CORRECTION: After the recording of this podcast, the San Francisco School Board, in the face of community protest, reconsidered its decision to remove the George Washington murals from George Washington High School and will instead cover them.
Against the backdrop of global museums distancing themselves from the Sackler name, two highly controversial Whitney Biennials involving activist calls for the destruction and removal of an artwork and, more recently, calls for the resignation of a Board member who made a fortune building a network of defense equipment companies, and numerous other controversies in the United States about the identity of board members, museum donors and artists, Steve and Katie speak with Max Anderson about controversial board members, donors and works of art. Max is currently the President of the Souls Grown Deep Foundation and was previously the Director of the Whitney Museum of Art and the Dallas Museum, among other leading museum director roles.
Resources
About Max Anderson: http://www.maxwellanderson.com/about
Souls Grown Deep Foundation: http://www.soulsgrowndeep.org/
https://www.nytimes.com/2019/07/25/arts/whitney-warren-kanders-resigns.html
https://www.nytimes.com/2019/05/15/arts/design/met-museum-sackler-opioids.html
https://www.nytimes.com/2019/07/26/arts/design/george-washington-san-francisco-murals.html
https://www.nytimes.com/2019/08/21/arts/design/alice-walker-defends-george-washington-murals.html
https://www.nytimes.com/2017/09/13/arts/design/walker-art-center-scaffold.html
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, the 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.
Steve Schindler: Hi, Katie.
Katie Wilson-Milne: Hi, Steve.
Steve Schindler: So we’re here today with Max Anderson. Max has a storied background and resume, both as a director of museums and in the art world and in the cultural property world. Welcome to the podcast, Max.
Max Anderson: Thank you.
Steve Schindler: Tell us a little bit about your background and how you got into this work.
Max Anderson: Yeah, I’m an art historian. I did a doctorate in art history at Harvard and went to work at the Met as a curator in Greek and Roman art for about six years and then began life as a museum director at the ripe old age of 31 and did that for about 30 years.
Steve Schindler: Which museum did you start at?
Max Anderson: I started at the Carlos Museum at Emory University, which is a small encyclopedic museum on a college campus and then went to the Art Gallery of Ontario in Toronto and from there to the Whitney Museum. Then, after a hiatus, I went to the Indianapolis Museum of Art and ended career as director at the Dallas Museum of Art in 2015.
Steve Schindler: Wow, and along the way you’ve written a few books, I think.
Max Anderson: Well I’ve written a lot of articles and monographs and a couple of books and they’ve ranged in topics from effectively museum management to ascertaining quality in art to antiquities and a variety of think pieces about museology.
Katie Wilson-Milne: And what are you doing now?
Max Anderson: Now, I’m president of the Souls Grown Deep Foundation, which is a public charity that’s based in Atlanta, and we have an office in Paris and here, and we have a collection of African American art from the civil rights era and we’re placing these works steadily in major art museums, 16 so far, and many, many more to go with the intention being to get these artists who are not household names in the art market a presence in the canon of art history, and subsequently, we hope, have enough resources to make even more grants than we’re currently making to the communities in the south that gave rise to these artists.
Katie Wilson-Milne: Yeah, it’s an amazing organization.
Max Anderson: Thank you.
Katie Wilson-Milne: So Max, we’re thrilled to have you. Steve and I have been musing over doing some kind of episode about museum and art controversies, which seemed to have blossomed in the last few years, especially in the political climate we live in both in terms of scrutiny of Trustees and donors and their, you know, moral and ethical qualifications and also in terms of looking at art itself, you know, and what should be on display and what should not, and what reasons are given for that, and you’re really a great person to talk to because you’ve seen so many museums grapple with these issues and you’re still watching this happen, you know, at places that you used to work and are intimately familiar with. So that’s what we’re going to cover today and I think we should start with talking about, you know, art museums, generally, the backdrop of this conversation, you know, to some degree, or one example, is the recent controversy at the Whitney with the trustee, Warren Kanders who runs a company called Safariland, which makes and manufactures and sells to various governments military equipment, and there were allegations that the military equipment made by his company were found to have been used in certain parts of the world, including at the US border, and that was very disturbing to many activists. So to take a step back from that a museum is structured as all public charities or foundations are with governance, starting at a board level, you know, there’s a board of directors, and that board of directors is technically and legally in charge of the entire operation of the museum. Now in practice, they delegate that management authority to staff you know, primarily an executive director, and then on down the chain and, you know, become primarily a fundraising arm of the museum, but legally, they do bear the ultimate fiduciary responsibilities and management responsibilities of the museum. So with that sort of technical explanation, you know, who typically are these trustees Max, what do the boards of major museums really look like?
Max Anderson: Yeah, the transition in the 1980s and 90s, from boards that consisted primarily of art collectors, philanthropists, citizens in a locale, who were committed to the arts to a more corporate facing trustee was coincident with museums expanding and needing more resources and being led to think perhaps it was important to have people who may not have sprung from the art world or might not have that as their primary interest, but might be dabbling in it as collectors and or might be interested in supporting the mission. So that transition has led to a shift in what the conversations at board rooms are. In the olden days of the 80s and early 90s, the conversations were largely about program and collecting and the basis of institutions furtherance of research, knowledge, conservation education. I think the shift to have trusteeship be looked at differently has also meant that people have joined boards who are accustomed to a kind of chain of command within their corporate structure that has led them to be more involved with the management side than was conventional in the past and that leads to informal, not typically formal exchanges of influence between trustees and directors and occasionally curators that can be both productive and can be challenging. So it can put the director in an awkward position at times of having the advice of someone whose role is really to be advising, not so much on the specifics of management, but on strategy, policy, and oversight, and I think that’s where things have gotten more complicated in recent years.
Katie Wilson-Milne: In the past, the boards were more of a removed, you know, beneficial oversight committee, but they didn’t get involved in the details of how the museum’s run and you think now there really is much more actual influence, which is interesting because that’s one of the you know, the charges from progressive groups who are really looking at the identity of major trustees and major donors is that there is this fear that it influences the entire museum or as a response to that, is you know, “no, that’s not how it really works. The trustees are just up here, they don’t have any influence on the programming.” And it’s interesting to hear your perception that actually in reality it has become more influential.
Max Anderson: You know, every museum is different and every museum has its own history around how the board has evolved or been augmented or had seen departures of people who were previously generous. So I don’t want to say that every museum is the same. I think in New York, there’s a concentration of institutions in extreme competition for a finite pool of donors, collectors, artists, gallerists, and so it’s especially challenging in New York City. In other cities, there may be one trustee who is ascendant as a donor who is particularly generous, who has a outsized voice at the board table that everyone pays heed to, here it’s more of a tackle sport and I would suggest…
Steve Schindler: It’s a great way of putting it.
Max Anderson: And there’s not an infrequent change today in which one person might serve on more than one board of an art museum that certainly is novel that did not exist 10 years ago or more and that too has led to some disequilibrium.
Steve Schindler: Right? Does that seem to be a conflict of interest to you? It’s something that has come up in some things that I’ve done and discussions about it, do you think it’s problematic for a board member to serve on two similar museum boards?
Max Anderson: Well, conflict of interest is a legal phrase, which I don’t stand to be able to tell you much about that. I can say from the point of view of is it challenging? Is it complicating? Probably so, because as I say, there’s a finite pool of resources, people, and if someone is serving on two reasonably connected organizations, I don’t know how they sort that out.
Steve Schindler: Conflict of Interest is probably the wrong word, but ethically challenging, I guess, is maybe what it could be.
Max Anderson: Or just procedurally messy. I don’t know, even if it’s ethical, it’s just how do you think about these two institutions or more?
Katie Wilson-Milne: What is the role of the executive director at a large arts institution, vis-à-vis the board or the rest of the staff?
Max Anderson: I think it’s important to make sure we’re talking about the right title, because many museum directors are chief executive officers, and many are not.
Katie Wilson-Milne: Good point.
Max Anderson: Many have the title director, but they actually report to the board president, who is conventionally the principal executive officer according to the bylaws.
Katie Wilson-Milne: Right.
Max Anderson: So I think that distinction is important when you look at a particular Museum, because if a director is pounding the fist on the table as a CEO with credentialed opportunities that are afforded as a function of the bylaws, they have a bigger voice. If they’re not, it’s more tricky. So with that in mind, I think the role of the executive director or director or director and CEO, is to manage up in how the governing authority approaches the mission mandate and premises of the institution, making sure they’re in alignment with the broad direction that the board has given them license for, and managing down with their staff to ensure that they’re giving as much room to run to the creative talented people who represent the various verticals of curatorial, education, registration, conservation, and related arenas. So the job is very much one of standing in a balance between those two of governance and management and it’s become more complicated, of course, in recent years.
Katie Wilson-Milne: And the director, you know, to be clear, is someone hired by the board, and reports to the board and can be removed by the board, and the director other than in their role as an ex-officio board member, which they may be, doesn’t have any power over the board to tell the board what to do, or you know, who should be on the board or not other than informally, or with that one vote, they may have. Right?
Max Anderson: Yeah, I mean many directors, as I have, served on the nominating committees of boards that were the ones considering candidates for board service and in that respect, had a voice and often nominated people, brought them forward for consideration. At the Whitney, I proposed adding a seat for an artist on the Board of Trustees and the idea was met with some skepticism. The phrase being, “isn’t that a conflict of interest?” And the predicate I put in place was well not if we say they can’t have a show or have a work acquired for the duration of their service on the board. So I think directors can have that influence at times based on the circumstances of their situation, whether the board is open to that. But in recent years, I think it’s become more a function of a nominating committee looking at an individual’s attributes from a financial point of view, their capacity to give, their history of giving, as much as their credentialing in general.
Katie Wilson-Milne: For a board seat?
Max Anderson: Yes.
Steve Schindler: Are there any other characteristics that are looked at all?
Max Anderson: Sure, you know, again, it’s conditional in each institution. I mean, for some museums, they will look at well who has been shown to be active in the arts community in our city or our state, who is seen to be philanthropic in inclination, not necessarily in the arts, who has a perspective about the world that is consonant with the one our museum expresses and lastly, maybe, who would add value to the table’s conversation, which doesn’t necessarily have to do with someone’s wealth or privilege.
Katie Wilson-Milne: Right. Alright, so let’s talk about trustee controversies. Now, which of course, can be many, many things, but we’re going to focus on reputational controversies. So first do or should reputational concerns matter for a trustee at a museum? I mean, what is the backdrop of that even being an issue and do you think it either has been historically and should be now?
Max Anderson: Certainly, it has been relevant to institutions in the past who have had trustees who’ve gotten into hot water, potentially legally or reputationally and if that has a negative bounce on the institution or it’s distracting from the institution’s reputation, it’s not unconventional for that person to get a call from the board chair and say, you know, it’s been great, but maybe it’s time you think about stepping away and that type of informal exchange, I’m sure happens more than we know.
Katie Wilson-Milne: And that is true, whether or not and usually not the reputational harm or the incident has nothing to do with the museum itself, or nothing to do with the trustee’s role at the museum. It’s something in another part of their life, but it’s coming under scrutiny and it’s somehow being linked to the museum that they would have someone who does something like this on their board.
Max Anderson: I would say it’s the exception, I think most boards that have elected someone to service would be loath to ask someone to step aside, it would really only be in an egregious circumstance where there is continuous press or there is the threat of continued legal challenges that might in some way, drag the museum into a controversy.
Katie Wilson-Milne: So what do we want from our trustees? I mean, why would reputational concerns even matter if they don’t have to do with the museum? I mean, if we just want money from them or for them to pay attention in the quarterly board meetings? You know, what do we think these people are really doing that they’re outside jobs matter? I mean, my reaction is, in reality, we think they’re just giving a ton of money. So they got that money from somewhere, you know, I mean, it’s not hugely shocking to me that when you dig into the background of many of the trustees at the big museums in New York, at least, you’re going to be finding certain unsavory facts about how this money was made, you know, at some point?
Max Anderson: Absolutely. I think that’s effectively the way the capitalist system works is that wealth creation is rarely from someone who manufactures unicorns and rainbows. So that allows you if you continue to drill into someone’s past or their family’s past to find aspects of wealth creation that are untoward in the eyes of some and to me isn’t actually at the core of what museums should be thinking about.
Katie Wilson-Milne: When you say they shouldn’t be thinking about, they shouldn’t be overly focused on the background of their trustees?
Max Anderson: They should be concerned about who they elect to the board and how they perform as board members absolutely. As to how they generated their wealth, I think that is a sliding scale around what’s important to the institution and the degree to which that person may have agency in something that is considered inappropriate offensive, or again, in contravention of the mission of the institution, I take a position which is that’s actually missing the core point, which is how museums use their own resources, how they invest their money, is in fact more important than how someone else provided resources to that institution because if they say on the one hand, here’s a person who is in the arms merchant business or in Big Pharma or in oil and gas and fracking and therefore we can’t have them on the board that’s going to begin to obviously touch a fair number of people, because their own wealth is today invested, as the museum most likely is in stocks in their portfolio that are in those industries. So unless they take a you know, cleansing effort of their endowment philosophy and their endowment practices, it’s a little hypocritical to single out an individual whose wealth came that way when the institution itself is invested in that way.
Steve Schindler: But isn’t it also true that I mean, people serve on boards for a variety of different reasons, many of them are truly interested in the arts and in supporting them. But people also sit on boards, in part to burnish their own reputations and to some extent, a museum gives its imprimatur or blessing in a sense to somebody by allowing them to serve on a board. So a museum that’s also guarding its own reputation does have some legitimate interest in making sure that the people who serve on the board are not going to damage their own reputation, I assume.
Max Anderson: Absolutely, and I think the conversations in nominating committees around the country today are different from the ones before the Sackler controversy erupted and before the Kanders service, you know, became a topic. So those conversations in nominating committees are likely to be different ones about the attributes potential trustees.
Katie Wilson-Milne: And should we just explain what a nominating committee does for our listeners?
Max Anderson: Sure. So boards typically have in this country cycles of election for a seat on the board. They’re conventionally three year cycles, renewable for two to three terms. So a person could serve on the Board of an art museum for six to nine years, provided that they’re reelected, which is normally a formality after the first three years. But that service then allows them to have that stint on the board and during that period, they typically serve on various committees of the board, they have a role, which is beyond sitting at a board table itself. They may be on the Finance Committee, the Investment Committee, different committees involving collecting, education, who knows what else. And throughout their tenure as a trustee, they have a vote and a voice about the policy, the bylaws, the strategic planning, the general oversight of institution, and their voice is as loud as their ability to persuade others, their ability to write checks, or their ability to earn the confidence of both staff and board.
Katie Wilson-Milne: And the nominating committee is the committee of the board on which some members sit that proposes new board members to the full board for election.
Max Anderson: Correct. Although by the time it gets to the full board, it’s a slam dunk, it would be very unusual for a nominating committee slate to be present to the board and not be adopted. So it starts even before that, it starts with a private conversation between trustee X and the chair of the nominating committee saying, hey, how about X, they then have an offline conversation about that person and before it gets to the nominating committee, there’s already been some due diligence, presumabl,y that allows them to look at the reputation of that person and their track record.
Katie Wilson-Milne: But it’s fair to say that decision making exists within the board. I mean, there’s no outside inputs, it’s just whoever’s on the board, how they’re looking at it at the time, that’s how these issues are getting examined.
Max Anderson: Right, but there is, I would say an elastic relationship between the board and the rest of the world in that they’re going to talk to their friends, they’re going to talk to people in the community, that’s going to become common knowledge that someone if it’s a major institution is under consideration and so that’s how they achieve a degree of information about so what is this person’s vibe and hit and reputation in the city at large or in the community?
Katie Wilson-Milne: I point that out only because it’s hard to imagine or it’s challenging for board members who are themselves, you know, extremely wealthy and under the same type of scrutiny to apply a level of scrutiny they don’t want to be applied to themselves to someone else coming on the board, right and so you can see how there’s a cycle of people who are all feeling the same way about their wealth and their influence and what’s appropriate to look into and what’s not and they’re the people who are looking at the new potential board members and they may not be looking, for right or for wrong, at the kinds of, you know, non-museum related personal characteristics that someone from an activist group who’s gaining social influence is going to be looking at, you know, and we’re seeing the collision of that, I think those separate wavelengths and thinking about the role of a board member today,
Max Anderson: I think that was true, I don’t know if that’s necessarily true across the board anymore because remember that trustees come from various walks of life, in a lot of cities, they don’t have Wall Street, you know, chairman of one firm or another who’s available to serve, they have the bank president or the bank COO, local bank, they have people who aren’t necessarily have extraordinary wealth, and instead, the attributes they have are generosity. So I wouldn’t assume that even on some of the boards that perhaps you’re thinking of here in New York that everyone is a cut from the same cloth and in fact, nominating committees today are at pains to have members who are not Wall Street executives, but are people with a prevailing conscience about their community and an awareness. So I don’t think that the kind of whispered conversations of the past of hushing up someone’s deeds that might be awkward are as easily managed today as they were.
Steve Schindler: Are there any ethical guidelines that museums follow in terms of board nominations, I’m thinking of AAMD or other organizations?
Max Anderson: So AAMD, the Association of Art Museum Directors, represents over 220 of the leading Art Museums in the United States, Canada, and Mexico.
Steve Schindler: And you were once the president of that organization, as I recall?
Max Anderson: Yes, and I’m Emeritus now in my dotage, and we publish every decade a new version of professional practices, which is a public document that anyone can consultant in it are, in effect guidelines, very few of these are enforceable, very few of these are grounds for excommunication from the association if someone fails to observe them and in those are precious few words about this specific issue of trusteeship and the like. There is language about reputational and financial harm, which can broadly be extended to mean don’t do anything as a director that could bring reputational harm to your institution. So in extensio, you could say, don’t bring someone on the board who is going to be problematic, but it’s not explicit.
Katie Wilson-Milne: So let’s turn to your time at the Whitney, you had some controversies in your tenure there that you had to deal with, in terms of board members. Can you talk a little bit about those experiences and just how you thought about dealing with them at the time? Remind us, this was in the 2000? Give us the years that you were…
Max Anderson: I was there from 1998 to 2003. Well, controversies I don’t know that the Whitney has ever been completely free of controversies starting in 1932.
Katie Wilson-Milne: No. It’s nice to remember they didn’t start last year, so.
Max Anderson: We had a trustee elected in around the turn of the century, named Dennis Kozlowski and Dennis was at the time the chief executive officer of Tyco, one of the largest companies in the country, manufacturing everything from security systems to all sorts of other appliances and technology. And Dennis Kozlowski was found to have evaded sales tax on the purchase of works of art by having them shipped to a different state and then having them arrive in New York State and he served time. And it was, I think the first time a trustee had been jailed during active service, to be removed and jailed. So that led to some obviously fresh thinking on part of the nominating committee about exactly this issue of making sure people’s activities to the extent possible were above board. That was particularly dodgy because it was an art world-related issue. It wasn’t a corporate crime or a personal crime; it actually touched on his values and his compass as an ethical person dealing with art.
Katie Wilson-Milne: Did he step down?
Max Anderson: Yes, I was asked to ask him to step down, which he did.
Katie Wilson-Milne: And it seems like you have some other examples as well, that while it is the board’s ultimate responsibility and ability to remove a director, right? Most bylaws permit that and spell out how that happens. It almost never gets to that, right, because you just ask someone to resign, and they resigned rather than waiting for the vote of a full board to remove them?
Max Anderson: Sure. I mean that would potentially be very fractious and the conversations that we saw lately at the Whitney that some private board conversations became public in the New York Times and so these days, it’s much harder to assume that there’s a kind of Chatham House Rule around conversation within a boardroom. I think things are leakier than they’ve ever been.
Steve Schindler: Talking about the Whitney still, I mean and transitioning a little bit to the idea of naming rights and people who give money and having their name associated with a museum and we’ve seen there was an issue at the Whitney relating to Philip Morris, I think.
Max Anderson: Well, Philip Morris had very generously offered space in their headquarters on 42nd Street to the Whitney as a branch museum, which the Whitney had a few of as you’ll recall back in the day when Tom Armstrong was director and it became more difficult as time went on and as the cigarette industry became a pariah and the museum was still accepting funds from Philip Morris. It worked to change its corporate name to Altria. It sounded different, and the museum branch was renamed as a function. But it stayed a branch of the Whitney for some years and I think for a lot of the staff, it was an uncomfortable requirement to have that as its host and patron. But it didn’t, in the end; I think it ended in 2007 as a relationship, as a branch.
Katie Wilson-Milne: Did that end come about because of public pressure and the board taking action or negotiating with Philip Morris to end that sponsorship, I mean?
Max Anderson: I had left by then, so I don’t know the basis of how it ended.
Katie Wilson-Milne: Because this is, you know, we’ll talk more about donors and donations in a minute. Often the controversies with donors are harder for museums to just get out over the board, you know, to call another board member and say, look, this is just too much you should think about stepping down there contractual relationships that go back a long time that have to be either renegotiated or unwound and, you know, the legal issues with a branch of a museum that bears a certain name is much different from you know, just having sort of an informal back and forth about should you be here or should you not, so, it’s kind of an interesting crossover, the Philip Morris example. And you know, comparing that and your time at the Whitney to the recent scandal at the Whitney, which you know, I explained a little bit in the beginning that involved the trustee who was actually the co-chairman, I believe, of the board at the Whitney who gave, you know, millions and millions of dollars, whose wife was also heavily involved in the Whitney, who from what I understand, you know, supported young and emerging artists quite generously. I think whose own personal politics were not conservative, who owned this company that, you know, made products that ended up in these places or allegedly ended up in these places that are very hot but political controversies today. That blew up and became visible in a way that’s hard for me to imagine having happened, you know, 10 years ago. That how people found out about what his company was doing, how they tracked the individual objects that were manufactured by this company, you know, how many people heard about this got involved, it’s sort of mind boggling and then that they won, you know, that this, like, progressive activists who had no financial relationship to the museum at all or ability to influence anybody or anything with any money. This guy resigned because of their pressure. So is there something I mean, what do you think about that in the context of your experience both at the Whitney and in the museum world in general? And is there something new going on here in that ecosystem that kind of pressure is working now in a way that maybe we wouldn’t have seen it before?
Max Anderson: So, I don’t know if it’s something that’s an exception or whether it’s something that’s working now. In other words—
Katie Wilson-Milne: That’s a very good question, yes.
Max Anderson: It happened and the museum is moving ahead and presumably its nominating committee practices, as we discussed, will perhaps be different in what they look at in someone’s background. But obviously, social media has provided megaphones, countless megaphones, that today can enlarge a conversation beyond what in the past would have been unhappiness or disgruntlement or really a whistleblowing was the only way to get attention in the old days of someone making a case for something being incorrect in their eyes and today that’s gone and institutional critiques are routinely and hourly provided online about all sorts of museums, leading to all sorts of departures. And as at the Walker Art Center, where a controversy erupted around the tenure of Olga Viso who was director, who in my view was inappropriately exited and that type of megaphone can have instantaneous effect or within a relatively short time the effect on someone’s reputation or an institution’s reputation. So it’s hard to generalize other than to say that today the rules of engagement are different by virtue of social media.
Steve Schindler: Do you think that it made a difference in the Whitney that there was the staff letter that was sort of famously made public in favor of Mr. Kanders’s resignation or pushing for Mr. Kanders’s resignation, and then soon thereafter, a number of artists who had works in the current biennial exhibition made public their view that unless Mr. Kanders resigned, that they were going to withdraw their pieces from the show. And that list became longer and of course, it was amplified by social media. But I’m wondering whether the engagement of these other constituencies made a difference in your view.
Max Anderson: Oh, I’m certain it did, I think there’s a tipping point always in a decision like this that has to be reached and it’s a chorus that’s audible to such an extent it can’t be ignored any longer. And that concatenation of as you’re saying staff concern, artists, activism, the public outcry was sufficient to move Mr. Kanders to step away. But I think it’s a very unusual circumstance because museum staff is not typically given to voicing their opposition to something of this kind and I don’t think that most museums have staff who would do that, I think that’s again, part of the exceptional nature of the Whitney as a place that’s always been a bit of a touchstone for open dialogue, debate, and fearlessness in the face of controversy. David Ross, my predecessor, described the Whitney as a place for the contest of ideas and I think that’s right, I think it’s an institution which is committed to free expression in a way that no other New York museum is, except the New Museum probably.
Katie Wilson-Milne: Well, I think it’s a good and important point to not over generalize what we see happening in New York with the ecosystem in general. That being said, it does seem to me that there’s at least some trend, perhaps limited to some degree that, you know, museums are becoming much more sensitive to these issues, whether it’s because their staff is more politicized, their artists are more politicized, or their patrons are more politicized. But it’s not, you know, it’s not just the Whitney right, there are controversies in the UK over naming rights on certain wings of museums, there are controversies at the Guggenheim and at the Met and at the Walker in Minneapolis. So it does seem like it’s not just places like the Whitney that there is just more vocal criticism or comfort criticizing these institutions and you know, these institutions are made up largely of staff who are in the art world, who are progressive themselves, who are asking these kinds of questions, who feel aligned with, you know, many of the artists or activists, so you know, it strikes me without having done an exhaustive study that this is somewhat of a trend.
Max Anderson: Right, but the only thing that’s surprising is why it took so long, because universities have always had a feisty relationship among a vocal faculty that has led to some ousters of presidents, student protests, Alumni Associations electing trustees who were in effect firebrands and opposition with the university’s direction. So why did it take so long for museums to become a sounding board for public opinion, that’s really an interesting question.
Katie Wilson-Milne: Yeah it’s — the Whitney definitely felt to me like a university protest. I wouldn’t say that was like reasoned public opinion, it felt like the good and bad things about a university protest that, you know, maybe the reasoning wasn’t totally clear, or the mechanism wasn’t great. But you know, it was loud and it was, like, justice-driven and you know, it had a lot of those characteristics.
Steve Schindler: It is kind of interesting as — because as you say, the Whitney has always been sort of a progressive voice in many ways and it’s also attracted protest, you know, thinking even of the last biennial and the Dana Schutz controversy, that the Whitney is not a stranger to these types of protests. It’s kind of interesting that focus is on an institution like that to some extent.
Katie Wilson-Milne: The focus on the identity of board members and donors is a really specific part of that. Donors to major museums have many of the same reputational issues that trustees do, and really, trustees are major donors. But the difference or non-overlap is that a trustee has a fiduciary relationship and a specific legal role at the museum, a donor doesn’t. They’re a third party. They have a contractual arrangement, you know, I’m going to give you this money, or I’m going to alienate my property, and you’re going to take it and often it’s on terms. There’ll be an actual contractual document that says, I’ll give you this money and in exchange, you’ll do this, and this is the condition of the gift or you don’t get it and then the museum is legally bound as they would be to any third party they sign a contract with. And those conditions can be a number of things, right? If you’re donating art, it could be the art has to remain on display; it could be, you know, the art has to be on display, X number of times in X number of years, it has to be cared for in this certain way. Often, these conditions are just an invitation for the museum to spend tons and tons of money forever. But some of the more controversial conditions are that I’ll give you this money to build a new fountain or a new wing or rebuild this gallery and you’ll put my name on it forever and that’s the deal. Like you don’t get a cent unless my name is on it forever and the museum says yes and then 20 years later, that name becomes a big problem. But the museum has entered into this contractual relationship with this donor and it’s much harder then to sort of just backdoor out of that. You know, we want to talk about donors a little bit as distinct from trustees, you know, and the differences, obviously, between making an unrestricted cash gift, which you know, your name is not on anything, no one really knows who gave the money and, you know, the more problematic examples of giving, restricted gifts where you’re identified as the donor. So I don’t know if you can talk a little bit about issues you’ve seen in that arena in your career.
Max Anderson: Sure, I think for a lot of directors, any gift that has strings is looked at with extreme caution —
Katie Wilson-Milne: As it should be.
Max Anderson: As it should be, because I sought to avoid acquiring objects as donations or bequests that had strings because I knew that my successor’s successor would be cursing me when I was in my grave for why did he think that was an appropriate thing to sign. So I typically declined gifts that had any restrictions as a way of having a firewall against it. Increasingly, that’s getting harder. We’ve seen some museums turn over vast tracts of real estate for collections that are only on loan and that was unthinkable a long time ago. But now, given the competition among contemporary collectors for space in marquee museums, if they don’t build the museum themselves, they’re going to have more clout to make claims on an institution’s space and calendar, than was normative just a few years ago.
Katie Wilson-Milne: Why are museums more vulnerable to those demands today than they would have been before?
Max Anderson: I would say it’s a combination of the competitive environment around museums that are chasing a small number of influential collectors and collections. And a collector would be in their right to shop around and see where do I get the best deal for this act of generosity, even if it’s a relative generosity, because it’s got so many strings. So I think directors would be hard pressed to look a trustee in the face or a board table in the face, in their community if an entire important collection didn’t go to them and it went to another city or another institution in their city and they didn’t have an explanation other than they didn’t like the terms, that’s not gonna fly with a lot of trustees who themselves would be looking for the best deal in their collections placement.
Steve Schindler: So how do we deal with the kind of terms that Katie was alluding to earlier that there were economic terms which you said you tried to avoid and those have to do with, you know, just encumbering the museum’s resources for generations to come, but those can sometimes be overcome by money, right? If you say to a collector, okay, well, we’ll build this wing for your collection and take your collection and since you have a lot of money, you know, why don’t you provide some of it in perpetuity. But the naming rights are a little bit less easy to deal with, it seems, and you face the possibility, which we’re seeing today with the Sackler name, of a lot of controversy over reputational issues and having a museum associated with a particular family.
Katie Wilson-Milne: And I guess we should point out that the Sackler’s were major art philanthropists all over the world, all over New York, including many other cities, London, and you will notice when you go to many of New York’s museum, the Sackler name is all over the place and so they had these kind of restricted gifts, which resulted in their names being very prominently displayed on parts of major museums, so.
Max Anderson: Sure, and I would say that’s fairly conventional, it goes back to the founding collections of Henry Clay Frick and Andrew Carnegie and other turn of the century donors whose reputations were hardly unassailable in their lifetime, but in the art —
Katie Wilson-Milne: But there was no social media.
Max Anderson: There was no social media and the covenant between an institution and its donors was far more informal and far more presumptive that the support being afforded an institution was a curative proposition for almost anything. So if someone were to spend their time looking up, Henry Clay Frick’s acts as a corporate Baron, I don’t think that would be seen in the positive light. But people today look at the Frick Collection as one of the most beloved cultural resources in the world and they don’t say if only they could rename it. So I think remember that the Sackler family was not involved with opioids at the outset of wealth creation, it came in later and so there’s already one nuance in how to deal with that situation around earlier gifts.
Katie Wilson-Milne: Well and one wing of the family that has never been involved.
Max Anderson: Correct. So, once you start looking at the particulars of a situation, it becomes harder to have a kind of omnibus perspective about a family name. So I think the trend today is to look at limiting the duration of naming opportunities. So at the very least there’s an exit clause in a generation and you could say that a certain amount of money gets you this, but what we’re going to do in 20-30 years is come back to your family, say, “would you like to have your name remain? That’s going to be another capital gift, if you please.” The reasonableness of that is that money depreciates over time and a gift that sounded like a lot of money in 1970 doesn’t sound so great anymore in terms of cash value and typically was not sufficient to provide endowment support in addition to the capital costs of construction. That’s typically what these gifts are for and today, museums also try to get gifts of endowment, in addition to capital costs.
Katie Wilson-Milne: Well and it gives a museum or any institution, a moment to reevaluate the meaning of that name, you know, a lot can happen in 20 years, right? Everything can change in 20 years, a family could get into a new industry, something could be revealed, it gives, you know, institution much more freedom.
Max Anderson: Correct and I think it also pairs up with the premise of cycles of board membership. They have terms, they expire, they’re not renewable unless there’s a hiatus of a year, typically. If there’s a beloved trustee who’s generous, the rubric would be well step off the board for a year, we’ll see you on a bunch of committees, and then we’ll reelect you in the following year. That’s something that it’s done. But it is a mechanism where people step away and the same way with naming rights that could be a solution, albeit one that takes a bit of a while as a curative proposition.
Katie Wilson-Milne: You know, the question underlying all these donor controversies is why do we care where the money comes from? If it’s legally made, right? I mean, let’s say we don’t like how it was made. We’re disgusted by the products, but no one broke the law, as far as we can tell, why does it matter? I mean, it’s not an exchange that person’s not, you know, curating an exhibition, they’re giving money and then theoretically, the museum gets to use that money for good, right. So even if it was sort of unsavory, they get to transform it into something that’s a public good. Why do we care about these things?
Max Anderson: I don’t think it’s coincidental that in the age of Donald Trump, the free radicals of our being are now spinning out of control, that we all feel disempowered to a certain extent about the fate and fortune of this country. And for people in the arts, people who are in the creative industries broadly, I would say it’s a prevailing perspective that we’re on the wrong course and we’re not able to change it till November of the election coming up and I think that contributes to this powerlessness, contributes to a desire to get something right, and to get something on the table that is principled and that is a counter measure of what’s perceived as unjust and running roughshod over democratic tradition and free expression, and I would suspect that’s exacerbated the sense of obligation to protest and to demand change.
Katie Wilson-Milne: I think too, it’s a good question, why we care, but there is a difference between the museums accepting an anonymous gift or you know, having some kind of arm’s length relationship with someone where it’s really just, it’s an unequal exchange, right? It’s just a gift. But when the museum, you know, put someone’s name on a wing or has someone on their board, the museum is deciding to have an ongoing relationship with that person and it is putting a mark of approval on that person. So it does strike me as a much different consideration when the museum is having this sort of ongoing relationship with a family or a name that absolutely is the museum being proud of an affiliation and if that name has done something extremely harmful to society, the museum has to make a decision every day about whether they should still be promoting that family name. So I think the sort of whitewashing of past misdeeds that can be done by a museum is perhaps more legitimately brought up in the context of that kind of public advertising of someone versus just having, you know, accepted funds, and that those are different situations and should be talked about differently.
Steve Schindler: Sure, and I think to add to that, you know, museum is really a public institution. Many members of the public pass through their doors every day, and many members of the public have been affected by the opioid crisis, just to name one example and I think it’s fair to say to that community who patronizes your museum, that you maybe should not be forced to walk under the name of somebody closely associated or whose money is closely associated with that very issue.
Max Anderson: Well, there’s one, I guess, nuance you could argue, which is that the Whitney is sort of a public institution, but its collections are owned by the Board of Trustees, technically, as the case with the Metropolitan Museum. Unlike the Met, the Whitney gets negligible amounts of city funding and so from the vantage point of a place like the Guggenheim, the Museum of Modern Art, and the Whitney, which do not receive significant municipal funding, their version of being public is slightly different from the Met, the Natural History Museum, Lincoln Center, and the other members of the cultural institutions group.
Steve Schindler: Sure, but in the same way, they open their doors to the public, their very mission is really dependent on a large number of people coming through the doors, paying a considerable admissions fee and participating or taking part in the program with the museum so —
Katie Wilson-Milne: I think the problem though is that actually their future is, you know, almost entirely dependent on big donations, right? Because admissions fees don’t support a museum. We live in this philanthropic system where actually those museums cannot survive without playing this game of going to the richest people and getting the biggest donations and there may be a big disconnect there between the people that spend a lot of resources getting money from and you know, the kind of programming they’re doing and that’s the kind of political, I think, you know, head-butting that we’re seeing right now in terms of how museums really operate in what their public missions are.
Max Anderson: I think that’s very true and unlike the performing arts, where ticket sales are a very healthy percentage of earned revenue and therefore performing arts organizations are very sensitive to public interest, public appeal. Art Museums of scale, shouldn’t in theory have to be indexing their programmatic offerings to what the public wants, but instead to what the curators believe is important, and that I’m afraid is eroding somewhat in a commercial paradigm that’s become very prevalent among art museums in order to demonstrate that earned revenue is robust. When earned revenue remains, as you say, a fraction of what contributed revenue, endowment, grants, and support really are outside of the individual ticket buyer.
Katie Wilson-Milne: Yeah, and you know, the interesting thing I think in the Sackler naming is that it’s offensive to people walking in, but that wing and that art wouldn’t be there unless the Sackler’s had given the money. So what we’re really talking about is, can we shift it so that they gave all of this art or all of this money to the museum and their name is on the wall to just being they gave all of this art and this money to the museum, but they don’t get the name anymore. And you know, that seems like an okay solution. They don’t get to win twice, they don’t get to, you know, keep their reputation intact and get all their art back. Their art is for everyone else now, it gets to go in the public space. What should really be the subject of controversy is the sort of stamp of approval with their name being public. But it’s a reality that that art is there, and not just for Sackler’s, but for other wealthy donors who may have problematic backgrounds that those parts of museums exist because of those donations and they wouldn’t be there otherwise.
Max Anderson: I think that’s right and it leads to the need for case by case analysis rather than a broad brush saying everything has to change in the museum field today going forward and no one who’s associated with any of these industries can serve on a board or whatever other proscriptions, I think that would be fatal to institutions.
Katie Wilson-Milne: So, Max is the answer to some of this problem that everyone should give anonymously?
Max Anderson: Well, that’s what Andrew Mellon did when he gave the resources to start the National Gallery Of Art.
Katie Wilson-Milne: Yes, so let’s talk about that. So Andrew Mellon, obviously one of the wealthiest industrialists in American history basically endowed the National Gallery. He had it built?
Max Anderson: He had it built, he paid for the construction gave his collection on the condition he had, was that it not be named after him.
Steve Schindler: Yeah, no, it’s so interesting, because he certainly wasn’t shy about having other things named after him. So what was the story behind that?
Max Anderson: I think you could say that, by the time the National Gallery came into formation and before the Second World War, the premise was that it was appalling that we didn’t have such a thing. We had the Smithsonian Institution, but we didn’t have a gallery of art, which to an Anglophile, like Andrew Mellon, would be modeled on the National Gallery, London, which was a collection beginning in the Renaissance forward. So that’s why the National Gallery’s collections are of that period. But the interesting part about his philanthropic instinct was that the power of the institution was magnified by his stepping away from the naming rights and it made it what it is today which is our flagship institution. So I do think anonymous gifts are the best kind of gifts obviously. They lead to a celebration of the institution’s mission, rather than the individual providing it. But our tax code dating back to 1917 is one that said you give some money, we’re going to give you a charitable deduction and it led to the beginning of a thinking about philanthropic support that was no longer pure, it was reciprocal. And when Tocqueville wrote about America, he wrote about this extraordinary place of volunteers and generosity, oblivious to the fact that at 70 years later, we would become contractualized in respect to how generosity was acknowledged.
Katie Wilson-Milne: Right. But you can still get that huge tax deduction and give anonymously at least public facing, right?
Max Anderson: Certainly, and the hope might be that for people who are generous and inclined to support museums, but are also mildly aware that whatever their wealth creation story is, might in time lead to difficulty would say, “you know what, let’s just make an anonymous gift.” And I think that could cure some of what’s been in the fray of late.
Katie Wilson-Milne: I wonder if we’ll see a shift towards that because of the increased feeling that everyone is being scrutinized.
Max Anderson: It’s hard to say and again, every situation is unique. Every museum is different. Every community is different. But I wouldn’t be surprised to see anonymous giving uptick.
Steve Schindler: Yeah, although ego is still such a strong part of it, it seems to me, you know, the kind of person who wants their name on the theater or a ballet organization?
Katie Wilson-Milne: Well they still give if it’s not there.
Max Anderson: I think it comes down to currency. What is the currency that they have? If the currency is to be accepted among their peer group as a player who’s generous and who’s made a difference, they may not need their name on something if it’s known within their peer group.
Katie Wilson-Milne: Alright, so last question on this. We talked about some of the legal constraints on museums changing their relationships with certain donors after the fact, right. There are these contractual obligations in any gift agreement or donee agreement and a museum is likely not free to just remove someone’s name from the wall or change what’s being done with the assets that were given. But is there sort of a non-legal issue as well, in terms of a chilling effect on additional donors? I mean, you read about this in the news, and I can’t really tell if it’s a real thing or not. But you know, you watch someone else give a ton of money to build a wing and then, you know, they get totally thrown under the bus by the museum because of public pressure and scrutinizing their background and you fear that will happen to you if you were going to give and then you don’t?
Max Anderson: Bearing in mind that everybody makes their own choices, I think it’s not unreasonable to suspect that some gifts which might have been destined for an art museum might instead go to a hospital or to a charity involved in public works or in one form of humanitarian aid or another, where the glorification of their name isn’t the point in a hallowed hall of a prestigious art museum, but it’s the actual support of a cause that no one could possibly disparage or debate.
Katie Wilson-Milne: Yes. So a sort of related thematically, although I don’t think you know, logistically, it’s that related, have been the recent controversies, which also seem to be growing around artworks themselves and whether the artworks are offensive and whether that means that they should be destroyed or taken down or moved because they don’t fit the modern sensibility about what is appropriate for a public audience and especially an increasingly diverse audience to view. And I think this is interesting. The most recent counterpoint to this is the culture war in the 1990s, where you had pressure about the appropriateness of the content of art coming from the conservative right and certain government institutions like Giuliani, who tried to pressure the Brooklyn Museum to remove art that he found sacrilegious in the 90s and the NEA, you know, threatening to withhold funding from controversial artists like Robert Mapplethorpe and to today where you see that pressure, not really coming in the same space from the right or from government institutions, but from progressive activists who don’t control any kind of funding. So it’s an interesting shift, but the target of both of those movements is looking at the content of the art and questioning whether it should be where it is. And I think it’s been fascinating in the last few years, you know, to observe self-identify progressive groups, question the content of art, and I’ll use the word censorship, because I’m not sure there’s a better word. I don’t mean censorship, in the sense of the government actually making something illegal because that’s not what we’ve seen here recently. But you know, request for self-censorship either on the part of you know municipal institutions, if we’re talking about public monuments or museums, if we’re talking about works of art, or artists who can pull their own art and we’ve seen all three of those happen, requests for self-censorship from public pressure recently. You know, a few of these recent examples, which we’ve referenced in this conversation so far were the last Whitney Biennial controversy with Dana Schutz, who’s a white female, contemporary artist who had a painting in that exhibition called Open Casket, which was a distorted, cartoonish-like portrait of the photograph of Emmett Till in his casket that was selected, I think, in part because of the curators’ impression of its calling attention to the racial inequalities that we’re dealing with today. But it was viewed by a certain part of the public as being inappropriate for a white woman to be addressing the pain of non-white victims, although I’ll just point out, you know, having been to that biennial as many people have pointed out, much of the artwork dealt with that same subject matter, it just wasn’t by Dana Schutz. So, you know there were surprisingly large protests about that and conversations about whether that work should be there or not.
Steve Schindler: Well and even to be destroyed. I mean, I think that was part of the —
Katie Wilson-Milne: Calling for it to be destroyed, you know, that’s the kind of language I don’t think we’ve seen ever really on the left before and we sort of think about us in the book burning context of the government gone wrong before and then the example you mentioned of a Sam Durant sculpture, the Scaffold at the Walker Art Center, which was an outdoor installation representing somewhat abstractly, different Scaffolds used, I think in different executions or killings including one of Native American peoples and the Walker Art Center as with most institutions in our country sits on land that was formerly occupied by Native peoples and the Dakota people there, and many progressive activists found that very offensive even though Sam Durant was trying to call attention to that horror by, you know, this work and it had been in Venice, it had been around. But in this installation, people felt that he was not the appropriate person to be bringing that message and there were calls for its destruction to be removed and there are other examples. So you know, there’s an interesting shift and your career has spanned all of this right from this sort of initial culture wars of the 90s through today and —
Steve Schindler: And maybe focusing on how as a museum director, how should museums deal with these kinds of controversies? What would be —
Max Anderson: Yeah during the late 90s for the 2000 biennial as we were preparing it, the curators asked a work by Hans Haacke be commissioned and Hans Haacke is one of the most highly regarded artists who’s engaged with politics as his practice in art. And he made a work for the 2000 biennial that was in effect, calling out Rudy Giuliani’s rhetoric against the Brooklyn Museum and the defunding of the Brooklyn Museum which was temporarily put in effect, likening quotations of Giuliani to the quotations of autocrats and Nazis and fascists and the piece was basically made visible in the New York Times before the show opened and the city let us know of their displeasure. And it was a very fraught moment because there you had an artist of German ancestry who lived a life opposed to Naziism being accused by the Anti-Defamation League of being an anti-Semite in his work by appropriating fraktur, German gothic script, in the use of these quotations and trivializing the Holocaust. You had people on the left who saw Haacke as someone who deserved an opportunity for the first time to be in the biennial, you had trustees who were concerned, understandably, about the city pulling funds from the museum for a planned expansion and you had the other 99 artists in the biennial saying why is this guy getting all this attention when there are all the rest of us. So that was a moment of focus around the variety of tugs of war about free expression and controversy around a particular work of art, which was resolved by opening the show with Haacke in it and a concatenation of coverage and press faded as people began to see, “oh, there are other artists in the biennial too.” I think a director in those circumstances has to stay with the artists and if a choice has been made by a curator under the aegis of a project that was approved to remove that artist, remove that object after that decision has been made, opens the door to censorship in ways that are not consonant with the museum’s mission and I think the closest parallel today is again on university campuses, where there is a non-stop objection on the part of many students at many times for the use of language, for definitional terms and courses and Course Guides and the books that are assigned and readings that are assigned. Everything is up for debate on a college campus all the time, to the point where there’s a degree of paralysis on the part of the faculty of what’s safe to teach and how. So again, for museums this is coming a bit after it arrived at universities years ago and I do think that in the end, museums should be like universities, places of free expression, and free expression is rarely, as you know well as a law firm. Usually it’s not the case you want to defend, that’s the one that calls a question of the First Amendment.
Steve Schindler: Sure. But oftentimes, these cases don’t really rise to the level of the First Amendment certainly, if we’re talking about private museums and private colleges
Katie Wilson-Milne: Yeah, they don’t ever involve the First Amendment, maybe we should just say, you know, remind our audience that the First Amendment applies to government speech, so it would apply to museums that are owned by the government of which there are almost none other than the Smithsonian institutions in America, to state and public universities and schools. It would not apply to private non-profits, which are most of the cultural institutions or all of the cultural institutions in New York, those are not governed by the First Amendment, but the First Amendment certainly does provide a moral and ethical framework under which, you know, generally American Institutions operate in terms of how they think about free expression. There’s a recent example of this in a government context at George Washington High School in San Francisco, where they’ve been demands since the 60s and 70s to pull down 13 murals depicting the life of George Washington. These demands always came from progressive groups, actually, they started with demands from the Black Panthers and other community groups and they have been resisted until now, but they are coming down now or they’re being whitewashed, so they’re being destroyed, they’re not just coming down. And you know, the interesting thing about this, as Roberta Smith, who’s excellent art critic at the New York Times pointed out in her great article is, you know, the tragedy of this is that these murals were painted as part of the Works Progress Administration Art Projects in the 30s, during the Great Depression by a Russian immigrant and communist whose name is Victor Arnautoff and he deliberately and quite obviously, if you look at the pictures of these murals, painted a shockingly subversive picture of America, you know, expressly making obvious America’s you know, two great crimes as people say slavery and the extermination, basically of native peoples and, you know, it’s uncomfortable to look at that. But it’s an incredibly truthful and very American work of art and that it exposes these great flaws and calls in to question a lot of things about George Washington’s life. So these murals have been there forever. They are cultural landmarks and in the 60s and 70s, I forget which decade, when the Panthers were really agitating for their removal. There were counter murals that were commissioned. Dewey Crumpler, who is the African American artist who was hired to paint this counter mural, agreed to do so only on the condition that the original George Washington murals would not be removed and that was non-negotiable and he painted his mural as a response and so defined his work as including the original murals and that his work would not be complete if they came down. So there’s this whole amazing history about these murals and they’re coming down now, because some people have said they’re offensive and as Roberta Smith pointed out and I’m going to read a paragraph of her article, the idea of what’s offensive, you know or what should be somewhere or what’s not changes all the time. She writes, “In a democracy destroying a work of art is never a solution to any offense it may give. Once art has been made and released into the often choppy flow of life, it should stay there. It will live on anyway. To dictate its elimination is an implicitly autocratic move, similar and spirit, if not scale to the deliberate demolition of ancient art and artifacts by the Taliban and the Islamic State. The offended parties in and around the high school assume that their feelings about the murals are permanent and paramount. Those favoring destruction think that they know what the art is about and that they have the right to decide for everyone, now and in the future what will be accessible, what will be known. But reactions to art are in constant flux, and the best art should contain multitudes of interpretations.” So I think this is a really interesting example or something that is definitely coming down and I don’t know if you’ve had experience with controversies over public art, you know, as distinct from works that are in museums that the museum has much more control over?
Max Anderson: Yeah, when Fred Wilson was brought to Indianapolis when I was director there. I wasn’t involved in his selection, but I was very behind it very supportive of it, he was to make a monument in response to Indianapolis’ main circle downtown and his work was in effect taking images of African Americans in that monument and making them heroic in a separate monument, because they were in effect the subjugated figures at the base of the monument. And it was a lightning rod for the community. Fred and I spoke at a public forum about it, there were plenty of opportunities to make a case for it and it was eventually passed over, and unfortunately this great work of art was not realized and which was a different form of suppressing expression.
Katie Wilson-Milne: What was the objection to it?
Max Anderson: Well, there were many forms of objection, mostly that it was in poor taste, which is a unique way of saying that something is offensive. That same state had a bit of a crisis around free expression when I was director because shortly after I arrived, a bill was introduced in the Indiana State Legislature that it would have required everyone selling “pornographic” works would have to register with the Secretary of State of Indiana as a licensed pornographer and I called our general counsel and asked if they had been to our bookstore lately and as a purveyor of art books, we would probably fall under this new bill. So I as a new director, fairly fresh from my days at the Whitney and Mayor Giuliani, who had also by the way revoked a permit for banners for that very biennial in an act of I guess retaliation for the Hans Haacke work, then I was in the heart of the heartland in the red state of Indiana and my board unanimously agreed that we should sue to block this bill from becoming law and amazing, we lost. The ACLU or the American Booksellers Association or some other Amicus briefs were filed and it became law for one day and then a judge overturned it as unconstitutional, but —
Katie Wilson-Milne: As it sounds to me, yeah,
Max Anderson: As it sounds to you, but my point being here, I had been the director of the most progressive collecting institution in New York City and was under the watchful eye of a mayor who saw the city as his own domain. I moved to a red state where the belief in free expression was far greater in my experience than anywhere.
Katie Wilson-Milne: Right. It doesn’t always map exactly, right? It changes over time who is feeling offended or in control or yeah, that’s really interesting.
Max Anderson: When I moved to Canada to become director of the Art Gallery of Ontario, I succeeded Glen Lowry who had by then moved to the Museum of Modern Art as director, my brush with free expression in Canada was we had a Warhol exhibition called “The Warhol Look” and one of the works of art was a video with simulated fellatio and a member of the public called from downstairs saying that she was walking across the street to the 52 division to notify the constabulary that there was an obscene work in the museum and I talked to my government affairs person and she said, “you need to leave the building right now, because by law, there is no First Amendment in Canada.”
Steve Schindler: That’s right.
Max Anderson: I would have been obligated to take that work down if there was a formal complaint from the member of the public.
Katie Wilson-Milne: Fascinating.
Max Anderson: So truly an eye-opening experience for an American museum director in an expatriate situation.
Katie Wilson-Milne: Right, that is really interesting and I guess we should also add, if this stuff happened at Smithsonian, it would be different. Government owned museums, they do have first amendment concerns, they may not in all circumstances be free to make the curatorial decision that something is offensive and they want it to come down or you know, actually no, you are not welcome here anymore or this artist. But the vast majority of museums can make those decisions on their own.
Steve Schindler: And even with government museums, I mean most of the art that we’re talking about is not, you know, it’s not obscene. We’re not talking about —
Katie Wilson-Milne: I think the way people talked about Dana Schutz’s painting Open Casket, the way activists talked about Sam Durant’s sculpture the Scaffold was to call it obscene. So I think I agree with you, it’s not obscene in the traditional or legal sense, but people are using that language for a whole host of other things now.
Steve Schindler: Right. But I think we’re talking about art that is provocative, and that can be difficult and sometimes hurtful. So how we deal with it and I think I agree with you, Max, that it has to be sort of a case by case basis with a museum director with a strong moral compass who is able to make sound decisions and sometimes it’s going to offend some people whether it’s your board or the public or social media.
Max Anderson: I think it’s inevitable that it will offend some people.
Steve Schindler: Well, that’s what art is supposed to do, isn’t it?
Max Anderson: Well, it is supposed to open a dialogue, and dialogue often leads to hurt feelings.
Katie Wilson-Milne: Yeah, well thank you so much for being with us today.
Max Anderson: Thank you both.
Steve Schindler: It was pleasure. 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, a 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, 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.