Fire in the Belly

by Cynthia Carr

  On Memorial Day weekend 1990, David went back to Normal to finish work on the lithographs. Though he would be back in New York by June 2 or 3, he worried about leaving for even a short time because of the ongoing work at his building. The landlord now wanted to put in a new boiler, to replace the radiators with baseboard heaters, and to install new double-glazed windows. He wrote to the lawyer he had on retainer to say he felt vulnerable. Some tenants had been going through eviction proceedings. His gas had been shut off without notice. It had taken three weeks to get a lightbulb changed in the hallway. He’d had to endure a lot of carbon monoxide and thick black soot from heavy equipment idling for hours along the sides of the building. Noise and vibrations had been intense at certain periods.

  Not mentioned to the lawyer—and more irritating than threatening—the hookers who worked his corner at night were so noisy that he kept a carton of eggs on top of the refrigerator to throw at them. Sometimes he painted the eggs black.

  David arrived in Illinois with a gift for Patrick, Gran Fury’s “Read My Lips” T-shirt with an image of two men kissing. “I put it on immediately,” said Patrick, “and we were going to a gun shop to buy police targets.” That would be the background image for Fire. “David said to me, ‘Wait. You’re going in there with that shirt on?’ He didn’t want me to get hurt. I said, ‘Why not? They’re just going to look at me like I’m some freak—if they even notice.’ Actually, they didn’t bat an eye. I bought the targets. David didn’t come in with me. He sat in the truck.”

  Patrick worked with him on the lithographs. David had never done one before, and he had some trouble with the touche technique that can give a lithograph the look of a watercolor. He told Patrick he couldn’t control it, and he didn’t like it.

  Someone had let them into the workshop at ten P.M. and they were alone. Patrick asked, “Did they show you the crayons?”

  David brightened. “Crayons? They’ve got crayons?”

  David told Patrick to draw the snowman for Water. “He let me into his work,” said Patrick. “That was a huge gesture for me. He told me he wanted me to believe in myself. ‘Believe in your vision,’ he would say. I didn’t know I had a vision.”

  Donald Wildmon sent an urgent five-page letter to the 425,000 members of the American Family Association, telling them that “David Wojnarowicz, the homosexual creator of the NEA-funded ‘Tongues of Flame’ catalog—which featured ‘Christ the Drug Addict’ amidst hardcore homosexual photographs”—was now suing him for a million dollars. “This is the most important letter I have ever written you,” Wildmon told his members. “I am asking you to make as generous a gift to AFA as possible.”

  He pointed out how the “left” had repeatedly used the courts “to take away the rights of Christians while promoting the ‘rights’ of pornographers, atheists, child molesters, abortionists and homosexuals.” He was not asking for help to pay off the million dollars. He would win this lawsuit. No, he wanted contributions to set up a “crack team” of Christian lawyers.

  “The AFA Legal Team will not only react to actions made against Christians,” he promised, “but initiate actions that will put the pornographers and child abusers and homosexuals and humanists on the defensive.”

  In a “VERY IMPORTANT!!!” flyer enclosed with the letter, Wildmon stated that he’d made an error. The “radical homosexual artist/activist” was actually asking for five million dollars.

  That spring, before David heard about the AFA mailing, he’d learned that he and Phil Zwickler had won a New York Foundation for the Arts grant of five thousand dollars for Fear of Disclosure. It isn’t clear how much they actually received, since neither was able to complete the public service event required of NYFA recipients.

  Zwickler was then working as editor of the People with AIDS Coalition Newsline. “When the Wildmon thing came up, he thought that David had an opportunity to become a very public figure,” said their mutual friend Norman Frisch. “He thought David should be doing a lot of press, making appearances, and David was just too weighted down and overwhelmed and angry to be in public very much. He was not making himself available to people.”

  Frisch’s work with the Los Angeles Festival brought him to New York frequently, but he’d been unaware of the Wildmon case. “David explained to me how he had been personally singled out as the devil by this guy,” Frisch said. “He really felt victimized by it. Through his writing, he worked it out. He fought back. But at this point, he hadn’t done that writing yet. And he was afraid of what was coming down on him. He was very paranoid about people trying to get at him, so he was not responding to the press or to activists who wanted to push him upfront. He just wasn’t ready to go public. He thought, you know, people were going to try to kill him.”

  Frisch witnessed big shouting matches between David and Zwickler about the right way to conduct the politics of the response. “Phil was a very volatile person and not a good patient when he was ill,” said Frisch. “On top of everything else, he was losing his eyesight, which made him very, very fearful that he was going to lose his independence. And he realized that this was really the end of his career, so he became even more volatile. When he and David would disagree, they would kind of explode at each other. They’d get into a big argument about who was sicker. David would say, ‘You don’t realize how fucking sick I am and how bad I feel, and I just don’t have the energy for this.’ Phil would say, ‘I’m sicker than you, and I have the energy for it.’ Then they would start with what drugs they were on and what infections they had. They would try to outdo one another with their symptoms. It would have been comical if it wasn’t so sad.”

  In June, David signed his contract for Close to the Knives. The five-thousand-dollar advance was small but he didn’t care. He didn’t think he had a lot of time left. He just wanted the book to get out there.

  Arguments for both sides in Wojnarowicz v. American Family Association were laid out that June in the pretrial briefs. Lawyers for Wildmon and the AFA responded to the complaint with several motions to dismiss. For example, Wildmon’s lawyers asserted that no artwork had been mutilated, only reproductions. That the reverend’s descriptions of the pictures as “part of” the “Tongues of Flame” catalog indicated that they were details of larger pieces. That, in any case, the whole piece did not have to be shown: “One may criticize Hitler for the gas chambers without being required to compliment him on the trains running on time, even if it is argued that the failure to so compliment him gives a distorted view of his regime. So one may criticize an artistic creation for the moral repugnance of a part of it without being required to evaluate the rest as to its artistic merit.” They argued that David’s reputation had been enhanced, not damaged, by their attack on him. That if he was going to take NEA money, he couldn’t cry foul when some of his work was shown to Congress. That Wildmon’s criticism of his work was political and therefore “protected” speech, which the artist hoped to censor. Most startling was their point that even if Wildmon really intended to label David a pornographer, that was not defamatory since “pornography can in many instances exist as a protected art form.”

  Then, barring dismissal, they wanted a change of venue so the case would be tried in Wildmon’s home state of Mississippi. To support the latter motion, Wildmon’s lawyers stated at a status conference on May 30 that the reverend had mailed only one copy of his broadside into the Southern District of New York—and that to Cardinal John O’Connor. The discovery process (ordered by the court over AFA objections) revealed that he had actually sent 210 copies into New York state, including 63 to newspapers and 25 to radio stations.

  Motions for dismissal and change of venue would be addressed at the beginning of the trial, set for June 25. In mid-June, David and Reverend Wildmon were each deposed by a lawyer from the opposing side, part of pretrial fact finding.

  Wildmon had assembled a small team of religious right lawyers to defend him. Joseph Secola, the lawyer for Operation Rescue, deposed David. Often a future w
itness will try to say as little as possible, but the transcript of David’s deposition is notable for answers about his work and process that go on for pages. Secola finally complained, “I’m getting narrative responses to almost every question I ask.” He wanted to establish some things that could be used at trial. Had the AFA actually called David a pornographer? David wouldn’t say the word “no” but—no, they’d only made him look like one. Secola pulled out a copy of the letter David had written to the dean at Illinois State explaining why it was important to him that the “Postcards” essay be included in the “Tongues of Flame” catalog. David had addressed it “to the Dean and whomever else it may concern.” Who was “whomever else”? Had it been widely distributed? (No.) Wildmon’s lawyers were also using the Village Voice article I had written about David as a defense exhibit because I said he’d used Hujar’s porn collection to make the small circular insets in The Sex Series. Secola wanted to know if this was accurate. David replied that he would call them “sexual images,” not porn. It didn’t seem like much was discovered by either side. Wildmon, deposed by Kathryn Barrett, readily admitted that he’d gone through the catalog, plucking out images he thought would be most offensive to “the average taxpayer.” He also testified that he had mailed just over six thousand copies of the pamphlet; the pictures were simply too offensive to send to 178,000 pastors.

  David’s lawyers had charged the AFA with libel, with two counts of copyright infringement, and with violating a New York state law against altering, defacing, mutilating, or modifying a work of art and then presenting it as the authentic work of the artist. The lawsuit also charged that the AFA’s misleading description of David’s work violated a federal law against trademark violation and false advertising.

  On June 25, the trial began with Judge William C. Conner dismissing the latter charge. He ruled that it applied to false statements about a competitor’s product and the AFA was not selling a product. He did not throw out anything else. He would not allow the trial to move to Mississippi. And he would dispense with opening statements since he’d read all the preliminary papers. This was a nonjury trial, and a no-nonsense judge who clearly wanted the proceedings to move right along. Judge Conner showed little patience for political posturing from either side.

  Some of David’s friends were seated in the gallery. Tom had taken the day off from work. I was there to cover the trial for Artforum and noted that Wildmon stayed out in the hall as David began testifying about how his work had been misrepresented. He had brought in an actual-size replica of Water to show how large and complex it was, how little had been excerpted. There were no surprises in his testimony.

  The proceedings got spikier during the cross-examination by Wildmon’s lawyer, Benjamin Bull, once part of Charles Keating’s Citizen’s for Decency Through Law, and later senior counsel at Pat Robertson’s American Center for Law and Justice and chief counsel for James Dobson’s Alliance Defense Fund. Bull queried David, for example, about the letter he’d written to the dean at Illinois State. When David’s lawyers objected, Bull explained to the judge that he wanted to show that David “was fully aware” that his work was going to be criticized. “I submit there is an inference that it could have been copied and shown to Congressmen as part of that criticism,” Bull said. But the judge excluded it.

  Bull then went through the catalog, directing David to read lines from his own essays and those written by critics, attesting to the centrality of sexual imagery in his work. Then there was the interview with Blinderman, where David said, “If my work is going to reflect my life, then I’m going to put sexuality into my work.” And what about The Sex Series? Wasn’t sexuality an integral part of it?

  Bull also wanted to make the case that the AFA had had little impact on David’s career. So he asked if it wasn’t true that museums steered away from sexually explicit work, especially work about homosexuality. Wasn’t it true that major museums would not show his work, with or without an AFA mailing? When David said he didn’t know that to be true, Bull directed him to his own “Postcards” essay, in which David had written that what Helms and D’Amato had done was just an extension of standards formed in the arts community itself, where visible sexual images were usually for the straight, the white, and the male, and where Mapplethorpe had been one of the few to break through. Bull inquired about David’s 1989 income of thirty-four thousand dollars—hadn’t he earned most of that after “Witnesses: Against Our Vanishing” opened. (No!) But didn’t he have shows coming up? “Tongues of Flame” was touring. And wasn’t it true that no one had canceled the exhibit? And hadn’t the price of Mapplethorpe’s and Serrano’s artwork gone up?

  David’s lawyers were allowed to call only one expert witness, and they chose Philip Yenawine, MOMA’s director of education, who brought some perspective to the questions above. “Sexual explicitness as this [AFA mailing] represents Mr. Wojnarowicz to make is anathema to museums, and they won’t present it,” he testified, for example. “More people have heard his name than have seen his work. If they think this is what he does, they will in fact refuse to show it.” He established that David had created a great many pieces with no sexual representations. As for Mapplethorpe and Serrano, Yenawine said that they were both more established in the art world and that the pieces of theirs attacked by the right had been presented in their entirety, not in fragments.

  Yenawine’s testimony would have impact but, he told me later, he “felt muzzled from the standpoint of saying, ‘David is not going to recover from this. He is not well, and whatever damage has been done to his career, he’s not going to have time to repair it.’ “ This had been a moment of self-censorship. Said Yenawine, “I didn’t want to say in front of David that he was dying.”

  Wildmon’s lawyers tried to keep the reverend off the stand. They’d announced that he would be their only witness, so David’s lawyers said they would wait to question him during cross-examination and rested their case. Technically, they could call no more witnesses. Then Wildmon’s lawyers announced that they would call no witnesses at all. David’s lawyer David Cole put the matter to the judge, who decided that he had induced plaintiff’s counsel not to call the reverend, so he would allow it. Bull registered his objection, but the gray-haired reverend had to take the stand.

  This man so adept at intimidating corporate leaders and members of Congress was, in person, more mousy than magnetic. To make the libel charge stick, David’s lawyers had to prove that Wildmon had acted with “actual malice.” With his questions, Cole tried to establish “malice” by showing that the reverend excerpted the parts of larger pieces he thought people would find most offensive and by failing to correct the misrepresentations Frohnmayer had pointed out in his letter about “bearing false witness.” The judge didn’t seem to be buying this.

  During cross-examination, Bull then tried to make the point that Wildmon was no art critic, just a concerned citizen. “Would you know the difference between a collage and a portrait?” Bull asked. The reverend said no. Would he object—as a taxpayer—to any sexually explicit images, even if done by, say, Rembrandt? The reverend said, “Yes I would.”

  At the trial’s end, the judge declared that he had given them an accelerated trial and would now give them an accelerated ruling on the May 18 motion for a preliminary injunction. That was granted. The AFA was enjoined from any further publication or distribution of the pamphlet, since, said the judge, there was “a reasonable likelihood” that it “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.” He would rule later on the complaint alleging libel, copyright infringement, and violation of the New York Artists’ Authorship Rights Act.

  Bull leaped to his feet to say that this injunction violated the First Amendment and would have a “chilling effect” on the American Family Association. Judge Conner, who characterized himself as “not entirely unacquainted with the First Amendment,” assured Bull that
the AFA could publish anything it wanted about David Wojnarowicz’s work, as long as it was true.

  After court adjourned, David told a reporter, “I consider this a vindication of sorts.”

  But it had been startling to see Wildmon’s team appropriate every argument artists had used against their would-be censors: the First Amendment, the specter of fascism, even the “chilling effect.” What this short trial showed so clearly was that the culture war was really a battle between two irreconcilable ways of looking at the world.

  During the week of this trial, NEA general counsel Julie Davis was on the phone, polling every member of the National Council on the Arts about the four performance artists they’d discussed at their meeting in May. A majority voted to kill the grants recommended by a solo-performance peer panel, but the final decision would be up to Frohnmayer. Later he would be self-critical about how he’d handled this: “Instead of saving the Endowment by demanding that Congress and the administration support the arts, warts and all, or giving up and admitting that our society is not strong enough to withstand controversy, I was trying to find middle ground that would appease everyone.”