New York City the Department of Cultural Affairs' budget was cut the same year that Tilted Arc was removed. Art policies throughout the Reagan years reflected far reaching directives aimed at privatization and decentralization.[51] But to what extent did they reflect public opinion?


Public Art and The Legal System[52] go to contents


Aesthetics and law are an odd couple, rather like spouses who come to their union from different worlds... Aspirational and abstract, aesthetics and law are elusive in themselves and mercurial when joined together.
    John J. Costonis


As the process that commissioned Tilted Arc was unraveling through various bureaucratic maneuvers in New York and Washington, Richard Serra sought legal means to protect his sculpture arguing initially on first and fifth amendment grounds,[53] and then invoking the recently signed Berne convention. Ultimately, however, the outcome was determined by a contract issue, in this case a vaguely worded article in the GSA contract.

Serra was not the first artist to resort to legal remedies in conflicts with federal patrons. Nor was his the first publicly commissioned work to be removed from its intended site.[54] Serra's first lawsuit in December 1986 named GSA administrators Diamond and Ink, and alleged that the GSA's decision to remove Tilted Arc violated his rights under the free speech clause of the First Amendment, the due process clause of the Fifth Amendment, federal trademark and copyright laws, and state law.[55]

The southern district court (Milton Pollock, judge) issued two opinions, both in favor of the defendants. The first dismissed Serra's claims against Diamond and Ink on the grounds that they had qualified immunity as federal employees because they represented the government (which has sovereign immunity) and they had not acted beyond their granted authority or in an unconstitutional way.[56] Serra did not appeal this decision.

In a second opinion, the district court granted summary judgment (decision on legal grounds, accepting all facts pleaded by Serra as being true) against the sculptor based on the premise that GSA actions were not based on the content of the sculpture. Judge Pollock ruled that the decision to relocate the sculpture was "a content-neutral determination made to further significant government interests and that the hearing provided all the process that was due."[57]

Serra appealed this decision, challenging the rejection of his free expression and due process claims.[58] The appellate court, presided over by a three judge panel that included a former counsel to the Museum of Modern Art, upheld the lower court's summary judgment.[59] It concluded that Serra's first amendment rights were not violated. While assuming that Tilted Arc was expression "protected to some extent" by the first amendment, the court ruled that "Serra relinquished his own speech rights in the sculpture when he voluntarily sold it to GSA; if he wished to retain some degree of control as to the duration and location of the display of his work, he had the opportunity to bargain for such rights in making the contract for sale of his work."[60]

The reference to the GSA contract raised a murky issue. It was always understood by Serra and representatives of the Art-in-Architecture program that he was being commissioned for a permanent piece. As Serra recalled at Diamond's hearing, he was assured early in the project by Don Thalacker, director of the program,

You get one chance in your lifetime to build one permanent work for one Federal building. There is one permanent Oldenburg, one permanent Segal, one permanent Stella, and one permanent Calder, and this is your opportunity to build a permanent work for a federal site in America.

For Serra, "The inducement was permanency. The GSA policy was, and still is, to build permanent works by nationally recognized artists for federal sites. That was their promise to me, and that pledge has been made to upwards of 250 artists in the United States."[61] Serra's view of the commission was confirmed by Julia Brown, project manager for the Art-in-Architecture program.[62]

Article 6 of the contract, entitled Ownership, stated:

All designs, sketches, models, and the work produced under this Agreement for which payment is made under the provisions of this contract shall be the property of the United States of America. All such items may be conveyed by the Contracting Officer to the National Collection of Fine Arts-Smithsonian Institution for exhibiting purposes and permanent safekeeping.[63]

According to Don Thalacker the word "work" had been inadvertently included in the contract. This clause was intended to insure the conservation of preparatory studies since the GSA did not have adequate storage space and, in times of national emergency, provide safekeeping for portable artworks. But the wording was vague. While the contract did not specifically grant the government the right to remove a commissioned sculpture, it also did not specifically prohibit it. Serra lost the contract argument. Although he had been given verbal assurance that this was a permanent commission and removal would be a violation of contract, the court ruled that he had, in the contract, relinquished his right to control the piece.[64]

In its own way, the appellate decision was as vague as the contract when it came to Serra's first amendment rights. At one point the court posited, "Even assuming that Serra retains some First Amendment interest in the continued display of Tilted Arc...", but the nature of that interest was never defined.

Instead the court upheld a "time, place, and manner restriction" that applied to situations where content was not being suppressed, the government had a significant stake, and other channels of communication still existed. Relocating the sculpture, it was argued, conformed to these requirements. GSA had an interest in keeping the plaza "unobstructed," and Serra had already had six years to convey his message in the plaza. Since the First Amendment "protects the freedom to express one's views, not the freedom to continue speaking forever," relocation of Tilted Arc at this point did not "significantly impair Serra's right to free speech." He could still exercise his right to free expression in other ways:

Notwithstanding that the sculpture is site-specific and may lose its artistic value if relocated, Serra is free to express his artistic and political views through the press and through other means that do not entail obstructing the Plaza.

This opinion, however, ignored the specific nature of the commission and that Serra's medium of communication is sculpture, not the press. If one accepts the premise that the site is part of the work's content, then moving it is altering it (and therefore changing its meaning). It would be unthinkable, say, to change the color of a painting or to transform the content of a written work similarly.[65] Serra’s claim (Article 211) compared it to "governmental destruction or tampering with the sole copy of an author’s manuscript for reasons of its content."

The issue of whether this decision was "impermissibly content-based" involved the court in a discussion of the content of abstract art.[66] In all official communications, GSA officials stated (as they had been instructed on advice of counsel) that their decision was based only on the obstruction of the plaza. Thus the appellate court decided:

Serra is unable to identify any particular message conveyed by Tilted Arc that he believes may have led to its removal. In view of the uncertainty as to the meaning of Tilted Arc and in the face of the overwhelming evidence that it was removed solely because of its obstructive effect of the Plaza, Serra has failed to present any facts to support a claim that Government officials acted in a `narrowly partisan or political manner.' But even if the GSA decision were based on a judgment of esthetic merit (as several of the petitions in fact stated), that was also permissible, according to precedent. This ruling suggests that abstract art is considerably more at risk in the legal system than art with recognizable subject matter.

The court's finding, as Barbara Hoffman argued, was substantially based on the premise that "the idea can be divorced from its manner of expression." For an artist, especially an abstract artist, the medium and the message are essentially one and the same. As Hoffman put it:

The "sheer size of the sculpture" was a part of its message, a message selected for the site on the implicit promise of permanence by formal procedures utilizing professional art experts selected by the GSA. Moreover, there was no evidence that the sculpture prevented the social use of the plaza in any way. Serra was entitled to a trial on that issue. The court demonstrated an improper deference to the political aim of the GSA in allowing its taste claim to override Serra's artistic expression and the professional advice of its Art-in-Architecture Program's administrators and art experts.

The court considered the government's rights as patron and owner paramount, not to "be dampened by unwarranted restrictions on its freedom to decide what to do with art it has purchased." Art is property and the government owns it. Property rights apply to all art ownership, not just the government's, but the government as custodian for the entire public has moral and ethical obligations that were ignored by making this primarily a property issue. The public's right to the material could be argued as outweighing government ownership.[67]

As far as due process was concerned the court held that even if Diamond prejudged the issue before he called the public hearing (as he demonstrably did by sending out inquiries for alternative sites for the sculpture), "without a protected property or liberty interest, Serra was not constitutionally entitled to a hearing before the sculpture could be removed... Even if Diamond was not entirely impartial, Serra received more process than what was due." By dismissing the hearing, the court never directly addressed the improprieties surrounding this central element of the controversy and its subsequent impact on the outcome and public opinion.

Since Ink was not charged with partiality and he reviewed the entire case, the court decided that "the effect of Diamond's prejudgment, if any, was marginal." The court concluded that since Serra was given the opportunity to defend his position before both Diamond and Ink, "any due process requirement that might have arisen in the context of this case was clearly satisfied." But Diamond lied throughout the process and Ink knew it.

There were many vagaries and arguable assumptions in the appellate court's decision. The law, in rather alarming ways, mirrors national cultural perspectives. Currently First and Fifth Amendment law seems to protect verbal and written forms of expression far more stringently than it protects visual forms, a clear reflection of widely held values. Even if one sees the Serra case only as a contract issue, the status of works of art under the law are far from clear or definitive, and reflect a highly ambivalent attitude towards art, especially abstract art.


Artists Rights in Europe go to contents

Late in the legal battle to save Tilted Arc, Serra tried to invoke the Berne Convention, first signed in Switzerland over a century ago on September 9, 1886. Revised a number of times over the years, the current version dates from 1971 and has been signed by 78 countries in Europe and elsewhere. Serra repeatedly called for U.S. ratification. A significant part of this doctrine protects the right to artistic integrity or droit moral (moral rights).

Specifically, moral rights laws extend the artist's control over a work of art after it has been sold. It maintains his/her right "to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to the work."[68] Controlling the integrity of the artwork protects the artist's reputation.

To date eleven states, including New York, have passed legislation that includes moral rights provisions,[69] but the absence of national legislation left Tilted Arc unprotected because it was commissioned by the federal government. The U.S. incorporated a limited version of the Berne Convention providing protection for American publishing companies into copyright law on March 1, 1989, another example of the greater protection granted to written expression.[70]

Even the passage of the Visual Artists Rights Act (VARA) of 1990, introduced by Senator Edward Kennedy, would not have helped Serra. Combining elements of both California and New York statutes, it sought "to prevent any intentional distortion, mutilation, or other modification of [a] work which would be prejudicial to [the artist's] honor or reputation" and "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work."[71] But "VARA applies only to a restricted category of visual artworks, extends only limited rights, and is subject to loopholes, exclusions, and waiver provisions that substantially erode its powers."[72] Claims of distortion or mutilation are complicated when applied to site-specific works. And public art that takes a functional form (seating, lighting, bridges, etc.) is not easily classified as art, and therefore not clearly protected.

A continuing part of the problem of resolving artists rights in the courts stems, as Serra and many others have argued, from this country's strong emphasis on property rights. Art is seen only as a special kind of property. This premise prevailed throughout the Serra rulings as well as the limited acceptance of the Berne Convention. Laws both reflect public values and influence them. It is unlikely that the U.S. will adopt moral rights fully anytime in the foreseeable future.


The Legal Profession and Change go to contents

Clearly public art enters the legal system at risk. Barbara Hoffman criticized contemporary legal doctrine for "its failure to accommodate or even adequately define the issues and competing values at stake in the public art context."[73] She attributed this failure "in part to the fact that neither legal theory nor art policy have been inspired by the vision of or located in the broader context of a sociopolitical public realm." The courts may also be a perilous place to decide matters pertaining to art for a more basic reason. As John Costonis observed, legal esthetics are problematic due to the "absence of a consensus on beauty's canons and nonverifiability of their objective character; time as a relativizer of taste; vagaries of cultural diversity and of perceptual response; and the exuberance of artistic creativity, which refuses to be immobilized by the rules or traditions of received styles."[74]

As the Serra case made its way through the courts, it became apparent that judges were forming opinions based on two antithetical principles: legal precedent and the esthetics of contemporary art. The legal system is structured on precedent. Judicial opinions are based on previous cases that invoke issues that are similar or analogous to the one they are hearing. Thus a court's rationale for a precedent-setting opinion will explain it as evolutionary rather than revolutionary.[75]

A central premise of modern art, however, has been change, the more radical the better. One of the tenets of modernism in general is that history is not a useful model, and cannot be seen as a continuous, rationally explicable progression.[76] It is no exaggeration to say that the history of modern art has been seen primarily as a history of change and overthrow with each successive "ism" (cubism, futurism, expressionism, constructivism, etc.) replacing its predecessor with a new definition of what art is and should be.[77] One of the most scathing criticisms that one could level at this constantly new art was that it was in some way derivative.

In more recent decades with the acknowledged demise of the avant-garde,[78] change per se is no longer a prerequisite of serious art, but newness is still considered an admirable quality. In contemporary art the emphasis on new formal qualities has been replaced by an insistence on the inclusion of new subject matter, be it specific in nature (images pertaining to previously unrepresented groups based on race, ethnicity, gender and sexual preference) or analytic (such as a psychoanalytic or deconstructionist approach to signs and symbols). At Diamond's hearing, many recognized that the newness of contemporary art might be the problem and stressed that this newness was also part of its content and function.

Serra, as discussed above, is essentially a modernist. His intention, as manifested in his 1967 Verb List, was to redefine sculpture in terms of sculptural acts and processes that might be brought to bear on any number of materials, most of them non-traditional. His extensive use of steel merges a material of the modern industrial age with formalist concerns of a modernist esthetic. Serra's (re)definition of sculpture was, in fact, without precedent. Thus modern art in general, and perhaps Serra's work in particular, may be especially provocative, if not antithetical, to legal minds professionally set in precedent and tradition, functioning daily as antagonists in arenas of opposition.

Ideally all art styles should be equally protected by the legal system, but we have already seen that abstract works (key to the modern movement) are particularly vulnerable. Clearly not all members of the legal profession are insensitive to modern art. However, given the nature of legal training and practice, it is not surprising that so many lawyers and judges so often find works of modern art threatening.

The first objections to Tilted Arc came from a judge and at Diamond's hearing judges were among its most passionate detractors. The recent history of public art shows that complaints, if not antagonism, from lawyers and judges has been especially vociferous. This may partially be explained because federal buildings often house their offices and they are used to making their opinions heard. Nevertheless, it is worth exploring further whether the legal mind set accustomed to finding validation in precedent, is not in some basic way antithetical to a reasoned consideration of issues pertaining to new and controversial art.


Notes: go to contents

The Public Policy Context

1. Judith H. Balfe and Margaret J. Wyszomirski, "Public Art and Public Policy," The Journal of Arts Management and Law, Winter 1986, pp.5-29, discuss the differences in commissioning practices in detail. [text]

2. The ad hoc evolution of this support is analyzed by John Wetenhall, "Camelot's Legacy to Public Art: Aesthetic Ideology in the New Frontier," in Senie and Webster, Critical Issues in Public Art, pp.142-70. [text]

3. Quoted in Edward Rothstein, "You Can't Please All of the People..." The New York Times, July 26, 1992, Sect. 2, p.1. [text]

4. For a detailed discussion of Nancy Hanks' accomplishments, see Margaret Jane Wyszomirski, "The Politics of Arts Policy: Subgovernment to Issue Network," in Kevin V. Mulcahy and Margaret Jane Wyszomirski, America's Commitment to  Culture: Government and the Arts (Boulder, CO: Westview Press, 1995), 47-76. [text]

5 Quoted in Malcolm N. Carter, "The NEA: Will Success Spoil our Biggest Patron?" Artnews, May 1977, p.35. [text]

6. These statistics are taken from Wyszomirski, "The Politics of Arts Policy," cited above. [text]

7. See, for example, Robert Brustein, "Whither the National Arts and Humanities Endowments?" The New York Times, Dec. 18, 1977, Sect. 2, pp.35, and Carter, "The NEA," cited above. [text]

8. See Wyszomirski, "The Politics of Arts Policy," cited above, p.65ff. [text]

9. There is extensive press coverage of the events from the Corcoran Gallery's cancellation of the exhibition of works by Robert Mapplehtorpe in Washington; the trial of the Contemporary Art Center in Cincinnati for exhibiting the same exhibition which had venues in five cities; the passage and repeal of Jesse Helm's so-called decency amendment; and John Frohnmayer's tenure as head of the NEA.  For an insightful study of these and other censorship issues, see Steven C. Dubin, Arresting Images; Impolitic Art and Uncivil Actions (New York: Routledge, 1992). [text]

10. Quoted in Margaret Jane Wyszomirski, "From Accord to Discord: Arts Policy During and After the Culture Wars," in Mulcahy and Wyszomirski, America's Commitment to Culture, cited above, p.13. [text]

11. There were few to link the TA controversy with Mapplethorpe and Serrano.  Margaret Jane Wyszomirski, "The Politics of Arts Policy," cited above, p.64, observed that it "presaged concerns about artists rights and community standards that would arise later over publicly supported more generally."  Dario Gamboni, The Destruction of Art: Iconoclasm and Vandalism since the French Revolution (London: Reaktion Books, 1997), p.161, observed that the "end of TA coincided with a political campaign against `offensive' art strongly reminiscent of the McCarthy decade." [text]

12. Ford is quoted in Ronald G. Shafer, "A Touch of Class?  Washington Planners Beset by Critical Public Over Their Efforts to Put Art Into Architecture," The Wall Street Journal, Sept. 21, 1976, p.48.  For a more complete discussion of La Grande Vitesse, see John Beardsley, Art in Public Places (Washington, D.C.: Partners for Livable Places, 1981), pp.14-24; and Senie, Contemporary Public Sculpture, pp.100-104.  See also Robert Sherrill, "What Grand Rapids Did for Jerry Ford - and Vice Versa," The New York Times Magazine, Oct. 20, 1974, pp.31-33, 72-92. [text]

13. NEA press release dated Sept. 1987. [text]

14. NEA press release dated Oct. 17, 1988. [text]

15. Press release dated Oct. 2, 1989. [text]

16. Conversation with the author, Oct. 20, 1993. [text]

17. These were the reasons for the change of policy according to Susan Lubowsky, then director of the Visual Arts program, in a telephone interview, Nov. 26, 1991.  Valuable information regarding NEA public art policies and directions was also provided by Bert Kubli, then NEA Program Specialist for Visual Artist Public Projects, Special Projects, Challenge Grants. [text]

18. NEA press release,"Grants to Support Public Art and Visual Art Discourse Announced,"  Aug. 30, 1991.  Awards totaling $596,000 were made in both categories. [text]

19. NEA press release, "NEA Support for Public Art and Visual Art Discourse Announced," Sept. 4, 1992.  Forty grants were made for a total of $430,000. [text]

20. NEA Press Release, "Grants to Support Public Art and Encourage Public Discourse Announced," Aug. 23, 1993.  A total of 45 grants totaling $475,000 were awarded. [text]

21. In 1995 under Jane Alexander agency categories and funding guidelines were completely revamped in response to increased budget cuts and widespread lobbying for the agency's demise. [text]

22. For a further discussion of the basis of percent for art programs see Senie, Contemporary Public Sculpture, chapt. 2. [text]

23. Official White House statement, known colloquially as Nixon's design message, dated May 16, 1972. [text]

24. Letter dated Feb. 14, 1973 from Arthur F. Sampson, Acting Administrator for GSA to Nancy Hanks, chair of the Endowment.  This procedure was in place at the time of the Serra commission. [text]

25. For a more detailed discussion of the reception of earlier GSA commissions, see Donald Thalacker, The Place of Art in the World of Architecture (NY:Chelsea House Publishers with R.R. Bowker, 1980).  [text]

26. In a letter to Ink dated May 31, 1985, Eagleton wrote: "It was well known to you that various Senators had inquired of Mr. Golden as to how he would handle the Tilted Arc matter once he was in office.  Yet, at one minute to midnight, you decided to act without giving Mr. Golden a chance to give the issue a fresh and independent judgment. [text]

"While I agree that the Art-in-Architecture program may need procedural changes which would allow more local involvement and a closer working relation between artists and architects, I do not feel an existing sculpture, erected pursuant to all applicable review standards, should now be removed by an acting GSA administrator because he deemed earlier procedures inadequate." [text]

27. Letter from Eagleton, ranking minority member of the Senate committee on governmental affairs, to Golden dated May 3, 1985. [text]

28. I am indebted to Terry Golden for a very candid interview in May 1993. [text]

29.  Problems at the GSA were reported in The New York Times throughout the Tilted Arc controversy.  In 1979, the year of the commission, there was a growing kickback scandal involving GSA employees taking kickbacks from private contractors (Jan. 5, sect. IV, p.6; Mar. 10, p.6; Apr. 26, sect. II, p.11; May 12, p.8; May 27, p.42; July 31, p.14;); this was followed by the forced resignation of GSA Administrator Solomon (Jan. 24, p.14; Jan. 27, p.8, 21; Mar. 3, p.9); allegations of mismanagement, inappropriate spending, fraudulent billing and lax financial controls (July 16, p.1; July 20, p.6; Sept. 27, sect. IV, p.22; Dec. 18, p.16).  A new GSA Administrator, Gerald P. Carmen, made changes in staff, instituted some reforms, and in 1982 named a new advisory board to help the agency improve efficiency and operation (Jan. 10, p.40).  In 1983 there were reports of rats and robberies at the GSA (June 6, sect.I, p.37; Nov. 15, sect.I, p.32), and the National Academy of Public Administration said the GSA was doing a poor job of keeping buildings clean and safe.  A GSA employee, Bertrand G. Berube, who was dismissed that year for saying that many federal buildings posed health hazards because maintenance had been deferred to save money, subsequently won a lawsuit for $560,000 (Sept. 4, 1988, sect. I, p.33).  In 1984 the GSA there were problems with asbestos (April 14, sect.I, p.7) and the deputy regional administrator in NY, Edward H. Wyatt, Jr., was arrested for taking bribes that went back to 1980 (Aug. 10, sect. A, p.1, sect. D, p.16), and subsequently pleaded guilty (Nov. 21, sect. B, p.5).  The same year former GSA commissioner of public buildings was sentenced to four years in federal prison for attempted extortion (Aug. 15, sect. I, pp.24; Nov. 22, sect. I, p.25), and two GSA officials were involved with private funds set up in 1980 to help finance Reagan's campaign (June 9, sect. I, p.14).  In 1985, a few weeks after the TA hearing, Wyatt was sentenced to two years in prison (March 22, sect. II, p.4).  By 1988, the year Golden resigned, the GSA was being investigated by a federal grand jury over allegations that a middle-level official had disclosed sensitive bid information from AT&T to competitors for telephone switching contracts (March 5, sect. I, p.33).  Golden was not implicated in anyway. [text]

30. Telephone interview in Mar. 1993. [text]

31. Thalacker had been a strong director and public advocate of the Art-in-Architecture program and a key player in the Tilted Arc controversy as it unfolded, providing agency support and guidance.  There are many who feel that the outcome might have been different had Thalacker lived and continued as head of the GSA program. [text]

32. The history of the relationship of the NEA and GSA in the panel process, as well as current concerns about current changes is outlined in a memo by Michael Faubion to Frank Hodsoll, through Jack Basso, Hugh Southern, Fred Kellogg and Art Warren, dated Oct. 28, 1988, Re: GSA Art-in-Architecture Program Proposed Changes in Selection Procedures.  The internal GSA document is referred to as Chapter 15. [text]

33. In the above-cited memo, Faubion noted: "Three out of five artists selected for projects over the last year have called the Endowment with concerns about conflicts between Endowment panel recommendations and GSA requests for changes in their proposals.  Recently, an artist called to say he had just found out his GSA-commissioned piece had been removed from its site several months ago, without his knowledge or permission.  After requesting advice from the Endowment regarding Tilted Arc, GSA has never responded with a decision and is, in fact, still planning to remove the sculpture, counter to the Endowment's advice.  And after requesting advice from us in conservation and deaccessioning policies, which was transmitted, GSA has chosen not to include that information in Chapter 15." [text]

34. A letter dated Apr. 13, 1989 from George P. Cordes, acting commissioner of Public Buildings Services (PBS), informed Hugh Southern, acting chairman of the NEA: " GSA's Regional Administrators are accountable within their regions for all aspects of our program activities, and therefore, they represent a significant Federal presence.  The responsibilities vested with the Regional Administrator are such that both the short and long term effects of accepting particular works of art into our property inventory must accommodate basic GSA management needs.

The modification to the Chapter 15 (the section of a larger document that outlined GSA's new selection process) that you cannot accept is one that is essential to us and allows Regional Administrators to chair or co-chair the initial pre-site panel.  It is critical for our regions to communicate fundamental issues that affect the character of the artwork for our projects.  We believe this modification clarifies GSA's project requirements without affecting the independence, integrity and professionalism of the nomination process." [text]

35. Letter from Hugh Southern to Richard Austin dated Apr. 27, 1989, indicating that up until that point Southern still believed that it would be possible to maintain a working relationship, and continued to hope that it might still be so in the future.

36. On May 20, 1993 an act, known as the "Art-in-Architecture Act of 1993" (S.998) was introduced by Senator Jeff Bingaman (Democrat from New Mexico) that would grant the GSA Art-in-Architecture program formal congressional authority and incorporate all selection procedures within that agency.  No mention is made of the NEA.  The act was referred to the Committee on Environment and Public Works, where it still resides at the time of this writing.

37. Lanzone's comments were made in an interview with the author in Jan. 1992.  Serra's remarks are from his introduction to  The Destruction of "Tilted Arc", p.5.

38. "Borofsky, Otterness, and Shapiro Create Figures for Los Angeles Federal Building," GSA Arts, Summer 1991, p.4. [text]

39. The controversy and Otterness's response is discussed below in the section on self-censorship in the art world. [text]

40. The controversy over Jimenez's Fiesta Jarabe, installed at the U.S. border station at Otay Mesa, CA. in 1992 depicts a Mexican couple dancing a traditional Mexican hat dance, was one over appropriate representation of cultural identity, a growing area of debate in public art controversy.  The sculpture was announced, in rather condescending language, in GSA Arts, Winter 1992, pp.1, 4.  For example, "Slick, colorful, and boisterous, the sculpture combines the Spanish and the Indian, representing the region's multiculturalism.... Jimenez's art successfully combines traditions for a distinctive festive flavor full of color and movement that celebrates and embraces the border culture."  The controversy, in this case, eventually subsided. [text]

41. I am grateful to William R. Caine, Fine Arts Specialist, Art in Architecture Program, for an update and explanation of the most recent GSA policies. [text]

42. Robert A. Peck, Commissioner, Memorandum for Regional Administrators, “Changes to the Art in Architecture Program,” March 15, 1998. [text]

43. Art in Architecutre Program Guidelines, March 1998. [text]

44. Tilted Arc is only one of a long list of publicly commissioned works that were dismantled or destroyed arbitrarily. The organization People for an American Way puts out a publication entitled Artsave that lists works that are considered to have been censored.  For a while abstract works appeared particularly vulnerable.  More recently works that appear to consider ethnic identity seem more at risk.  See for example Sylvia Hochfield, "The Moral Rights (and Wrongs) of Public Art," Artnews, May 1988, pp.143-46. [text]

45.  All museums have a policy that allows them, under strictly defined circumstances, to remove art from their collection.  Such deaccession policies usually require that, if sold, the money earned be used only to purchase art.  Although dispersed throughout the country GSA's public art constitutes a collection, and yet the only policy referring to its removal is predicated on perceived danger to it, stipulating that it be stored elsewhere on federal property for protection. [text]

46. See Going Public, pp.168-69 for an annotated version of this review process, highlighting points of particular concern. [text]

47. The specific conditions for review were:

  1. The condition or security of the artwork cannot be reasonably guaranteed.
  2. The artwork requires excessive maintenance or has faults of design or workmanship and repair or remedy is impractical or unfeasible.
  3. The artwork has been damaged and repair is impractical or unfeasible.
  4. The artwork endangers public safety.
  5. No suitable site is available, or significant changes in the use, character, or design of the site have occurred which affect the integrity of the work.
  6. Significant adverse public reaction has continued unabated over an extended period of time.
  7. The quality or authenticity of the artwork is called into question.
  8. The sponsoring agency wishes to replace the artwork with a more appropriate work by the same artist.
  9. Removal is requested by the artist.

The review process would also consider and include:

  1. Review of the artist's contract and other agreements which may pertain.
  2. Discussion with the artist of the concern prompting review.
  3. Opinions of more than one independent professional qualified to recommend on the concern prompting review (conservators, engineers, architects, critics, art historians, safety experts, etc.).
  4. Review of written correspondence, press, and other evidence of public debate. [text]

48. Under the last stipulation the artist, if feasible, would be given first option to purchase; any sale would be through auction, gallery resale, or direct bidding by individuals; trade would be through artist, gallery, museum, or other institutions. [text]

49. “Chapter 10: Relocation, Removal & Deaccessioning,”Fine Arts Program Desk Guide, p.60.  All other quotes are from this chapter. [text]

50. My thanks to Michael Kwartler and Burt Roberts for this provocative comparison. [text]

51. For a more detailed analysis see Gerald Marzorati, "The Arts Endowment in Transition," Art in America, Mar. 1983, 9-13; Carole S. Vance, "Restructuring the NEA," Art in America, Nov. 1990, 49-55. [text]

52. An abbreviated version of this section appeared as "Public Art and the Legal System," Public Art Review, Fall/Winter 1994. [text]

53. The first and fifth amendments read as follows:

54. For a discussion of other works of art that have been removed or destroyed see Jeffrey L. Cruikshank and Pam Korza, Going Public: A field guide to developments in art in public places (Amherst, MA; Arts Extension Service and the National Endowment for the Arts, 1988), pp.123- 31;  Barbara Hoffman, "Law for Art's Sake," Critical Inquiry, Spring 1991, pp. 544-48.  Hoffman published a later version in Law and the Arts, Fall 1991, with more examples found pp.44-52.  See also Artistic Freedom Under Attack, vol. 1, 1992, published by People For the American Way, a nonpartisan constitutional liberties organization based in Washington, DC. [text]

55. Richard Serra vs. United States General Services Administration, United States District Court, Southern District of New York, Docket no. 96 Civ. 9656, Dec. 17, 1986.  An edited version of Serra's complaint is reproduced in Documents, pp.199-205. [text]

56. Richard Serra v. United States General Services Administration, United States District Court, Southern District of New York, Dockett 33, 86 civil 9656, opinion #61441, decision by Judge Milton Pollock, Aug. 31, 1987.  An edited version of this decision is reproduced in Documents, pp.206-18. [text]

57. Richard Serra vs. United States General Services Administration, 667 F. Supp. 1042 (S.D.N.Y. 1987).  Judge Pollock's decision are summarized in Circuit Judge Jon O. Newman's ruling on Serra's appeal. [text]

58. The appeal filed by Serra on Dec. 15, 1987, United States Court of Appeals, For the Second Circuit, Docket No. 87-6231, is reproduced in Documents, pp.219-38.  An edited version of the brief filed by the defendants on Jan. 26, 1988, Docket Nos. 87-6231, 87-6251, is found in Documents, pp.239-45.  The arguments and issues are  analyzed by Barbara Hoffman, "Law for Art's Sake," Critical Inquiry, Spring 1991, pp.540-73, and in a later version with more legal detail in Law and the Arts, Fall 1991, pp.39-96.  All subsequent quotes, unless otherwise noted, are taken from the article in Critical Inquiry. [text]

59. The decision by Judge Jon O. Newman, United States Court of Appeals for the Second Circuit, Nos. 822, 823 - August Term 1987, dated May 27, 1988 is reproduced in Documents, pp.246-53. [text]

60. Richard Serra v. United States General Services Administration, 847 f.2d 1045, 1048, 1049 (2nd Cir. 1988). [text]

61. Documents, p.67. [text]

62. Brown stated: "In all stages of the decision making process it was understood by Serra, and by the government, that Serra was making a permanent work for that specific space. That principle is one of the foundations of the GSA Art-in-Architecture Program.  It is a national program that seeks to commission works of art of the highest quality for federal buildings across the country that will be, to as large an extent as possible, integral to the sites and spaces in question... To remove this work would counter an agreement that was made between the artist and the government, which was entered into every stage with careful and responsible deliberation.  (Documents, pp.85-6) [text]

63. The contract is reproduced in its entirety in Ink, Attachment J.  Article 6 appears on page 6 of the 29-page contract.  The GSA did organize a traveling exhibition entitled Art in Architecture in 1977 that was very well received. [text]

64. Attorneys Jack Guthman in conversation and correspondence with the author in (Dec. 1997), saw this as a clear contract issue, while Jean Reed Haynes in correspondence with the author (Sept. 1997) stressed that "there was a powerful contractual argument that, for whatever reason, did not prevail."  Barbara Hoffman, in conversation with the author (October 1993), suggested that the contract remains the best place to protect public sculpture. [text]

65. Hoffman took issue with the court's interpretation of the first amendment as applied to artistic expression.  She saw "a hostility to according full protection to nonpolitical artistic expression" and argued that "artistic expression in the public context should be accorded full First Amendment protection."   Most definitively she felt that Serra's claim was not given "the same careful analysis and protection that courts have traditionally reserved for other forms of speech."  She also challenged the court's opinion that Serra had other venues for free expression, especially in this commission: "The court's view that destroying an artist's past work does not suppress speech if the artist can create new work does little to promote one objective of public art programs: the creation of a cultural legacy." [text]

66. An interesting argument for the content of Serra's site specific art is made by Douglas Crimp, "Serra's Public Sculpture: Redefining Site Specificity," in Richard Serra/Sculpture (New York: Museum of Modern Art, 1986), pp. 40-56.  This hardly constitutes a legal definition of specific political content, however. [text]

67.  The most frequently cited precedent is Pico v. Board of Education which ruled in 1980 that the removal of books from a high school library because their content was deemed by the board of education to be "anti-American, anti-Christian, anti-Semitic and just plain filthy" was a violation of students' First Amendment rights.  Hoffman argues, "Even if the Pico standard of `partisan or political motive' arguably affords public school administrators discretion in removing books based on criteria of civility and taste in the public school environment, to afford such deference to government bureaucrats or, worse, to politicians does not seem to further any identifiable goals of public art programs." [text]

68. Article 6BIS of the Berne Convention reads as follows: 

(1) Independently of the author's economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

(2) The rights granted to the author in accordance with the preceding paragraph, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed.  However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed. [text]

69. Hoffman, p. 568, discusses the state versions of droit moral legislation, most of them modeled after California and New York.  She summarizes: "The New York model, though it does not prohibit destruction of art, does prohibit the display or publication of, or making accessible to the public in any way an altered, defaced, mutilated, or modified work of fine art without the artist's consent if damage to the artist's reputation is likely to result."

The various state statutes that address artists' moral rights are also discussed in Going Public, pp. 133-34. [text]

70. Excerpts from the Berne Convention Implementation Act of 1988, as they modify U.S. copyright law, are reproduced in Documents, pp.267-68.  Specifying those rights not affected, the act states: "The provisions of the Berne convention, the adherence of the United States thereto, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work, whether claimed under Federal, State, or the common law - (1) to claim authorship of the work; or (2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the work, that would prejudice the author's honor or reputation." [text]

71. Hoffman, p.568. [text]

72. Cynthia Esworthy, NEA Office of General Counsel, "From Monty Python to Leona Helmsley: A Guide to the Visual Artists Rights Act," 1.7, Microsoft Internet Explorer, March 23, 1997, p.2. [text]

73. Hoffman, p.540. [text]

74. Costonis, p.80. [text]

75. My thanks to Jean Reed Haynes for this distinction and the larger jurisprudential issues involved in the role of "activist" judges. [text]

76. A standard work delineating this view of history can be found in Karl Popper, Popper Selections (New York: Harper & Row, 1977). [text]

77. A good example of the interpretation of modern art as a series of revolutions is provided by Robert Hughes, The Shock of the New (New York:Alfred A Knopf, 1981). [text]

78. Any number of publications have documented and interpreted the end of the avant-garde.  See especially Rosalind E. Krauss, The Originality of the Avant-Garde and Other Modernist Myths (Cambridge, MA: MIT Press, 1985). [text]