By Paula Span
June 26, 1990

NEW YORK, JUNE 25 — Perhaps only a federal case could have brought the Tupelo, Miss., minister with the tiny silver cross on the lapel of his suit and the gay East Village artist in the unaccustomed tie and black denims into the same room.

David Wojnarowicz creates angry multilayered collages that often include — along with play money, bits of maps, photographs of houses and clock faces, plus his own writings — images of homosexual and heterosexual lovemaking. When the Rev. Donald Wildmon, executive director of the conservative lobbying group the American Family Association, saw some of those sexual images, "I kind of got sick to my stomach," he testified in U.S. District Court today. "I was angry and upset because tax dollars went to help pay for some of this," in the form of a $15,000 National Endowment for the Arts grant to the Illinois State University galleries that mounted a Wojnarowicz retrospective last winter and published a catalogue.

When Wojnarowicz saw what resulted from Wildmon's distress — a pamphlet titled "Your Tax Dollars Helped Pay for These 'Works of Art,' " mailed to more than 6,000 members of Congress, members of the clergy and media outlets and illustrated with 14 small details (including one of Christ with a hypodermic needle in his arm) taken from the artist's larger works -- "it caused me a great deal of anxiety and outrage," he said in court. He filed suit against Wildmon and the AFA last month.

Today, at the end of a one-day trial, Judge William Conner ruled that there was "a reasonable likelihood" that the AFA pamphlet "could be construed by reasonable persons as misrepresenting the work of the artist, with likely damage to the artist's reputation and to the value of his works," a violation of Wojnarowicz's rights under the New York Artists Authorship Rights Act. Such reasonable persons "might get the impression that the photographic reproductions included in {the pamphlet} represented complete works of distinguished from fragments of larger works, as in most cases they were," the judge said.

Conner therefore granted a preliminary injunction against any further publication of the pamphlet. But he reserved ruling on the suit's other contentions — that Wildmon and the AFA had libeled Wojnarowicz and infringed on his copyright — until later this summer.

"I consider this a vindication of sorts," the artist said after court adjourned. One of his attorneys, David Cole of the Center for Constitutional Rights, a New York-based civil rights group, called the preliminary injunction "a very important victory for artists and for truth in this controversial debate." But Cole added that "we will have to wait to see to what extent his rights are fully vindicated by corrective measures and damages."

The artist, who testified that he has earned about $17,000 this year and who has learned he has AIDS, has asked for damages totaling $5 million and for corrective advertising in major national newspapers and a corrective mailing to the people who received the AFA pamphlet.

Phoenix attorney Benjamin Bull, who led the defense of Wildmon and the AFA, downplayed the ruling, saying the injunction would not "alter any action that AFA intended to engage in anyway." As to the judge's eventual ruling or the possibility of damages, "it's all speculative," Bull said. "They haven't put a dollar amount on anything." Wildmon declined comment.

In its court filings, the defense has argued that Wildmon and the AFA had the right under both the First Amendment and the "fair use" doctrine of copyright law "to show the images which they and others find offensive." It also argued that, far from being damaged, Wojnarowicz's reputation has become "widespread" through this and other NEA-related controversies.

Although the suit only concerns the use of parts of the artist's works in the AFA mailing, it pits against each other two individuals who have been prominent in the intensifying furor over art, obscenity and free expression. Partisans of both Wildmon and Wojnarowicz see the issue as extending beyond the legal questions addressed in court today.

Wildmon, a United Methodist minister, has for years been a leading conservative crusader against films, music, television shows, magazines and, most recently, art that he deems offensive.

In 1986 he was instrumental in pressuring convenience stores like the 7-Eleven chain to stop selling Playboy and Penthouse, magazines he called "pornographic." He led demonstrations against the Martin Scorsese film "The Last Temptation of Christ" in 1988. Last year he threatened a boycott against Pepsi-Cola over a much-ballyhooed ad campaign featuring Madonna, whose "Like a Prayer" video Wildmon found "sacrilegious"; Pepsi pulled the ads. He's probably best known for his boycotts of advertisers on TV shows like "Saturday Night Live," "Knots Landing" and "The Equalizer," all of which he characterized as "offensive" for various reasons. Last year the AFA, which has an annual budget of $5.2 million and pays Wildmon $50,000 a year as its executive director (according to depositions in the current case), contributed $2 million to the boycott effort.

Wildmon has joined Sen. Jesse Helms's effort to deny NEA funding for art he finds objectionable. The real agenda of the Wojnarowicz lawsuit is "to strike back at Dr. Wildmon for bringing heat on the NEA," charges Tom Minnery, spokesman for another conservative lobbying group, the California-based Focus on the Family.

Even Wildmon's opponents concede that he's been influential during the current arts debate. "Unfortunately, from my point of view, he's been pretty effective in keeping things alive," says Ellen Lovell, chief of staff for Sen. Patrick Leahy (D-Vt.). "Certain members {of Congress} did a good job last year on their own of stirring things up. Wildmon's picking it up and doing national mailings — along with the Eagle Forum and now Pat Robertson's radio talk shows — has increased the mail on Capitol Hill."

Wojnarowicz, 35, has also been front and center in the NEA flap, though those issues are not the subject of his suit. He testified today that he was a high-school dropout and a teenage runaway who for a time earned a living as a prostitute, and was first noticed in the early '80s when he was stenciling artworks on downtown New York sidewalks and walls. He became known in art circles for his multimedia collages but first came to broad public attention during last fall's exhibit at Artists Space in SoHo.

That show, called "Witnesses: Against Our Vanishing," was a collection of works (including Wojnarowicz's) related to the AIDS crisis. It was Wojnarowicz's furious essay in the show's catalogue that led newly appointed NEA chief John Frohnmayer to withdraw the endowment's $10,000 supporting grant. Frohnmayer later relented and restored the money on condition it not be used to pay for the catalogue, in which Wojnarowicz had assailed Cardinal John O'Connor ("this creep in black skirts"), Jesse Helms ("the repulsive senator from zombieland") and other public figures for their responses to AIDS. The essay explored his terror and rage as his friends died and as he was himself diagnosed with AIDS.

Barry Blinderman, curator of the Illinois State retrospective, calls the artist "very, very passionate...He has a personality that can magnetize, galvanize people." At the retrospective's opening, Wojnarowicz gave a half-hour performance, half-read and half-improvised, as four video monitors behind him flashed images of animals, political demonstrations, heterosexual and homosexual lovemaking. It was, says Blinderman, a "passionate discourse where he openly began by saying, 'Does it bother you that I'm homosexual?'...Very confrontational." It concluded, he says, with "10 minutes of unbridled applause."

"The fact that he's decided to file this suit against the Reverend Wildmon has made a lot of people very happy," said Laura Trippi, curator at the New Museum of Contemporary Art in New York, where Wojnarowicz is currently represented by a 10-by-12-foot installation combining videos, papier-mache sculpture, photo montages and text. "It seems the first time someone in the arts community has taken the offensive instead of sitting back and waiting...I'm proud. It must be taking a great deal out of him, but it feels as if it's something he's doing for me, on my behalf."

Among the 20 or so spectators in the courtroom today were Artists Space executive director Susan Wyatt, photographer Nan Goldin, who curated the "Witnesses" show, and performance artist Karen Finley, who has also come under congressional criticism for her NEA-supported work.

Wojnarowicz, who arrived at the federal courthouse toting a 6-by-8-foot photo reproduction of his work "Water," from which Wildmon had lifted two details, said in direct testimony that "through the use of selective editing, {the pamphlet has} essentially stripped my work of political and artistic content" and could lead to the perception that he was "a banal pornographer." After seeing the pamphlet, he said, "I went through a period of time of very intense depression" over the way his work had been distorted, and since then, he said, he has been less productive than usual in his work.

The defense announced that it would call no witnesses, but since both the judge and the plaintiff's attorneys had expected the defense to call Wildmon and had reserved questions for cross-examination, the judge agreed that the plaintiff could call him. On the stand, Wildmon said the pamphlet's purpose was "specifically, to let a few key people in positions of influence and leadership know the kind of artwork our tax dollars were paying for." If the artist involved had been Rembrandt, attorney Cole asked him, would he have taken the same action? "If it had this kind of imagery in it, sure," the minister said. "I would be offended. I would oppose it." He added, however, that he had "no malice toward Mr. Wojnarowicz whatsoever."

The plaintiff also called expert witness Philip Yenawine, director of the education department at the Museum of Modern Art. Yenawine testified that to the extent that the public had the impression that explicit images of homosexuality constituted the bulk of the artist's work, Wojnarowicz's reputation would be harmed by the pamphlet. At museums, "if people have to make a choice between one artist and another, as they do every day, and one looks as though it's going to bring on a great deal of censure...they will not choose" that artist, Yenawine said. Not being shown in museums would affect the extent to which critics and writers paid attention to the artist and therefore diminish collectors' willingness to buy his works, he said.

Defense attorneys and Judge Conner, noting that works by Robert Mapplethorpe and Andres Serrano had increased in value since the tumult over NEA funding began, asked whether Wojnarowicz might not benefit from the same sort of notoriety. Yenawine responded that Serrano's and Mapplethorpe's images had been represented in their entirety and that those artists had been further along in their careers when controversy hit.

"Mr. Wojnarowicz, as we all know, has AIDS," Yenawine added, "and I don't think he's got the same kind of time to apply to it."