Current Events of Deaccessioning and Cries of Censorship


Steve and Katie discuss the recent deaccessioning controversies at the Brooklyn Museum, Baltimore Museum of Art, and Everson Museum of Art in light of the ethical guidelines, new AAMD guidance, and the economic and social climate.  They also discuss the recent postponement of the Philip Guston retrospective at the National Gallery, Tate Modern, Museum of Fine Arts Houston, and Museum of Fine Arts Boston due to its depiction of white nationalism and the criticisms of that decision.  Please note there have been developments on all these topics since our recording, so please see the resources links for up to date information.

Resources:

AAMD:

https://aamd.org/for-the-media/press-release/aamd-board-of-trustees-approves-resolution-to-provide-additional

https://www.theartnewspaper.com/news/aamd-sends-a-warning-note-to-museum-directors-on-deaccessioning

Brooklyn Museum:

https://www.nytimes.com/2020/09/16/arts/design/brooklyn-museum-sale-christies-coronavirus.html

https://www.theartnewspaper.com/news/brooklyn-museum-steams-ahead-on-deaccessioning

https://www.artforum.com/news/brooklyn-museum-continues-deaccessioning-spree-84242

https://www.artmarketmonitor.com/2020/10/16/brooklyn-museum-to-sell-monet-miro-degas-and-more-at-sothebys-in-second-deaccesioning-round/

Everson Museum of Art:

https://www.latimes.com/entertainment-arts/story/2020-09-14/syracuse-museum-jackson-pollock-auction

https://www.wsj.com/articles/an-art-museum-sells-its-soul-11600808127

https://www.christies.com/features/Expert-view-Jackson-Pollock-Red-Composition-10893-7.aspx

https://www.syracuse.com/entertainment/2020/10/everson-museums-jackson-pollock-painting-sells-for-12-million-at-auction.html

https://www.theartnewspaper.com/news/to-mirror-and-support-community-everson-museum-board-chair-defends-deaccessioning-of-a-pollock

Baltimore Museum of Art:

https://www.nytimes.com/2020/10/02/arts/design/baltimore-museum-deaccessioning.html?smid=tw-nytimesarts&smtyp=cur

https://www.artnews.com/art-news/market/baltimore-museum-of-art-deaccessioning-works-sothebys-1234572422/

https://www.theartnewspaper.com/comment/bma-curators-letter-response-to-deaccessioning

https://www.artnews.com/art-news/news/baltimore-museum-of-art-deaccession-open-letter-1234574032/

https://www.theartnewspaper.com/news/former-trustees-and-donors-ask-state-to-block-sale-of-three-important-works-by-the-baltimore-museum-of-art

https://hyperallergic.com/595171/baltimore-museum-of-art-deaccessions-condemn/?utm_campaign=Daily&utm_content=20201019&utm_medium=email&utm_source=Hyperallergic%20Newsletter

https://www.latimes.com/_preview?_cms.db.previewId=00000175-37f8-da10-a57d-b7f976590000&_date=

Philip Guston:

https://www.artnews.com/art-news/news/philip-guston-postponement-tate-national-gallery-directors-1234572527/

https://docs.google.com/document/d/1LVXTB30hp2oNz1Vm4P8jpXgg4sIieWNbdaqWqffHcN4/edit

https://www.washingtonpost.com/entertainment/museums/national-gallery-postponement-guston-show-klan-images/2020/10/07/a35adb32-0831-11eb-a166-dc429b380d10_story.html

https://www.newyorker.com/magazine/2020/10/19/philip-guston-and-the-boundaries-of-art-culture

https://www.nytimes.com/2020/10/28/arts/design/philip-guston-retrospective-date.html

https://www.theartnewspaper.com/news/tate-suspends-senior-curator-over-guston-controversy

Additional:

https://www.latimes.com/entertainment-arts/story/2020-10-07/palm-springs-art-museum-deaccession-frankenthaler

https://www.artnews.com/feature/most-controversial-museum-deaccessioning-plans-1234575019/


Episode Transcription:

Steve Schindler: Hi, I’m Steve Schindler.

Katie Wilson-Milne: I’m Katie Wilson-Milne.

Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler, Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. Alright, hi, Steve.

Steve Schindler: Hi, Katie. How are you?

Katie Wilson-Milne: I’m alright. Still home officing, as I know you are too.

Steve Schindler: Yeah.

Katie Wilson-Milne: And home podcasting.

Steve Schindler: Well, we’re getting used to it, but I hope not too used to it.

Katie Wilson-Milne: Not too used to it, but better every time. So we thought today we would talk about a couple of current events that actually pick up on some of the topics we’ve discussed previously on the podcast. One is deaccessioning, which our listeners know we love to talk about, and deaccessioning meets financial crisis spurred by the COVID shutdown.

And we’ll then just tell our listeners briefly about a controversy relating to an art exhibit that’s been pulled for a number of years due to I’d say social-political concerns of the curators in terms of how it would be received and the outroar, outrage, excuse me, that that has caused in certain circles, and how it might relate to free speech concerns.

So we’ll start with the deaccessioning. So we have talked in previous episodes about the AAMD guidelines. The AAMD is the Association of Art Museum Directors. It has an outsized influence on how art museums run and has very strict requirements for a number of operational governance matters, but for our purposes deaccessioning. So it requires every museum to have a certain type of deaccessioning policy, restrict deaccessioning for only certain reasons, and most importantly for our purposes restrict the funds, the proceeds of deaccessioning, really only for purchasing new works of art.

And that’s been the AAMD’s position for a number of years. It has sanctioned museums including the Berkshire Museum and the Delaware Museum of Art and others, as we’ve talked about on the podcast, for selling art to fund operating expenses or other expenses that the museum might have. So they’ve taken a very black and white position in the past. If you’re selling a work of art as a museum, every dollar from that sale can only be used to purchase new art.

That is a much stricter standard than other ethical member organizations have taken, and much stricter than New York state, which I believe is the only state that has any deaccessioning restrictions as a legislative matter. Most of the other guidelines including the New York laws say that funds from deaccessioned works can be used for care of collections or direct care of collections.

What that means is vague, but there is a restriction that it has to somehow relate to the care of the art, that obviously opens up more space for those deaccessioned funds to be useful to a museum. But the AAMD has never had that policy. But in April of this year, the AAMD Board of Trustees approved a resolution to provide additional financial flexibility to art museums during the pandemic crisis.

And what they did was say they are not going to sanction any of their members until April of 2022 for doing a set of things that previously might have been sanctionable. And those things that they’re now not going to sanction for fall into two buckets. One is a set of restrictions involving endowment funds, trusts, and donations, and the other regards to the use of proceeds from deaccessioned art.

So the first three rules that, I would say loosened, but loosened isn’t the right word, that they’re just not going to sanction their members for doing, is that their members can consider the following sources for general operations. One, they can use income but not the principal from endowment funds or trusts held by a museum that are normally restricted. And endowment funds are almost always restricted by governing documents of a museum.

So they won’t sanction for use of income from endowment funds for general operations. They won’t sanction for the use of income or principal from donations by outside entities. So philanthropic giving, large gifts often come with restrictions on use, and AAMD will not sanction a museum if those restrictions are not observed because the donations are used for general operations.

Steve Schindler: It’s so interesting to look at this resolution, because it’s so lawyerly. And we’re lawyers so we can enjoy this. But they’re not expressly condoning this type of behavior, but they’re just saying that we’re not going to punish you for it. And someone spent a lot of time thinking up that kind of formulation because it’s so indirect and to my reading just a little bit odd.

I don’t know really why they’ve done it this way. I guess it’s probably there’s some politics behind it and maybe they’re hedging their bets a little bit. But it is just interesting to me that they just didn’t come out and say, “You are free to do this now.” And of course just as a footnote to that, and I think we’ve said this in other places, the AAMD is an organization that has the power to sanction its members, but it doesn’t have the power to make legal things that are not.

So you still have museums who may be restricted based on the documentation that was signed at the time of say donations or gifts. The fact that the AAMD has now said they’re not going to have to sanction you for behavior relating to those gifts doesn’t free the museums from whatever legal obligations flow from those arrangements.

Katie Wilson-Milne: Yeah, that’s right. My impression reading this announcement from the AAMD is that it was heavily negotiated and it was the least that they could give. And they’ve always been that way. They are a coercive organization in that they get amazing compliance because their tool is that they can sensor you or expel you. And if they censor you, that means that other member organizations have agreed by lieu of their membership, not to lend to you, not to do programming with you.

So it really cuts a museum off from a necessary community of other museums in a way that leads to compliance. You’re totally right here that the fact that the AAMD is not going to cut off your sources of borrowing and lending works for traveling exhibitions doesn’t help you at all if you breach a contract with a wealthy donor that required you to use funds in a certain way, right? It’s sort of the least of it.

But I think in terms of those two prongs of what the AAMD is not going to censor for, income from endowment funds and income or principal from donations that might otherwise be restricted, it’s a signal to the philanthropic community that they should also be loosening any restrictions that have been placed on funds, because of the times. And I think in that way it’s a PR — you know, it functions as a signal to that community, that other stakeholders also need to reevaluate the restrictions they’ve placed on funds.

So the other prong of what the AAMD has, let’s say, loosened relates to deaccessioning. And there are two parts to that, one is that the income, get ready for this it’s complicated so I may have to say it twice: the income, but not the principal, from funds that are generated by deaccessioned works of art can be used for operation, general operations. So when you sell the painting for $2 million, not the $2 million, that cannot be used for general operations. But if you put that $2 million into a fund, you invested it and it was going to generate income every year, you could use that income generated off the principal of 2 million for certain general operations expenses. That’s actually a pretty big difference from what AAMD has permitted before. Although, I question the relevance for most museums, which are never going to be putting together investment funds to kick off income for certain operations. They just don’t have the capacity because not every museum is MoMA or the Met, or SFMOMA or the MFA, most museums, that’s not going to apply to them. The other prong is that institutions may use proceeds from deaccessioned works, so the actual $2 million you might get from a sale of the work to support direct care of museum collections. Again, just means the AAMD is not going to sanction its members for doing these things.

It doesn’t mean — they say specifically they don’t condone them or encourage deaccessioning, but they’re not going to punish you for doing these things.

Steve Schindler: Let’s talk a little bit about what it means to use funds for direct care of a collection.

Katie Wilson-Milne: What does it mean?

Steve Schindler: Well, I think that it’s not defined anywhere, or at least it’s not defined by the AAMD, and it seems to be giving a fairly broad definition. Which basically means that you may pay employees, which sounds like operations, but if those employees are engaged in the care transportation, conservation, guarding of works of art, then that seems to be permitted.

And similarly, if you’re paying, I suppose, for some portion of electricity, which of course would normally seem like an operational expense, but if it’s being used to maintain a proper humidity level in a gallery, then that would seem to be funds to take care of the collection. So I think there are a lot of things that we would normally think of as operational expenses, which if you give it the right spin can be turned into direct care expenses.

Katie Wilson-Milne: Yeah, I agree. Isn’t everything direct care of collections if it’s an art museum? I mean the whole point is to care for the collection.

Steve Schindler: Most things in museums I think would in some way, shape, or form, maybe with a few exceptions, could come under direct care. And it would be interesting to see the bookkeeping or accounting in some of these museums just to see how they would allocate some of these operational expenses and call them direct care.

Katie Wilson-Milne: Right. So, to summarize, the AAMD is now allowing what basically everyone else has allowed for a long time, including New York state, which is that you can use funds from deaccessioning to buy new work, you can also use it for direct care of collections, whatever that might mean. We know that direct care is not operating expenses because those phrases are distinguished. We don’t know how they’re different from each other in most cases, but they are not the same. The general operating expenses are forbidden in terms of use of funds from deaccessioning, while direct care is often permitted. So, I think the real impact of these AAMD changes, I don’t know, I think it’s likely to affect only the very biggest museums, most important museums.

I think it will accelerate a conversation that’s been going on for a long time about whether it’s really reasonable to ask every art museum in America no matter what kind of financial trouble they’re in, what kind of donor base they have not to sell art, whether that art is on the wall or not, or has been in storage for decades, not to sell it to pay salaries, to engage the community in programming. Is that reasonable? And we’ve given reasons and heard arguments on this podcast that it may be isn’t reasonable in the case of small regional museums.

Steve Schindler: Right. The pandemic is an accelerant to some of these conditions that have existed and that we’ve been talking about. And it’s interesting to see now, several months after the AAMD promulgated its new guidelines, that some significant museums are starting to act on those.

Katie Wilson-Milne: Yeah. So the first that we’ll talk about is the Brooklyn Museum. The Brooklyn Museum is in Brooklyn. It is a major museum, but it is not of the financial strength of a museum like the MET or MoMA. It trouble balancing its budget, we know that. And it is maybe the first major museum to at least say it’s taking advantage of these loosened again, “loosened,” AAMD deaccessioning requirements. So Brooklyn Museum is putting 12 works of art up for auction at Christie’s within a month, including some very valuable old masters. And it’s doing that to raise funds for the care of its collection. I think the estimates are the sales will raise about $40 million. And the plan is to put that money into a fund that will then be invested and kick-off about $2 million a year in income to pay for care of collections.

Now, what’s interesting about this is that the plain language of the AAMD updated guidelines from April say that that type of income you can actually use for operating expenses. You can’t use the principal from the sale, you can’t use the proceeds, but you could put the proceeds into a fund and then use investment income from that fund for general operating expenses, at least until 2022.

I don’t know why Brooklyn is further restricting itself in terms of how it’s planning to use income from this fund. It may be that they don’t want to run into trouble in 2022 when the AAMD says you can no longer use income for anything but direct care of collections. And I think it may be more palatable than saying we’re selling this art to generate money to pay general expenses.

Steve Schindler: Right. And I think there are always going to be other constituencies that they’re looking at, whether it’s the donors themselves and how they are looking at the museum’s actions. So it’s not just the AAMD, but how are they perceived in a broader audience?

Katie Wilson-Milne: And also because, as you said, Steve, collection care, direct care has no real definition, I think museums can say that they’re using funds for that purpose. But actually, the funds are used for a huge variety of purposes, including salaries for registrars, curators, conservators, stuff like that. So cleaning, transportation, things that look like operations but can be classified as direct care. So the line is not clear.

But in the Brooklyn Museum case where they’re definitely using some of this income from the fund for salaries, cleaning, transportation, the money is not going to be used to cover utilities, exhibitions, or public programs. So that seems to be the line that Brooklyn is drawing in terms of maybe what’s direct care and what’s operations. So this is not without controversy, because no deaccessioning happens without someone getting upset.

So people have criticized this decision. These works are, I think, arguably not the most important works in the Brooklyn Museum’s collection and perhaps duplicative of other old masters they have, but they are major works. They’re works by Chranach the Elder, Botticini, there are very important works, but the museum’s made a decision that those works are not unique enough or they’re not important enough to really define the collection in a way that would outweigh them being sold for these purposes.

Steve Schindler: Because isn’t there still under AAMD policy, notwithstanding the new rules about how you use proceeds from deaccessioning, there are still restrictions and at least directives as to the actual decision about whether to deaccession a work or not. I think the decision to deaccession is still supposed to be done to improve the quality of the collection, the appropriateness, the diversity of the collection, and generally to support the long-term mission of the institution. And so that’s something that museums still have to take into account, I assume.

Katie Wilson-Milne: That’s right. You’re still restricted both under New York law, multiple member organization ethical guidelines including AAMD in terms of when and how you can deaccession. And it is required, and I believe every museum virtually follows this, to have a deaccessioning policy in writing that is followed by the institution. It sets forth the rules by which a work can be sold and the means with which it can be sold.

So that’s fixed. And as we said before, museums, whatever the AAMD says, museums still are bound by their own governance documents and contracts they have with third parties, like gifts instruments that they have to follow. So to the extent that there are rules laid out on those documents, this loosening of restrictions for sanctions purposes doesn’t really matter. But it is interesting, Brooklyn is the first museum to do a major sale, claiming that the AAMD statement from April is giving them permission to do it.

And they’re creating a fund that they hope to create some sustainability. We’ve talked before on the podcast about — it’s just fascinating that museums like the Met have a $3 billion endowment that they’ll never use. It’s a gigantic amount of money and it serves no purpose but to kick off income, but that is a way to create a long-term viable income stream for these institutions that wouldn’t otherwise be there. But it’s worth noting that that 40 million is just going to sit there.

Steve Schindler: All in the face of the economic times that we find ourselves in and the decisions by a number of museums to furlough or lay off employees, including Brooklyn.

Katie Wilson-Milne: I think it’s often been the curators and the staff of these museums that have been critical of deaccessioning, because the curators are the librarians. They care for this repository of work that is supposed to be there for the learning and exposure of the population in perpetuity. And so seeing work sold off can be very jarring. But that’s what Brooklyn is doing. I think we’ve made the point that deaccessioning is a totally normal activity for museums.

It’s just how those funds can be used that is subject to great scrutiny, debate, and change right now. And so where previously a museum could deaccession their work to buy a better quality work to round out a part of its collection that needed rounding out, that often left cash-poor museums in a very difficult position because they didn’t need more art. They needed money to repair the roof and to pay the receptionist and the janitor and pay for the utility bills. So it really wasn’t useful to many, many museums.

Steve Schindler: Yeah. In a sense, this has created almost an incentive or a reason to deaccession that didn’t exist before.

Katie Wilson-Milne: I think AAMD would disagree or decline to say they’ve participated in such encouragement, but I think institutions are using this as a catalyst, certainly thinking about these issues.

Steve Schindler: Clearly, clearly. And now should we talk about the Everson Museum of Art?

Katie Wilson-Milne: Yeah, yeah. Steve, you have a couple other examples.

Steve Schindler: Yeah, so it does seem like the flood gates are open and they’ve opened fairly recently, and we do want to talk about a couple of more examples. One is the Everson Museum of Art, which frankly is not a museum that I was familiar with, so it was interesting to learn about it. A short bit of background, it was founded as the Syracuse Museum of Fine Arts in 1897 by George Fisk Comfort, who also, as it happened helped establish the Metropolitan Museum of Art in New York city.

And in 1911, its first director declared that the museum would collect only American art. And it was apparently the first museum in the country to do so. Which led to the development and building of a permanent collection comprised largely of American paintings, sculpture, drawings, and graphics from colonial times to the present day. And in addition, they devoted a substantial amount of their resources to the collecting of ceramics, American ceramics.

So Everson has a permanent collection focused primarily on American modern contemporary art. It encompasses about 11,000 works. But it finds itself today in an economically depressed region. In 1968, Everson opened a glorious new headquarters, which was designed by I.M. Pei, and things were different back then. But today, the region is definitely struggling, and Syracuse is one of the poorest cities in New York state.

So against this backdrop, at least according to its own website, the museum claims have assumed a strong role in the reinvigoration of downtown Syracuse through artistic programs that are designed to maximize community involvement. So what just happened? On September 3rd, just ahead of Labor Day weekend, when news that you want to bury is good to be announced, the Board of Trustees of Everson announced that it had voted unanimously to deaccession the most important work in its collection, a painting by Jackson Pollock.

The reason that was given for deaccessioning this Jackson Pollock, entitled Red Composition from 1946, was “in order to refine, diversify and build its collection for the future.” The Pollock, which was significant, because it was his second experiment with his groundbreaking drip technique, was donated to the museum in 1991 by Dorothy and Marshall Reisman who are longstanding contributors and Trustees of the museum. And it’s remained the most significant work in the museum’s collection for almost 30 years

Katie Wilson-Milne: The most valuable, right? That’s my—

Steve Schindler: By a long, long shot. I think it is the reason why people might make a special trip to this particular museum, it would be to see Red Composition. So they made a decision to auction the work, and it’s interesting just coincidentally we’re recording this episode on the afternoon of October 6th, and tonight Christie’s will feature the work in it’s evening sale of 20th and 21st-century art. The auction estimate is $18 million, which makes it fairly likely that this painting, which has been available to be viewed by the public, will very likely disappear from the public realm.

Because it seems that an $18 million price tag for a museum in today’s world seems pretty unlikely and that it’s much more likely that it will be purchased by a private collector. And so this may be the last time that this very important work that’s been in this collection for 30 years will be seen.

Katie Wilson-Milne: And unlike some examples we’ve talked about over certain episodes on this podcast, this is not a work that was just in the basement of the museum for like 40 years that no one saw. This was a star work in a collection that was on display. So it really is a different circumstance, I think.

Steve Schindler: Of a museum that was founded to showcase American art. And so why are they doing this and what’s the rationale? And what we see in this case and also in the case of the Baltimore museum, which we’ll talk about in a little bit, the purpose of the sale is to establish a fund for acquiring works created by artists of color women, artists, and under represented contemporary and mid-career artists. In addition to that, funds are going to be used for the direct care of the remaining collection.

But I think that the principal reason being given for the sale of this work is really in a sense to rebalance the collection. In its words, that “it will use the funds in some measure to focus on adding works by underrepresented artists.” And this is an important purpose. It’s something that is very much needed in a lot of museums. I think the criticism has centered around, “why this work?” This is Everson’s really sole destination piece.

It is the most significant piece in its collection. And as a museum that was founded and dedicated to the goal of collecting American art, it’s I think difficult for some to square the selling of that jewel even for the noble goal of trying to broaden its collection. And I think the critics of that decision would say both things are important. Don’t sell Red Composition, this important work that was committed to you for the public trust, in order to meet what’s also a very important goal as well. There are other ways to raise that money and to diversify your collection.

Katie Wilson-Milne: But this isn’t really an AAMD issue, right? This doesn’t relate to the recent statement by AAMD from April, right? You were always allowed to sell work to buy other work. And people are free to disagree, but this isn’t the situation where the museum needs cash to fund operations and salaries. And that’s why they’re selling it, right? This is a—where does it connect?

Steve Schindler: I think it connects a little bit because they’ve also said that funds from the sale are going to be used for direct care and keeping with the guidelines established by the AAMD. So it is I think—

Katie Wilson-Milne: It’s both.

Steve Schindler: It’s both.

Katie Wilson-Milne: Perhaps it’s just getting this much attention because they’re selling the Pollock. Alright. So back to a bigger museum, Steve, what’s going on in Baltimore?

Steve Schindler: So, just a few days ago, the Baltimore Museum of Art announced that it is deaccessioning three works, one by Andy Warhol, Clyfford Still, and Brice Martin, to generate $65 million to finance the care of its collection, which includes salary increases for underpaid staff members and diversity and equity initiatives and acquisitions. The museum has said that all of the works will be sold through Sotheby’s this fall, the Warhol privately, and the Still and Martin at auction.

This particular museum previously stirred up some controversy in 2018 when it sold seven paintings by prominent artists to help fund purchases of works by underrepresented artists of color. This set of sales, they’re hoping to realize $65 million. And the way this is going to be broken down according to the museum is $10 million of the proceeds will go to its acquisition fund, allowing it to, in their words, “rebalance its collection by seeking out more works by women and people of color,” their quote, “particularly as they interweave with the history and present of Baltimore,” which is a majority-black city.

And again, seems like a worthy endeavor. And then the $54.5 million would be used to create something called an endowment for the future for the direct care of the collection. The museum projects at this endowment would generate approximately $2.5 million in annual income that will be used to offset costs for research, conservation, documentation, and exhibition of artworks, as well as the salaries of 46 staff members, including curators, registrars, conservators, preparers, art handlers, administrative staff, and fellows.

Which gives you an idea of how expansive the definition of direct care can be. Now, interestingly, they are only intending to use the income from this endowment fund for direct care. And I think you noted with respect to the Brooklyn Museum, that’s a more conservative approach than even the AAMD is allowing under the AAMD guidelines. They could, in fact, use the principal here for direct care, but they’re not going to do that according to their press release.

And then finally half a million dollars is going to go toward new initiatives to promote internal and external diversity, equity, accessibility, and inclusion initiatives. Now, this decision, which was just announced, has been met with opposition. Opposition from curators particularly, one of whom wrote an op-ed in the Baltimore Sun, saying that the museum’s primary function is to provide experiences. And in this particular case and this particular curator believes that the museum’s remaining holdings of, for example, Martin’s work, all of them on paper will never match the experience of a large size painting that it plans on selling, which is kind of an interesting approach. The director of AAMD has looked at this proposed deaccessioning plan and made public an e-mail several days ago indicating that the museum’s plans are in alignment with what the museum association authorized in its April resolutions.

Katie Wilson-Milne: Which is fascinating, because when you read that list of what they plan to do with the income from that fund, it sounds like operations to me, right? And then funding a diversity and inclusion initiative also seems unrelated to care of collection. So this is clearly not a set in stone sort of area.

Steve Schindler: Yeah. And it’s interesting, so the director of the AAMD is Christine Anagnos, and in her email in which she indicated that the actions of the museums are consistent with the AAMD’s plans, she goes a little bit further and says that there’s a wider set of issues facing museums today, and the conversation around deaccessioning may need to be seen in the context of today’s two biggest challenges. One is the pandemic, which is really what the AAMD resolutions that we’ve been talking about address, but the other is the ongoing work to address a range of diversity, DEAI [Diversity, Equity, Accessibility, and Inclusion] needs, which are important and require resources. And she goes on to say, “given that, whether the focus is in Brooklyn or Baltimore, what these museums are doing makes some sense.” And it just seems to me that this statement by the director of the AAMD goes a little further than the resolutions that we’ve been discussing.

Katie Wilson-Milne: Very much so. And it’s interesting that to compare this moment to the cases in the past that at least some people thought were very compelling circumstances for deaccessioning and using funds for what either are maligned as operating expenses or what could be called direct care. And that was not enough for the AAMD. And those are circumstances in numerous small regional museums, like the Berkshires and Delaware and the National Academy Museum, these are museums that — they just don’t have cash. They don’t have a rich donor base and they don’t have a population that particularly cares about a library of art in the basement, right? They want to be engaged. They want a place for their children to go. They want a space that’s open and welcoming and stimulating. And balancing that in the past has seemed that AAMD has taken a more absolutist approach and not engaged in the cost-benefit analysis in those situations and now is willing to. So that’s a really significant development.

Comparing Baltimore to Brooklyn, the Brooklyn Museum has had well known financial problems for some time, but the Baltimore Museum has a balanced budget. They haven’t had the same kind of public financial pressure that Brooklyn has had, and they’re undertaking the same scale of sales and also creating a fund.

So it may be a trend among these, I would call it almost top tier museums, right below the MET, MoMA level of museum, but have large collections that are not necessarily on view to start creating these funds. And I guess the other interesting thing is like we’ve said, why are they hewing so closely to this language direct care when they don’t necessarily need to? A lot of what is being funded looks like operations.

Even if AAMD is going to allow it for two years, or not sanction for it for two years, it may look bad to donors. I wonder if there’s some concern that using more money in this way for what they call operations is going to be off-putting to wealthy donors. And it may also conflict with internal governance documents at those organizations, which may be closer to the strict rules that AAMD previously had.

Okay so, listeners, we’re going to leave you with an interesting recent controversy as we often do, and with very little legal analysis or answers, because we don’t have it. But in some ways, it relates to a podcast we did with Amy Adler about censorship and the first amendment, which was largely about what the law does not cover. When we’re talking about censorship, especially today, it often has nothing to do with the law.

It’s a policy matter or a social controversy, what people should or shouldn’t do, but not — it doesn’t relate to censorship in terms of government censorship, which is the only area of censorship restricted by the law under first amendment doctrine. So the artist Philip Guston, who’s now deceased, was a Jewish immigrant from the Ukraine, moved to the US —

Steve Schindler: Phillip Goldstein, I think was his name.

Katie Wilson-Milne: Yes. Previously Goldstein, changed to Guston, a poor Jewish immigrant family from the Ukraine, and witnessed growing up the kind of prejudice and hatred that we are consumed with still right now, and are ever more present in how museums are thinking about their work and artists are thinking about their work. So he was dealing with these issues at a time very relevant for him, but way before the current moment.

And in some of his paintings, he dealt with white supremacy in depicting Ku Klux Klan members. And they’re quite direct and graphic images. So, four important museums had planned a retrospective of Philip Guston’s work. Those museums are the Museum of Fine Arts in Boston, the Museum of Fine Arts in Houston, the National Gallery of Art in Washington, and the Tate Modern in London. And they decided to postpone this exhibition for, I believe, four years with the explanation that the retrospective could be disturbing and create a kind of tension because of its graphic imagery of the KKK. And that they didn’t have time to properly contextualize it so that it wouldn’t, I’m paraphrasing here, be offensive to the audience. One of the curators is quoted as saying, “In today’s America because Guston appropriated images of black trauma, the show needs to be about more than Guston. We weren’t prepared for that. An exhibition with such strong commentary on race cannot be done by all-white curators.”

And so these all-white curators at these four institutions decided that this art created by a white Jewish man would be either triggering or difficult for the audience to take in this political moment and that they were not the people who could, I guess, soften the blow or contextualize it appropriately, and so they put it off. What’s interesting is that there’s no explanation for what’s going to happen between now and 2024. Are all the curators going to change identities and there’s going to be a whole new team coming on, or what’s the plan for contextualizing it? And until very recently, an art museum shows the art, it allows the audience some power of interpretation and messaging, which is of course supplemented by the curation. But the idea of needing to provide a complete historical context is interesting.

Steve Schindler: Yeah, I know. This is a large retrospective of a major American artist that was clearly in the works for a number of years. It doesn’t just come together in 2020. And so the fact that they hadn’t really thought about this seems hard to really grasp.

Katie Wilson-Milne: And just so revealing that when this was planned a few years ago, no one thought this was a problem because of how important an artist Guston is. And now today the only thing that’s changed is the political social climate. And then that’s completely re-informed the institutional perspective on this retrospective. So it’s interesting. Now, this recalls for me the controversy around a single painting, not a retrospective, by Dana Schutz in the Whitney Biennial a few years ago, which in Dana Schutz’s words “was painted with the compassion of a mother.”

She painted an image of Emmett Till in his casket that was quite graphic and disturbing, meant to be. And there was a large protest, a loud immediate reaction to the work being included in Whitney, because of her identity as a white artist and appropriating black pain. So I think somewhat understandably, the curators of the Guston show were aware of that, and I’m sure that that protest and outrage and demand for that work’s removal and destruction in the Whitney case informed some of their concerns about the Guston retrospective.

Interestingly, a slew of famous artists, including many prominent artists of color, wrote an open letter to the four institutions hosting the Guston retrospective denouncing their decision to postpone it and basically saying this is anathema to what art is. That you have to trust your audience to be able to understand what Guston was trying to do, which was expose white supremacy. And by covering up his effort to do that, you may actually be complicit in not dealing with white supremacy, including at your own institutions.

Steve Schindler: Which is obviously a hugely important topic at this moment in time. It’s a bizarre decision, I think, for the museums to have made.

Katie Wilson-Milne: I guess do wonder Steve, it would surprise me if this exhibition went ahead and featured Guston’s work. And I actually don’t know to what extent this work was featured, but if it featured this work by Guston on white supremacy and direct images of the Ku Klux Klan curated by an all-white staff, that that wouldn’t have come to the attention of certain people who would have had a problem with that.

And one response to that which I thought this open artists letter had which was powerful, was that, yeah, there’s messy stuff going on right now that needs to be dealt with, and you’ve got to do some work to figure out how to contextualize this and put the show on correctly. We’re not saying that any way you do it is okay, but you don’t get to just abscond because you don’t want to take the time to figure it out.

Steve Schindler: Right. Well, I think they write the postponement is an admission of the museum’s “long-standing failure to have educated, integrated, and prepared themselves to meet the challenge of the renewed pressure for racial justice that has developed over the past five years.” They are criticizing the museum’s failure to deal with its own internal issues and using that somehow, or ignoring that, and headlining the, not going forward with an exhibit by an artist whose career was very much marked with his opposition to white supremacy and other kinds of bigotry, fascism.

And I think to some extent that does make it a little bit different, but this is an artist that has a long track record of taking issue and exposing some of these social issues.

Katie Wilson-Milne: Yeah, I think that’s right. And one thing that was interesting to me viewing this from an American perspective, as I think a lot of these conversations are, is that the Tate London, obviously is in London, it’s one of the four hosting institutions, not American. And they came out with a statement saying, wait a second, no, we don’t ever censor anything. We wouldn’t have done this. This is a purely American issue. And obviously, we can’t have the show if these other institutions don’t have the show. We were just dragged along in this decision, not one we would have made because we don’t do things like this. And I thought that was interesting throwing it back to the American institutions, which I’m sure is believable to me that they did raise these concerns that are in some ways particularly American.

Steve Schindler: So is this a first amendment issue, Katie?

Katie Wilson-Milne: It’s not, you know. We think of the first amendment when we say free speech, but really none of this has to do with free speech. It certainly could have to do with censorship. Censorship, any actor can censor. But I think the one interesting part about this is whether the National Gallery is a government institution and in that light could be seen as a government actor censoring the content of this exhibition, because of the viewpoint of the exhibition.

And certainly, that is what’s happening at the National Gallery. They’re not putting on the show, because the viewpoint of the show is causing some problems. But I think even in that case, the first amendment gives great, great leeway for curatorial decisions and funding decisions. And this isn’t a case in which a government actor opened up a truly public forum and said anyone can leave a comment here, and then goes through the comments and deletes. Or anyone can come and speak at this event, but then tells people who believe only a certain thing that they actually aren’t welcome. So it doesn’t really meet that test.

Steve Schindler: And it may fall into the category of that this is the government’s speech, which as professor Adler so eloquently told us when she was on the podcast previously, that there is no prohibition against the government censoring or in any way cabining its own speech, which this may very well be.

Katie Wilson-Milne: Right. I don’t know that Guston’s speech—that’s an interesting question. It’s Guston’s art, so it’s his speech, but also the curation of it and its placement is the museum’s sort of “speech or expression.” So it’s an interesting mix. But yes, the government speech doctrine, eloquently summarized as the government can say whatever it wants, yeah, it does allow the government to say whatever it wants. But it’s an interesting topic, and I think it’s not completely settled under the law how government museums, because there are so few in the United States, interact with the first amendment. And those are interesting questions that maybe we’ll explore more in the future.

Steve Schindler: Well, that will be something to look forward to. And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts, and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos for making us sound so good.

Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.

Steve Schindler: And I’m Steve Schindler, bringing you the Art Law podcast, the podcast exploring the places where art intersects with and interferes with the law.

Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney/client relationship. You should not rely on the information as legal advice for any purpose and should always seek the legal advice of competent counsel in the relevant jurisdiction.


Music by Chris Thompson.  Produced by Jackie Santos.