OFFICE OF MAYOR ALVIN BROWN SST JAMES BUILDING PH: (904) 630.1776 117 WEST DUVAL STREET, SUITE 400 FAX: (004) 630.2391 JACKSONVILLE, FLORIDA 32202 wren) December 2, 2014 ‘The Honorable Clay Yarborough City Council President 117 West Duval Street Jacksonville, FL 32202 Re: Museum of Contemporary Art (MOCA) Dear President Yarborough: | am in receipt of the enclosed email that you sent to my Chief of Staff on Tuesday, November 25, 2014. ‘As you know, we asked the Office of General Counsel (OGC) if the action you requested could result in legal risk for the City of Jacksonville. OGC has opined that the action you sought would likely violate First Amendment rights and could subject the City to injunctive action and financial sanctions. | believe you have received that opinion via electronic ‘mail, but | have attached another copy here. After thoughtful consideration of your request and the First Amendment issues involved, | will not seek to pull any of the funding that City Council appropriated to the Cultural Council of Greater Jacksonville in the current budget. This includes the Cultural Council's subsequent award of a $233,029.00 grant to MOCA. {1am hopeful that we can put this issue behind us so that the City can continue working with the arts and cultural community to revitalize Downtown, enhance our quality of life, and make Jacksonville a vibrant destination. Thank you again for sharing your concerns. Sincerely, ‘Alvin BrownHand, Chris Yarborough, Clay Tuesday, November 25, 2014 3:41 PM Hand, Chris Subject: Pornographic display at MOCA Importance: High Chris, Upon entering the Laura Street doors today at the Museum of Contemporary Art (MOCA), I saw a large picture on display straight ahead hanging on the lower tight corner of the gallery wall of a woman with bare breasts exposed and laying in a questionable position. Given that any member of the public, including children of all ages can enter, and are in fact encouraged to do so, as City Council President I take great offense on behalf of the people of Jacksonville that the City would accept this. The City of Jacksonville is currently budgeted to give MOCA $233,029 in taxpayer funds for the current fiscal year. Unless Mayor Brown supports this inappropriate, pornographic display, and accepts that anyone, including children can enter and see it, I insist that you immediately cause to be pulled all funding designated for MOCA for the current fiscal year or otherwise explain how this will be addressed within 24 hours. Took forward to your response. Clay Yarborough President Jacksonville City CouncilHand, Chris From: Gabriel, Jason Sent: Tuesday, December 02, 2014 10:52 AM Te Hand, Chris; Yarborough, Clay ce: Feiser, Craig Subject: RE: Pornographic display at MOCA Gentlemen — Per the below request, our office has looked into this issue. Based on relevant federal case law, the City cannot remove artwork from the Museum based on what it may deem offensive. While the City can choose to fund agencies or activities however it wishes (including those involving speech), it cannot discriminate or base its decisions on viewpoints with which it disagrees. Moreover, the case law is very clear that the City cannot rescind funding for a museum, refuse to renew its lease, or otherwise sanction it based on artwork it may deem offensive. To do so would violate the museum's (and possibly the artist's) free speech rights and injunctive relief against the City would be highly likely, as well as accompanying attorneys’ fees. See Cuban Museum of Arts and Culture, Inc. . City of Miami, 766 F. Supp. 1121 (S.D. Fla. 1991); The Brooklyn Institute of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999). ‘The question has also been presented whether the City has the ability to have the potentially offending piece of artwork moved or blocked from public view. The museum and artist have First Amendment rights to exhibit artwork in a leased public space, even if it may offend some members of the public. The City could respectfully request that the art piece be moved or obscured from general public view, but if the museum refuses, pertinent case law (as referenced above) would prevent the City from sanctioning the museum for its actions regarding protected activity. f the City attempts to change the museum’s facade due to concerns over what courts have called protected activity inside, this action would again be highly likely to result in a First Amendment challenge. In addition, it is worth noting that the lease provides for the museum lessee’s quiet enjoyment of the property, which is leased in “as is” condition with no improvements or alterations by the landlord. The landlord does have access to the building for inspection and repairs. Please let me know if you have any further questions Respectfully, -Jason G. From: Hand, Chris Sent: Tuesday, November 25, 2014 8:43 PM To: Yarborough, Clay Ce: Gabriel, Jason ‘Subject: RE: Pornographic display at MOCA Mr. President: Thank you for your email. | was not aware of the display you referenced below until | received your email, and | feel certain that the Mayor is not aware of it.‘As you know, the Cultural Council of Greater Jacksonville actually makes these awards and MOCA was one of 22 enti to receive funding from the Cultural Service Grant program. See http://iacksonville.com/news/2014-10- 17/story/cultural-council-awards-24-million-grants. |1am copying Jason Gabriel as these kinds of content questions often invoke First Amendment legal issues. It will be critical to have guidance from the Office of General Counsel, Additionally, | have called MOCA to alert them of your concern and will circle back with them tomorrow morning. Have a good evening. Chris Hand Chief of Staff Office of Mayor Alvin Brown 117 West Duval Street, Suite 400 Jacksonville, FL 32202 Direct: (904) 630-1253 Mayor's Office (804) 630-1776 General Information: (804) 630-2489 (630-CITY) Email: chand@coj.net Connect with Mayor Brown and the City of Jacksonville! i | ie eee eres ice For general information, contact 630-CITY (2489). View our calendar, sign up for newsletters or learn about volunteer opportunities. “ Please note that under Florida's very broad public records law, email communications to and from city officials are subject to public disclosure. *** From: Yarborough, Clay Sent: Tuesday, November 25, 2014 3:41 PM To: Hand, Chris ‘Subject: Pornographic display at MOCA Importance: High Chris, Upon entering the Laura Street doors today at the Museum of Contemporary Art (MOCA), I saw a large picture on display straight ahead hanging on the lower tight corner of the gallery wall of a woman with bate breasts exposed and laying in a questionable position. Given that any member of the public, including children of all ages can enter, and are in fact encouraged to do so, as City Council President I take great offense on behalf of the people of Jacksonville that the City would accept this. The City of Jacksonville is currently budgeted to give MOCA $233,029 in taxpayer funds for the current fiscal year. Unless Mayor Brown supports this inappropriate, pornographic display, and accepts that anyone, including children can enter and see it, insist that you immediately cause to be pulled all funding designated for MOCA for the current fiscal year ot otherwise explain how this will be addressed within 24 hours look forward to your response.