Mirth & Girth

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Mirth & Girth

David K. Nelson, 1988

Acrylic on canvas[1]

122 × 91 cm, 48 × 36 in

SAIC, Chicago, IL, U.S.A.

Mirth & Girth is a portrait painting by School of the Art Institute of Chicago (SAIC) student David K. Nelson, Jr. It was painted in response to what the artist described as the deification of the popular African-American mayor of Chicago, Illinois, Harold Washington, after his sudden death on November 25, 1987 due to cardiac arrest.^[2][3] The painting depicted Washington wearing only a bra, G-string, garter belt and stockings. After a brief showing at a May 11, 1988 private student exhibition in the institute, angry African-American aldermen arrived with Chicago Police Department officers and confiscated the painting, triggering a First Amendment and race relations crisis.

Free-speech advocates condemned the seizure of the painting, while the aldermen maintained that the painting was an insult to Washington and should have been taken down. Some students at the SAIC showed their support for free speech by holding rallies in front of the school and at the Richard J. Daley Plaza. Remembering the city's recent "Council Wars" between Washington and mostly-white aldermanic majority, other students criticized Nelson for poor timing in showing a racially insensitive image.

At some point between when the painting was confiscated and when it was returned, a 5-inch (13 cm) gash was made in the painting. Nelson filed and later won a federal lawsuit against the city, claiming that the painting's confiscation and subsequent damaging violated his First Amendment rights. He and the ACLU settled with the city for US$95,000 (1994, US$138,000 in 2008) in compensation for the damaged painting after the United States Court of Appeals for the Seventh Circuit upheld the lower court's decision.^[4][5]

Contents 1 Background 1.1 Harold Washington 1.2 Creation of painting 1.3 Nelson's personality 2 Display and confiscation 2.1 Initial display 2.2 Confiscation 3 Responses 3.1 African-American community 3.2 Free speech advocates 3.3 Reactions within the SAIC 3.4 Other reactions 4 Nelson v. Streeter 4.1 Appellate court 4.2 Settlement 5 External links 6 References

[edit] Background

[edit] Harold Washington

Harold Washington, the subject of the portrait, had been a career politician in Chicago since his 1965 election to the Illinois House of Representatives. From 1965 until his election as Mayor of Chicago, Washington built a powerful African-American political stronghold in the 3rd Ward against the Chicago Democratic Machine. With the death of Richard J. Daley in late 1976 and the failure of the Machine to organize around another party boss, Washington split the white vote to win Chicago's 1983 Democratic mayoral primary election. He was then successfully elected mayor after a racially polarizing general election against Bernard Epton.^[6] His first four years were marked by the "Council Wars", a series of intense political struggles with the white aldermanic majority in City Council.^[7][8] In April 1986, a court-ordered special election resulted in the defeat of seven Machine-supported aldermen, allowing Washington to proceed with his reforms. On November 25, 1987, as he and press secretary Alton Miller began to discuss Chicago Public Schools system reform, Washington died suddenly of a heart attack in his office.^[9][10] His death was followed by a period of intense mourning by Chicagoans, particularly in the African-American community.^[11]

[edit] Creation of painting

Shortly after Washington's death, Nelson (who is white)^[12] painted "Mirth & Girth", a "full-length frontal portrait of a portly grim-faced Harold Washington clad in a white bra and G-string, garter belt, and stockings".^[5] The painting was approximately 4 feet (122 cm) tall by 3 feet (91 cm) wide.^[13] In the portrait, Washington is holding a pencil in his right hand. His aide, Alton Miller, initially mistook Washington's slumping over his desk as an attempt to pick up a pencil that had fallen onto the floor.^[14][15][16] The title of the piece is believed to have been derived from the name of an organization for overweight gay men, "Girth and Mirth".^[17]

In an interview with the Chicago Sun-Times, Nelson stated that he had painted "Mirth & Girth" over the course of one night, standing in his underwear. He said that he had painted it in response to the how the city populace revered Washington shortly after his death. Nelson stated, "(i)n Chicago, at this time, Harold Washington is like an icon. He's like a deity." In particular, Nelson painted the portrait after seeing prints of "Worry Ye Not", another poster that depicted a smiling Washington with a blue-robe adorned Jesus Christ, looking down on the Chicago skyline.^[5][18][19] Nelson later testified that he had based the iconoclastic elements of the painting on a rumor that doctors at Northwestern Memorial Hospital had discovered female underwear beneath the suit Washington was wearing at the time of his death.^[5] Further fuel for rumors came from alderman Edward Vrdolyak, who at the height of Chicago's Council Wars, often insinuated that Washington was gay, imitating Washington's demeanor, fluttering his arms and saying phrases such as "Pretty please?" in falsetto to mock Washington.^[20] Three weeks after the controversy erupted, in an interview with the New Art Examiner, Nelson explained that the portrait referenced an existing photograph of Washington holding a cigarette prop at an American Cancer Society event.^[1]

The caricature was not Nelson's first. He had drawn a portrait of his mother as "Whistler's Mother" for Mother's Day. Nelson had also drawn a caricature of his father as the model depicted on boxes of Cream of Wheat. Nelson explained, "(t)his kind of irreverence and iconoclasm runs through all my artwork". In an April Fools' Day edition of a Weekly World News parody produced by Nelson, he illustrated SAIC president Edward Jones as an infant in the arms of a bare-breasted Madonna.^[3]

[edit] Nelson's personality

In newspaper interviews in the controversy that followed, some students described Nelson as a "prankster". Others described him as irreverent, loving parody and craving attention, but not malicious.^[3] John Van Amerongen, a sculpture teacher at the Art Institute, said the painting was a caricature, and that Nelson was expressing "a sense of humor".^[3] The faculty adviser to the school's monthly publication, Joel Davies, called Nelson "an irreverent fellow with amazing supplies of energy who is always full of ideas—and a lot of them are obnoxious".^[3] However, teacher Christina Ramberg called the painting "offensive and in poor taste", adding that "[if the painting had been done in class], any teacher would have talked to the student about the appropriateness of this sort of thing. My suspicion is this young man didn't completely understand what he was up to. The content is very petty."^[3]

For his part, Nelson said on a radio interview on WLUP that he did not intend to ignite a racial controversy.^[18] In an interview with the Chicago Tribune, Nelson said, "I think that Harold Washington and his memory and what he's done for the city are so great that one little painting shouldn't tarnish his image", but he refused to apologize for the painting.^[3] Nelson also revealed that he thought he had heard the first rumors of Washington wearing women's underwear while listening to WLUP's on-air comic DJs; however, this was denied by the DJs during the interview.^[1]

[edit] Display and confiscation

[edit] Initial display

On May 11, 1988, "Mirth & Girth" was displayed at a private exhibition in one of the school's main interior hallways. The painting was part of a set of six that Nelson was displaying in a judged three-day student fellowship exhibition held to showcase upcoming graduates. Another of his works was a self-portrait titled "I'm Sensitive, and I Love All Humanity", depicting Nelson holding little people of multiple nationalities. Describing it as another of his iconoclastic and irreverent works, Nelson explained that the motive for the self-portrait was to question "the motives and values of this whole 'We Are The World syndrome'".^[3] As soon as the exhibit opened, between 7:30 and 8:30 am, the painting drew enough negative attention for the Institute to post a security guard in front of the painting. Shortly thereafter, the school began to receive angry phone calls about the painting.^[5]

By now, word of the controversy had reached the Chicago City Council. Alderman Bobby Rush (then of the 2nd ward)^[21] put together a resolution that would cut off the city's contribution to the Art Institute unless it apologized for displaying the painting. In part, the resolution read "Whereas, the artist David Nelson obviously exhibits some type of demented and pathological mental capacities ...".^[1] Another resolution was written that asked the Institute to remove the painting immediately. Both resolutions passed.^[5]

In the meantime, Nelson returned to the painting at about 8:30 am. He had forgotten a hammer and nails to hang the painting, and had left it leaning against the wall for an hour. Shortly after he returned, city aldermen, police officers and local reporters arrived at the scene, leading to a dramatic confrontation between aldermen and other students, while Nelson remained incognito near the scene.^[3]

[edit] Confiscation

Aldermen Edward Jones (20th) and William C. Henry (24th) were the first aldermen to arrive at the scene. According to the federal lawsuit, Henry showed he had a gun, and then with Jones removed the now-hung painting from the wall and placed it on the floor, facing the wall. After they left, another student rehung the painting. Three other aldermen, Allan Streeter (17th), Dorothy Tillman (3rd) and Rush arrived later. They took down the painting and attempted to remove it from the school, but were stopped by a school official. The three then took the painting to the office of the school president Anthony Jones (no relation to Edward Jones). The painting had a 5 in (13 cm) gash,^[2] and it had been wrapped in brown paper.^[5]

At some point during the meeting, the police department told President Jones that the painting amounted to "incitement to riot".^[22] Alderman Tillman threatened to burn the painting in President Jones' office, but Chicago Police Department (CPD) lieutenant Raymond Patterson advised against this. Instead, another unnamed alderman called CPD superintendent Leroy Martin. Martin called Patterson in Jones' office and ordered Patterson to take the painting into police custody. Another CPD sergeant accompanied Rush, Streeter and Tillman to a waiting police car with the wrapped painting in hand. Parts of the incident were later broadcast widely on television.^[5][4]

The incident was marked by a volatile shouting match between the aldermen and students, and met with condemnation from free-speech advocates. As the aldermen escorted the painting to the police vehicle, a mass of students outside of the institute jeered them, naming the aldermen "commies", "fascists", "brownshirts" and "philistines".^[18][1] Seventeen bomb threats were recorded at the school after the controversy erupted.^[1]

[edit] Responses

[edit] African-American community

Shortly after the incident, a black alderman told reporters that he believed the painting was the work of a Jewish artist. Nelson replied through a Chicago Tribune story that he "is not Jewish".^[3] The remark was made in part because racial tensions had already been elevated a week earlier after the firing of Steve Cokely, a mayorale aide, by African-American mayor and Harold Washington's successor Eugene Sawyer. Cokely had accused Jews of "engaging in an international conspiracy for world control". His firing caused a rift in segments of the black community, leading some to believe that Sawyer was also involved in a conspiracy.^[23]

There is a moral responsibility here that transcends, as far as I'm concerned, transcends the courts, transcends the First Amendment. Allan Streeter, 17th Ward Alderman[24]

In a New York Times article published on May 13, 1988, Alderman Streeter reiterated his stance regarding the removal of the painting, saying that he would have "gone to jail to get that painting down", calling it "an insult to a great man and an affront to blacks".^[12] On May 16, 1988, Streeter appeared on the local public television station news program Chicago Tonight. He reinforced that Nelson had abdicated his "responsibility to his constituency" to "do what is right". In the segment, he reaffirmed that he believed the aldermen had "a law, the law of common sense, the law of morality, the law of decency [that] transcends the First Amendment".^[24]

The Art Institute has long been a closed bastion of white male Western cultural supremacy. James A. Brame, president of the Illinois Alliance of Black Student Organizations[25]

Operation PUSH, an organization that pursues social justice and civil rights, threatened to impose "sanctions" on the Art Institute unless the Institute acted to prevent offensive portraits from being shown by students or contributing artists in the future.^[26] Separately, the Illinois Alliance of Black Student Organizations called for racial parity with regards to faculty and student enrollment within the school. One recent African-American students alleged that there was an underlying attitude of racism at the school, while other black students distributed a flyer listing incidences of theft and advice given to foreign students about socializing with blacks. By contrast, another white graduate noted that school officials looked at students' slides and paintings without knowing the race of the student. The school noted that eighteen percent of its 1,312 undergraduate students were minorities, a higher percentage than comparable private professional art schools.^[25]

On February 12, 1994, during a rally to raise money for the defendants' mounting legal bills, Nation of Islam leader Louis Farrakhan supported the three aldermen's right to seize the painting, calling it "an act of righteous indignation". Farrakhan referred to Washington as "a father figure for black people", and described the painting and subsequent lawsuit "a total disrespect for our feelings and our community".^[27]

[edit] Free speech advocates

If there was a threat, the way to prevent a riot would have been to protect the painting and arrest the rioters and hecklers. What they did was arrest the painting. Jay Miller, executive director for the ACLU[18]

On May 12, 1988, representatives from the American Civil Liberties Union (ACLU) picked up the painting and returned it to Nelson. Jay Miller, another representative for the ACLU, described the incident as "vigilante stuff", noting that the action "was done in the name of one of the great civil libertarians of our time. Harold Washington had a 100 percent voting record in Congress and in the state Legislature on issues of civil liberties and civil rights."^[18] In 1984 Washington had supported the civil rights of sculptor John Sefick after Sefick had created a satirical statue of Washington.^[1] By comparison, former mayor Michael Bilandic had ordered a Sefick statue satirizing his handling of Chicago's crippling Blizzard of 1979 covered by a blanket, a decision that was later overturned in federal court.^[28]

Students from the SAIC protested on Columbus Drive the next day, holding signs that asked drivers to "honk for free speech". Student leaders began to consult attorneys to file a lawsuit against the Chicago Police Department and the aldermen. Other groups of students planned a "be-in" at the Richard J. Daley Plaza, but it was canceled after the students learned other groups might cause a confrontation.^[29] Some students felt that the school had been a victim of racial politics, and that the incident would be used to censor the institute.^[18]

On Chicago Tonight, Daniel Polsby, a law professor at Northwestern University, cited federal statutes violated during the confiscation of the portrait. He then faulted Marshall Field's reluctance to defend the First Amendment, further comparing the seizure of Mirth & Girth to then-Arkansas governor Orval Faubus' refusal to abide by the First Amendment and allow minorities to enroll in Little Rock Central High School. According to Polsby, Faubus' rationale at the time was to preserve a delicate civil rights situation. Polsby called the aldermen's action "crushingly ironic and terribly sad".^[24]

[edit] Reactions within the SAIC

At the SAIC, students' characterizations of the painting ranged from political caricature, to "whimsy", to a commercial success. One student noted that Nelson was "known nationally now, which is every artist's dream". Another student noted that "(a)rtists have to be responsible for what they make, and this guy is not being responsible". In a meeting with 100 students after the incident, Anthony Jones, then-president of the SAIC, assured the students that he stood behind their First Amendment rights. Regarding the painting, Jones said that the painting was in poor taste and should not have been displayed.^[18]

We understand students have First Amendment rights, but we do not condone or support the use of the First Amendment to disparage the memory of an important leader like the late Mayor Harold Washington. Marshall Field, Chairman of the Art Institute of Chicago[18]

Members of the Art Institute Board met the day after the incident and agreed not to display "Mirth & Girth" any further. Chairman Marshall Field also issued a formal apology for displaying the painting and agreed to consider demands that the school both hire more black administrators and accept more black students. Field also published the apology in each of the city's daily metropolitan newspapers.^[18] After the apology was issued, Polsby strongly criticized Field's refusal to more aggressively stand up for the students' First Amendment rights.^[24]

[edit] Other reactions

Members of the Council of Religious Leaders of Metropolitan Chicago, which included leaders from mainline Protestant, Roman Catholic and Jewish organizations from the city, issued a statement that expressed "moral dismay" over the painting. They further added that the display of the painting showed "a lack of sensitivity which we could have expected from those who were responsible for its showing".^[12]

As for the painting's critical reception, one local art reviewer mentioned that "the only thing [the SAIC] might have felt sheepish about was not having a staff that in four years could instill in Nelson a better grasp of figure painting".^[1] In a newspaper interview, Nelson responded that the criticism was "the one thing that did make me kind of angry. I don't think the painting was poorly executed, though it wasn't my favorite painting."^[3]

Nelson gave only a few interviews before leaving Chicago for the suburbs, and then Graceland to avoid the press.^[1] On the advice of his friends, Nelson stayed away from his graduation ceremony on May 14, 1988.^[29] He turned down a $15,000 (1988, $22,000 in 2008) offer for the painting, calling it a "grossly inflated" price. He also turned down a separate opportunity to appear on Phil Donahue's syndicated talk show, saying that he never watched the show and was genuinely uninterested in the offer.^[1] Other than the interview with WLUP, Nelson's views were expressed by Harvey Grossman, the legal director for the ACLU. Through Grossman, Nelson said he would not press for the returning of the painting, as it had fulfilled its purpose of "drawing attention to his 'iconoclastic' work".^[30]

[edit] Nelson v. Streeter

On June 23, 1988, the ACLU filed a federal lawsuit on behalf of Nelson against the three aldermen who were seen on television handling the painting.^[31] It claimed the removal of the painting violated Nelson's First Amendment right to freedom of expression, Fourth Amendment right to protection from unreasonable seizures, and Fourteenth amendment right against being deprived of property without a hearing. The ACLU sought $100,000 (1988, $182,000 in 2008) to compensate Nelson for damage to the painting, and to "punish" the aldermen and police for their actions.^[5][31]

Ald. Robert Shaw (9th) called the suit "a slap in the face to the black community". Rush questioned the motive of the suit, as himself, Tillman and Streeter all were supporters of white Alderman Timothy C. Evans (17th), a political rival of black mayor Eugene Sawyer. Rush specifically called the suit "frivolous" and "impetuous", openly questioning whether the ACLU had filed the suit to enhance fundraising activities or for other political reasons.^[31]

Newspapers brought the case to public attention again on February 10, 1990 when the City of Chicago refused to pay mounting legal costs for the aldermen. The aldermen argued that they were performing their official duties "in protecting the security of the city during the turmoil created by the exhibit" when they removed the painting. The city contended that the aldermen had taken the action as individuals.^[32] Nelson refused a $10,000 (1990, $16,000 in 2008) settlement at the time.^[33]

On August 11, 1992, U.S. District Judge George Lindberg dismissed the City of Chicago from the lawsuit, but ruled that Superintendent Martin must go to trial and that the three aldermen violated Nelson's civil rights. Lindberg supported the recommendations regarding that issue U.S. Magistrate Elaine Bucklo's had made in March 1992. Tillman's lawyer, James Chapman, recommended to Tillman that an immediate appeal be filed in federal court.^[34]

[edit] Appellate court

So we must ask whether in 1988 the law was clear that local government officials may not go onto private property without invitation (the aldermen had not been invited to the exhibition of student work), seize a painting that they do not like because it vilifies a public official with whom they had been associated, and wrap it in brown paper and remove it so that no one can see it. To ask the question is pretty much to answer it. As Chief Justice Warren said in another case involving an effort to suppress public criticism of a mayor of Chicago, "This is a simple case." Judge Richard A. Posner, Chief Judge of the U.S. Court of Appeals for the Seventh Circuit[18]

In the appeal, decided February 1, 1994, Chief Appellate Court Judge Richard Posner, along with Circuit Judges Frank H. Easterbrook and Michael Stephen Kanne affirmed Lindberg's earlier decision. Writing for the court, Posner outlined and rejected each of the defendants' claims. Posner rejected the claims of official immunity, establishing that as officials, the city had no right to enter private property and take "offensive" paintings off its walls. He also rejected the argument that removing paintings from walls was an official duty.^[5]

Posner also rejected the argument that the defendants were removing the painting to save Chicago from racial riots that the continued showing of the painting may have started, and in which it might have been destroyed. He found that Tillman herself threatened to burn the painting on the spot, and that there was no mob. In addition, the court found that because Nelson had not intended to provoke a riot, the First Amendment could still be used to protect his speech.^[5]

[edit] Settlement

On September 20, 1994, the city settled the lawsuit. The ACLU and Nelson split $95,000 (1994, $138,000 in 2008) from the city of Chicago for damage to the painting which occurred during its confiscation; in return, the ACLU agreed to drop claims against the city and Superintendent LeRoy Martin.^[35][36][4] A city lawyer explained that had the city gone to trial and lost, it would have been responsible for up to hundreds of thousands of dollars of the ACLU's legal fees.^[37]

Grossman stated that the relatively small settlement made it clear that Nelson had proceeded with the lawsuit "on a matter of principle." Tillman, however, called the settlement a "great victory." Her declaration was based on the belief that "we didn't admit to anything, all the charges were dropped, we're not paying anything (in damages), and we preserve our rights to pursue efforts to have our legal fees paid". In turn, the elected officials agreed not to appeal the district court's ruling that they violated Nelson's rights. The city agreed to issue procedures to police regarding what materials protected by the First Amendment may be seized.^[35] Left unresolved were the hundreds of thousands of dollars of legal fees owed to lawyers defending Tillman, Rush and Streeter; by September 1994, $200,000 (1988, $364,000 in 2008) in fees were owed by Tillman alone.^[37] Earlier in the year, the City Council's Finance Committee voted against paying for the aldermen's legal fees. The vote split along racial lines, 12 to 8.^[38]

At the time the lawsuit was settled, Nelson did not issue any statements.^[35] The Chicago Tribune reported that he was employed as an advertising artist at an undisclosed firm; he continued to paint in his free time.^[37] The painting was not sold, exhibited, or repaired after the incident. Nelson is believed to still have physical custody of the painting.^[5]

[edit] External links

• David K. Nelson's website

[edit] References