Deja Vu

Richard Serra Redux

Tags:

art,

California,

civil liberties,

Los Angeles,

police,

Richard Serra

“Sculptures at LAPD’s New Home Likened to ‘Cow Splat,’” by Steve Lopez, Los Angeles Times, Oct. 21, 2009.

As luck would have it, the nearly completed LAPD headquarters is right outside my office window, so I've been bird-dogging the project from Day One to make sure taxpayers don't get ripped off. Which brings me to the $500,000 worth of public art that's just been installed on the west side of the building.

The cast-bronze sculptures consist of six large black blobs, with two tall, skinny structures on either side.

I wasn't sure what to make of them, so I went straight to the top: It looks like "some kind of cow splat," said Police Chief William J. Bratton, who sounded as if he were personally insulted by the installation.

Bratton said he first drove past the work and later walked back to see whether "it's as ugly up close as it is when you're driving by."

The answer was yes, and he sounded mad enough to have the artist arrested.

Bratton said he was not alone in his opinion; it was the talk of cops and staffers who already have moved into the new police administration building.

“Tilted Arc Destroyed,” by Richard Serra, 1989.

After it became clear to me that the General Services Administration was not willing to respect the implications of the concept of site-specificity—even though it had admitted that Tilted Arc was site-specific—I took my case to court. The case that my attorneys brought against the U.S. government in December 1986 addressed both the terms of my contract with the GSA and what I took to be abridgments of my constitutional rights. The suit attempted to prevent the government from removing or relocating Tilted Arc, and it sought to recover damages for breach of contract, trademark violations, copyright infringement, and violation of my First and Fifth Amendment rights. In a decision handed down on 31 August 1987, Judge Milton Pollack of the U.S. District Court dismissed all charges, disallowing the copyright issues and contract claim as being outside his jurisdiction, and striking down the constitutional questions for lack of merit.

An appeal was filed in the U.S. Court of Appeals on 15 December 1987, calling for a reversal of the decision regarding the constitutional issues. My attorneys contended that insufficient weight had been given to the fact that Tilted Arc was created for one site and one site only, and since to remove the work would destroy it, the proposed “relocation” would violate my right to free expression. They argued that “once a medium of expression—be it writing, film, theater, painting, or sculpture—is publicly installed or displayed, First Amendment rights attach which prohibit the government from removing the expression on the basis of its content.” Cited as a precedent was the case of Board of Education v. Pico (1982). In that case, the board of education had ordered removed from school library shelves nine books that were deemed “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” The Supreme Court found for the plaintiff on appeal, ruling that the books could not be removed simply because the board disliked their content. Applying this principle to the Tilted Arc situation, my attorneys noted that “dislike” was the only reason cited by Ink for removal of the sculpture. Following this logic, they concluded, “If the issue here were only removal of Tilted Arc, the authorities we have cited would preclude this result . . . [but this] result is put beyond question, we submit, when we recall that to remove Tilted Arc is to destroy it. It is no overstatement to say that we here deal with conduct akin to book-burning.”

U.S. District Attorney Rudolph Giuliani responded with a brief for the defendants, the GSA. The government argued against the applicability of both the First Amendment (free speech) and the Fifth Amendment (due process of law) in this case. In a remarkable (and unabashedly authoritarian) rebuttal, the government summarized its opinion: “As a threshold matter, Serra sold his ‘speech’ to the government. . . . As such, his ‘speech’ became Government property in 1981, when he received full payment for his work. . . . An owner’s ‘[p]roperty rights in a physical thing have been described as the rights to possess, use, and dispose of it.’” This is a rather incredible statement by the government. If nothing else, it affirms the government’s commitment to private property over the interests of art or free expression. It means that if the government owns the book, it can burn it; if the government has bought your speech, it can mutilate, modify, censor, or even destroy it. The right to property supersedes all other rights: the right to freedom of speech, the right to freedom of expression, the right to the protection of one’s creative works.

The decision of the Court of Appeals upheld the government’s position. Judge Jon O. Newman dismissed my appeal on 27 May 1988. He upheld the dicision of the lower court on both questions, free expression and due process. Newman held that “The First Amendment has only limited application in a case like the present one where the article of expression belongs to the Government rather than a private individual. . . . In this case, the speaker is the United States Government. ‘Tilted Arc’ is entirely owned by the Government and is displayed on Government property. Serra relinquished his own speech rights in the sculpture when he voluntarily sold it to the GSA.” If I had know that the government would claim Tilted Arc as its own speech and would consequently claim the right to alter or destroy it, I would never have accepted the deal. Tilted Arc was never intended to—nor did it—speak for the United States Government.

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