Breaking: Citing First Amendment concerns, the mayor’s office has rejected City Council President Clay Yarborough’s demand that the city pull funding for the Museum of Contemporary Art Jacksonville over an image he deemed pornographic.
Read the entire PDF here. The tl;dr version: Piss off, Clay.
Here is the text of Mayor Brown’s letter:
Dear President Yarborough:
I am in receipt of the enclosed email that you sent to my Chief of Staff on Tuesday, November 25, 2014.
As you know, we asked the Office of General Counsel (OGC) if the action you requested could result in legal risk for the City of Jacksonville. OGC has opined that the action you sought would likely violate First Amendment rights and could subject the City to injunctive action and financial sanctions. I believe you have received that opinion via electronic mail, but I have attached another copy here.
After thoughtful consideration of your request and the First Amendment issues involved, I will not seek to pull any of the funding that City Council appropriated to the Cultural Council of Greater Jacksonville in the current budget. This includes the Cultural Council’s subsequent award of a $233,029.00 grant to MOCA.
I am hopeful that we can put this issue behind us so that the City can continue working with the arts and cultural community to revitalize Downtown, enhance our quality of life, and make Jacksonville a vibrant destination.
Thank you again for sharing your concerns.
And here is that referenced letter from Jason Gabriel of the city’s Office of General Counsel:
Per the below request, our office has looked into this issue.
Based on relevant federal case law, the City cannot remove artwork from the Museum based on what it may deem offensive. While the City can choose to fund agencies or activities however it wishes (including those involving speech), it cannot discriminate or base its decision on viewpoints with which it disagrees.
Moreover, the case law is very clear that the City cannot rescind funding for a museum, refuse to renew its lease, or otherwise sanction it based on artwork it may deem offensive. To do so would violate the museum’s (and possibly the artist’s) free speech rights and injunctive relief against the City would be highly likely, as well as accompanying attorneys’ fees.
The question has also been presented whether the City has the ability to have the potentially offending piece of artwork moved or blocked from public view. The museum and artist have First Amendment rights to exhibit artwork in a leased public space, even if it may offend some members of the public. The City could respectfully request that the art piece be moved or obscured from general public view, but if the museum refuses, pertinent case law (as referenced above) would prevent the City from sanctioning the museum for its actions regarding protected activity. If the City attempts to change the museum’s facade due to concerns over what courts have called protected activity inside, this action again would be highly likely to result in a First Amendment challenge. In addition, it is worth noting that the lease provides for the museum lessee’s quiet enjoyment of the property, which is leased in “as is” condition with no improvements or alterations by the landlord. The landlord does not have access to the building for inspection and repairs.
Please let me know if you have any questions.