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Tilted Arc

The history of art has sometimes been presented as a history of styles. The history of public art will more likely be presented as a history of intentions. -- Miles Malcolm1

Public art is defined as art in any media that has been designed and

executed to exist in the physical public domain, often outdoors and accessible to

anyone and everyone. Charging Bull in New York, Covenant in Philadelphia, and

Cloud Gate (nicknamed The Bean) in Chicago, are all examples of public art.

The public art piece is commissioned by an interested party, crafted and

executed by an artist, and viewed by all; however, who gets to make decisions

about these pieces? Through the installation of his sculpture titled Tilted Arc,

artist Richard Serra sparked a controversy that hinged on this question, thus

becoming one of the most provocative disputes over public art in the twentieth

century.

Commissioned in 1979 by the General Services Administration (GSA),

Serra’s massive slab of unadorned steel stood in a densely populated area

between buildings where many workers crisscross. At an impressive 120 feet

long and 12 feet high, the sculpture tilted, curved, and split the Federal Plaza into

two distinct sections. In the same way that the sculpture divided the space in

which it existed physically, Tilted Arc also divided its viewers on a symbolic level

as it attracted both fierce defenders and intense opponents. A clear and dramatic

struggle for power erupted between members of the art world, members of the

commissioning public agencies, and members of the public sector who argued

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both in favor and against the removal of Serra’s work. After years of debate, a

public hearing, and various appeals, Tilted Arc was finally dismantled in 1989.

The battle over the removal of Tilted Arc exposes mechanisms of power

that determined the existence of the public artwork at the time of its installation

and subsequent destruction. Art historian Grant Kester wrote about a similar

situation that occurs in public art cases like Tilted Arc. In his article, “Rhetorical

Questions: The Alternative Arts Sector and the Imaginary Public,” Kester

investigates the nature of the power struggles that erupted in the late 1980s and

early 1990s. Rather than reading into the clash of values articulated in the public

art debate, Kester is more concerned with understanding how the social and

ideological positions taken up by arts administrators and artists involved in the

institutions of public patronage interact with one another. Kester steers clear from

analyzing specific instances of this debate; instead, he creates an analytical

framework in which he investigates the minorities that claim to speak on behalf of

the majority, or the ‘imaginary public’.2

Decisions made as part of power confrontations will be made in favor of the side with the most power, and the so-called guidelines or criteria that are ostensibly the basis for decisions will be bent and twisted, often out of possible recognition, during the process.

– John J. Costonis3

Applying Kester’s model to Serra’s controversy provides a new way of

thinking about Tilted Arc: a struggle among self-interested factions claiming to

represent the public. Using this mode of thought, I will investigate how the

winning party in the Serra controversy was able to prevail over the others.

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Breaking down the debate by decisive points will expose how power was

exercised at each point. After analyzing and understanding these important

moments, I will ultimately answer the question of who was entitled to make

decisions about Tilted Arc and public art at that time.

Moment I: Controversy Before Construction

As part of their Art-In-Architecture Program, the GSA nominated and

approved Richard Serra to design a permanent installation in the Federal Plaza

in Manhattan in 1979.4 On March 3 of the following year, a design-review panel—

consisting of Mike Marshall (commissioner of Public Building Services), Karel

Yakso (counselor for the Art-In-Architecture program), and David Dibner

(assistant commissioner for design and construction)—convened to vote on

Serra’s proposal for Tilted Arc.5 The presentation had adverse reactions from the

group: “John Q. Public will call it a wall,” remarked Yakso, while Dibner viewed

the “symbolism as a barrier.”6 Serra, displeased with the panel’s response,

became so upset that GSA Administrator Rowland G. Freeman was called in to

calm him. Freeman remembered the episode in this way:

There was complete disagreement with putting [the sculpture] up there. I disagreed with it, too. But I was caught in a political problem, and that’s what the decision was made on. I had enough darn problems. I was trying to clean house at GSA and I didn’t need this…I had the NEA recommending something, and there were strong feelings on the part of a lot of people that Mr. Serra did good work. I thought it was a piece of junk. I have never agreed with rusty metal.

-- Rowland G. Freeman7

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Judging by these statements, the design-review committee was divided

but negative regarding Serra’s proposal for Tilted Arc. Despite strong

reservations, the members of the GSA staff approved the design, as Freeman

described, because it seemed like the path of least resistance. Administrator

Freeman “gave a conditional approval at that time, conditional on the resolution

of the technical questions such as wind load, waterproofing of the plaza, etc.”8

Although Serra’s proposal clearly garnered a negative response from the

beginning, Freeman argues that members of the National Endowment for the

Arts (NEA) were pushing for the process to move forward. At this point in the

story of Tilted Arc, Serra and his supporters seemed to hold the power as his

design proposal overcame the negative response from the GSA’s design-review

panel; however, the dynamics of influence changed as soon as construction of

Tilted Arc began.

Moment II: Tilted Arc is Born, Fire Starts to Burn

The cries of protest began as the piece was under construction, so the workers [putting up the sculpture] out there were getting a lot of heat. People, namely judges, who were a little incensed, were flaming the fuel of the populists.

– Richard Serra9

On July 16, 1981, Tilted Arc was dedicated and Richard Serra was

invited to the White House to be congratulated by President Reagan.10 At the

same time as Serra was being recognized for his “contribution to the cultural

heritage of the United States”, Judge Edward D. Re began his crusade against

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Serra’s sculpture, igniting the fire that would soon grow to engulf Tilted Arc in its

destructive flames.11

As chief judge of the United States Supreme Court of International Trade

at the Federal Plaza, Judge Re publicly scorned Serra’s piece from the moment

of its installation. He immediately sent multiple letters to various administrators of

the GSA, making his feelings on Tilted Arc known.12 One letter in particular,

dated August 18, 1981, was sent to the acting GSA Administrator for Washington

D.C. Gerald P. Carmen. Judge Re inquires what steps will be taken towards the

ultimate removal of Serra’s piece:

[Tilted Arc] is an awkward, bullying piece that may conceivably be the ugliest outdoor work of art in the city. Why despoil this spacious plaza? I will not comment on the declared purposes of the artist, except to state that the barrier indeed alters and dislocates the beauty and spaciousness, but also the utility of the plaza, which has been used for ceremonies… Since this obstruction is destructive of the plaza, and despoils a beautiful landmark, may I ask what procedures need be followed for the purpose of preventing its being permanently affixed to the plaza, and its ultimate removal.13

Judge Re’s letters were taken with a grain of salt at first. Charles LeDuc,

New York’s Assistant Regional Administrator for Public Buildings Services,

responded: “We wouldn’t consider removing the work; we see no need to.”14 Ray

Kline, another GSA Administrator, answered Judge Re in a letter dated

December 10, 1984. He explains that, at the same time as Judge Re began his

letter-writing movement, the GSA also received letters from the major art

institution officials in New York City, “commending us for sponsoring what they

viewed as major and significant achievement in public art.”15 At this point in the

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story of Tilted Arc, GSA Administrators seemed to remain steadfast in their

mission to maintain the permanence of Serra’s piece; however, it was not long

before support from the GSA for Tilted Arc began to dissolve.

Letters calling for the removal of Serra’s piece began to accumulate and

were eventually accompanied by petitions signed by various federal employees.

Judge Re exponentially increased negative publicity for Tilted Arc as he

circulated these petitions protesting the “rusted steel barrier,” garnering hatred for

the piece with each signature he collected. With Judge Re’s campaign steadily

gaining speed, additional petitions sent from the Department of Housing and

Urban Development and the Environmental Protection Agency began to flow into

the GSA.16 In 1982, barely a year after Tilted Arc had been installed, the GSA

reported Judge Re had accumulated over thirteen hundred signatures against

the sculpture’s permanence and forty-five hundred letters with appeals calling for

its removal.17 The more undesirable hype Judge Re built, the higher the pressure

mounted on the GSA to act, finally prompting a response from Washington.

Administrator Carmen assured Judge Re that he would investigate the

Judge’s claims during his next trip to New York, taking a look at the concerns

raised by the sculpture.18 This is the first time the GSA began to respond to

feedback and reconsider the appropriateness of Tilted Arc as a public artwork for

the Federal Plaza--a decisive moment in the dispute over Serra’s piece. By

creating such a commotion over Tilted Arc, Judge Re’s letter writing and

petitioning operation successfully caused the GSA to rethink the permanence of

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the sculpture. A shift in power began to take place, with Judge Re and his fellow

Tilted Arc opponents gaining more traction in the battle.

Moment III: Diamond Added to the Fire

A combination of two critical elements is required for art controversies to erupt: there must be a sense that values have been threatened, and power must be mobilized in response to do something about it.

– Steve C. Dubin19

By 1984, Serra’s sculpture was already recognized as one of, if not the

most, controversial commissions in the history of the GSA. As he continued

fanning the flames towards the destruction of Tilted Arc, Judge Re recruited allies

from various backgrounds to further his agenda. One friend in particular would

prove to be instrumental in deciding the fate of Tilted Arc: a man by the name of

William Diamond.

When President Reagan appointed William Diamond as the new GSA

Regional Administrator for New York City, the direction of the GSA and the Tilted

Arc case changed dramatically. His 1984 promotion occurred at a crucial time in

the development of the Tilted Arc case; a point at which tensions were rising, yet

the fate of Serra’s piece was still unknown.

As a colleague of Judge Edward D. Re, Diamond was already a well-

known opponent of Tilted Arc prior to his promotion. He wasted no time

propagating his attack against Serra’s sculpture when he came into office,

introducing the idea of relocation. Expanding beyond Judge Re’s work, Diamond

transformed the letters and petitions into a thoroughly aggressive public

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campaign to realize his policy that included removing Tilted Arc from the Federal

Plaza and relocating it to another, more suitable site. The local controversy

erupted into an infamous spectacle on an international level when Diamond

declared the GSA was to hold a public hearing to decide the fate of Tilted Arc.

Moment IV: Trial Over Education

Without communicating with Richard Serra directly, Diamond began

making plans for the public hearing that would decide the fate of Tilted Arc.

Convinced that the public hearing would yield a majority in favor of removing the

piece, Diamond used a 1984 interview in the New York Times to address the

public:

I want to make it very clear that this is not an attack on the esthetics of the artist… What we’re deeply concerned about is the fact that this piece, for three and a half years, has made it impossible for the public and Federal community to use the Plaza.20

After reading Diamond’s interview, Serra approached Diamond to discuss

alternative resolutions to the controversy. In an attempt to avoid the public

hearing Diamond was set on, Serra asked Diamond if it would be possible to

organize an education forum allowing the artist to “explain his art and its function

to people in the Federal Office Buildings.”21 With no explanation, Diamond

refused.22

If Diamond were truly concerned with the public’s ability to effectively use

the plaza, an educational demonstration hosted by the artist himself would have

at least been worth trying as alternative means to settle the dispute. Instead,

Diamond ignored the suggestion in favor of his public hearing, demonstrating his

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power over Serra and thus highlighting a significant moment in the evolution of

the struggle for dominance in the Tilted Arc controversy. The GSA Regional

Administrator already saw himself as superior to Serra in the debate, unwilling to

explore options other than the hearing as he felt assured that the trial would be

the only road to achieving his objective of removing Tilted Arc.

Moment V: Thoughtful Scheduling

In December of 1984, Diamond met with Donald Thalacker (Director of the

GSA’s Art-in-Architecture Program) to ask for his support in the hearing that was

scheduled to take place on February 1, 1985.23 As a longtime friend, Thalacker

agreed to back Diamond’s efforts and support his position.24 Thalacker asked

that the hearing be postponed because the Art-in-Architecture Program was

scheduled to receive the First Presidential Award for Design Excellence,

celebrating the program’s courage in supporting “many stimulating and often

controversial works of art in federal facilities across the nation” on January 30,

1985.25 The award applauded the Art-In-Architecture Program for its ability to

“encourage and recognize local talent, while giving people an opportunity to

experience outstanding works of art in their daily lives.”26

Surely Thalacker knew that the positive publicity brought by the honorable

accolade would be blotted out by the Tilted Arc scandal if the trial date had not

been rescheduled. In his support of Diamond, he must also have known that the

Tilted Arc supporters would attach their arguments to the presidential award,

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citing it’s description as evidence in favor of maintaining the permanency of the

work of art.

Diamond was able to recruit the Director of the Art-in-Architecture

Program to his side, and together, they postponed the public hearing date to

March 6, 1985. Creating a time buffer between the award ceremony and the

beginning of the trial allowed for Diamond and his allies to frame their arguments

outside of the context of the presidential award. In deferring the Tilted Arc public

hearing to a later date, Diamond, Thalacker, and the GSA as a whole exerted

their dominance over Serra and his supporters, making this a key moment in the

struggle for power. Using his precedence as GSA Regional Administrator as well

as some thoughtful scheduling, Diamond was able to subdue the momentum that

the presidential award would have otherwise given to his opponents.

Moment VI: Camouflaged Rhetoric

On December 5, 1984, Diamond instructed Paul Chistolini (GSA Assistant

Regional Administrator for Public Buildings, subordinate of Diamond) to begin

generating publicity for the trial. Using posters, flyers, and personal letters of

invitation, the GSA advertised that a public hearing would take place on March 6,

1985 to decide whether or not Tilted Arc should remain in the Federal Plaza.27

The fliers, which were posted inside the federal buildings and surrounding areas,

featured a revolutionary-style town crier urging the public to “Speak Out!”28 The

poster reads:

GSA will hold a public hearing on ways to more fully utilize the plaza on the Lafayette Street side of the building. This could include

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the relocation of the large metal sculpture known as the “Tilted Arc”. The public hearing will be held on Wednesday, March 6, 1985 at 10:00 AM at the Court of International Trade…We would like to hear from you. Call 264-4068 to get more details and schedule a time to “Speak Out”29

Several rhetorical devices are used throughout the “Speak Out!” flier,

including syntax, deus ex machina, juxtaposition, and diction; all of which subtly

persuade the audience to favor Diamond’s plans for the relocation of the

sculpture. Syntax is the use of sentence structure to influence how the reader

perceives a piece of writing, and this device is seen in the phrase “more fully

utilize the plaza,” implying that the plaza was not fully usable in its current state,

with Tilted Arc still standing. The flier also includes the device known as deus ex

machina, which is the use of an engineered solution to solve a seemingly difficult

situation.30 In the case of the “Speak Out!” flier, the GSA presents the Federal

Plaza as a problem in that it is not fully utilized, and provides a solution in the

next sentence: “the relocation of the large metal sculpture known as the ‘Tilted

Arc.’” Juxtaposing the misused Federal Plaza side-by-side with the proposition to

relocate Tilted Arc further pushes Diamond’s agenda, which is the ultimate

removal of the sculpture. Urging the reader to “speak out!” comes across as a

call to action, insisting readers to stand up against Tilted Arc. This use of diction

poses the sculpture as a problem to be solved though the engagement of the

public, rather than simply asking for their opinions, whether they are in favor of

Tilted Arc or not.

The rhetorical devices throughout the flier were used as a way to conceal

Diamond’s agenda while at the same time publicizing it. In this way, Diamond

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shows his power in the Tilted Arc controversy because he was in complete

control of the public hearing publicity. Choosing specific words and sentence

structure push readers to support the relocation of the sculpture, in the same way

that propaganda is used to convince populations of a political view. The

placement of these fliers in the federal building also show Diamond’s dominance

in the situation, having the ability to communicate with individuals who used the

Federal Plaza regularly, unlike Serra and his supporters.

In addition to the “Speak Out!” fliers, Diamond also had petitions placed in

the lobby of the Federal Building. The petition, titled “For Relocation”, incited

passers-by to submit their vote to remove Tilted Arc:

We the undersigned feel the artwork called Tilted Arc is an obstruction to the plaza and should be removed to a more suitable location. The individuals whose names are listed with an asterisk (*) find no artistic merit in the Serra artwork.31 Diamond used the “For Relocation” petitions to further prompt public

involvement in the Tilted Arc public hearing; however, the petition only allowed

for those who support the relocation to offer their opinions to the public hearing.

Tables and chairs were set up in the lobby of the Federal Building to encourage

employees to sign the “For Relocation” petitions.32 This is another example of

Diamond’s upper hand in the controversy. By propagating his own objective in

the form of a petition handed out to passers-by in the Federal Building, Diamond

is again able to communicate with the public and build his case against the

permanency of Tilted Arc.

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Diamond also had personal letters of invitation distributed throughout the

Federal Building. In the form letters, which were pre-addressed to William J.

Diamond, the undersigned stated:

Dear Mr. Diamond: I am pleased to hear that the GSA is seeking public comments on the use of the plaza at 26 Federal Plaza. I would like to express my opinion on the use of the plaza and more specifically the relocation of the artwork known as Tilted Arc.33

They then checked the appropriate box to vote for or against the

relocation of the artwork. The box labeled “I am for the relocation of the Arc” was

placed above the box labeled “I am against the Arc.” Below the voting boxes,

individuals had the opportunity to submit comments and a signature, and identify

which agency they belonged to, if any. During the public hearing, Diamond

referred to these letters he distributed simply as ‘letters’, implying that they were

spontaneous responses submitted by the public.34

The form letters addressed to Diamond are yet another illustration of his

influence over Serra and his supporters in the Tilted Arc debate. All three of

these publications were dispensed throughout the Federal Plaza and inside of

the Federal Building. Diamond’s propaganda-style advertising allowed for him to

reach the audience and proliferate his point of view, building his case against

Tilted Arc and attracting more potential testimonies for the piece’s removal. It is

worth noting that Serra did not distribute any literature regarding his sculpture

throughout the Federal Plaza.

Movement VII: Predestined Fate?

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In 1984, prior to the public hearing, Diamond ordered a cost estimate for

the piece’s removal, which amounted to approximately $86,000 and covered the

expenses of removing Tilted Arc, restoring the plaza, and reinstalling Serra’s

work to an undecided location within on hundred miles of New York City.35

At the same time, in assuming the public hearing would lead to the

sculpture’s removal, Diamond began to make preparations for its relocation.

Diamond sent letters to multiple public works departments and art organizations

asking if they would like to undertake ownership of the sculpture upon its

removal. In a letter dated December 7, 1984, to Henry R. Stern, New York City

Department of Parks Commissioner, GSA New York Regional Counsel Barbara

G. Gerwin inquired about reinstalling Tilted Arc in a public park: “All I need

immediately is a letter from the New York City Department of Parks stating that

you are interested in considering the placement of this sculpture in one of your

facilities.”36 Although the public hearing had not yet taken place and the fate of

Tilted Arc was still undecided, Diamond planned for the removal and relocation of

the sculpture. The Storm King Art Center located in Mountainville, New York, was

close to making a deal with Diamond until they learned that Richard Serra had

not been included in Diamond’s plans to sell Tilted Arc:

This letter will confirm the conversation we had earlier this month. We are most anxious to have Richard Serra’s Tilted Arc at the Art Center. We have a magnificent location for this work. However, we do not want to install any work of art against the wishes of its creator. We would accept the piece only with the artist’s consent.37

Diamond’s actions highlight an important moment in the battle for power

over Tilted Arc. By making plans for Serra’s sculpture without first consulting the

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artist himself, Diamond showed that, in his mind, the decision was already made:

Tilted Arc would be removed from the Federal Plaza. When Serra learned of

Diamond’s actions, he sent a letter to the Director of the GSA’s Art-In-

Architecture Program to remind him of Tilted Arc’s site specificity:

Since I understand that the GSA is already offering my piece for relocation, I want to make it perfectly clear that Tilted Arc was commissioned and designed for one particular site: Federal Plaza. It is a site-specific work and as such not to be relocated. To remove the work is to destroy the work.38

The measures that William Diamond took to remove and relocate Tilted

Arc from its original site showed complete disregard for the Serra’s wishes and

intentions for his sculpture. In addition to alienating the artist, Diamond flexed his

power when he assumed the outcome of the public hearing. The Acting Regional

Administrator for the GSA, the same agency that had commissioned Tilted Arc in

the first place, had premeditatedly decided the public hearing would result in the

removal of the piece. This move made by Diamond was critical in the controversy

as it set up the public hearing as a folly before it had even begun, which became

particularly important when the voting panel that would decide the fate of Tilted

Arc was chosen.

Movement VIII: A Stacked Jury

Having already demonstrated his express desire to remove Tilted Arc from

the Federal Plaza, Diamond nonetheless appointed himself as chairman of the

public hearing that began on March 6, 1985. He then appointed the four panel

members who would interpret testimonies and make the ultimate decision of

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whether or not to relocate Tilted Arc. The panel members included Gerald

Turetsky (acting Deputy Regional Administrator of the GSA, directly under

Diamond), Paul Chistolini (acting Assistant Regional Administrator for Public

Buildings Services, also a subordinate of Diamond and the man who launched

the advertising of the public hearing), Thomas Lewin (Senior Partner at the New

York law firm of Simpson, Thatcher, Bartlett, a prior acquaintance of Diamond’s),

and Michael Findlay (VP of Christie’s Auction House, invited by Diamond’s wife

in a letter dated February 15).39 40

Diamond’s decision to assume control of the public hearing caused many

to question the propriety of the event, including Senator Howard M. Metzenbaum

who observed:

…The convening of a hearing by an administrator who, according to news accounts, has already made up his mind about art, appears to be a breach of proper procedures and violative of the explicit agreement with the artist as to the display of the sculpture.41

Regardless of Senator Metenzenbaum’s concerns, Diamond continued

with the hearing as he had planned, acting as both prosecutor and judge in the

case of Tilted Arc and making a charade of due process. This was the ultimate

expression of his power, and a decisive move both figuratively and literally, as

Diamond placed himself in complete control of who would vote on the

permanency of Serra’s sculpture.

Moment IX: Arc On Trial

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Beginning on March 6, 1985, the Tilted Arc public hearing spanned the

length of three days, with testimonies from 180 individuals including Richard

Serra and William Diamond themselves. In a press release issued the day before

the trial commenced, on March 5, 1985, Diamond asserted that the panel would

not make an aesthetic judgment regarding the value of Tilted Arc, nor would it

“recommend that any precedent be established that would affect any other piece

of art.”42 Instead, Diamond connected the Tilted Arc controversy to the excessive

government-spending problem:

The United States Government paid $175,000 for the Richard Serra sculpture. We strongly believe that the public has a right to tell us how they feel about the way in which their government spends their money. We in Government have the responsibility to provide that opportunity. The fact that we are holding this hearing is evidence of our good faith in this effort. We trust that today’s proceedings will further encourage dialogue between artists and their audience.43

Diamond’s news statement includes several rhetorical devices similar to

those exhibited in the advertising for the public hearing. The diction and syntax

Diamond uses paints the picture that Serra was paid $175,000 for Tilted Arc,

when, in fact, the fee included only the cost of materials and labor. Serra actually

received no profit on this commission.44 This press release was the first time that

Diamond brought up the issue of government spending, seemingly as a guise for

the true purpose of the hearing. Had he been concerned with taxpayer’s dollars

being exploited, one would think that the advertisements and petitions he’d

distributed would have noted it as an issue in the case rather than just the

misuse of space in the Federal Plaza. Nevertheless, the hearing commenced the

next day.

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Artist Richard Serra started the hearing off with an opening statement in

which he described “some background information about what I do, why I do it,

and how I build my sculpture, what site-specific sculpture means and why site-

specificity and permanence are inseparable.”45 Serra went on to explain the GSA

Art-In-Architecture Program and specifically the Tilted Arc commission. He

argued that he undertook the commission and moved forward in the process, but

not before raising the issue of the permanency of his work:

I accepted the commission only after I had been assured repeatedly that my work would be, as stated in the GSA manual, incorporated as an ‘integral part of the total architectural design.’ I was told that the GSA did not want to have it any other way.46 He concluded by explaining the implications of the hearing, noting that the

removal of the sculpture would simultaneously be its destruction.

After three days, 122 individuals testified for keeping the sculpture

installed at the Federal Plaza, and 58 testified for its removal. The hearing came

to a close and on April 10, 1985. Despite the testimonies to keep Tilted Arc

outnumbering testimonies to remove it two to one, Diamond’s panel voted four to

one, suggesting the removal of Tilted Arc from the Federal Plaza. This decision

must reflect the fact that the panel consisted of Diamond’s associates or

subordinates, further exhibiting his decisive power in this case. Their

recommendation was then sent to Washington, and the ultimate decision on the

case was now left to Dwight Ink, the Acting Head of GSA in Washington.

Moment X: The Final Decision

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With no precedents to refer to, the Tilted Arc controversy continued in the

same ad hoc manner in which it had grown. Ink received an undated memo from

the GSA’s general counsel, Allie B. Latimer, who determined that Ink had the

ultimate power in the decision, and instructed him “not to give any special weight

to the recommendation/vote of the panel” because it did not follow legal

guidelines for a hearing.47 Ink also received a letter from two senators and six

representatives stating “regardless of one’s views on abstract art, or this

sculpture in particular, the preemptive move to destroy this work presents an

alarming precedent for subjective criticism and disregard for due process.”48

Ink was being pressured from both sides of the Tilted Arc case, including a

letter from Diamond suggesting that Ink “correct a mistake by restoring a status

quo—in this case, the artwork in the first place, e.g. the open plaza itself.”49

Shortly before Ink left office in June of 1985, he made the final decision to

remove Tilted Arc, ruling in favor to transfer the sculpture to another location.50

After receiving legal counsel from multiple advisors, Ink chose to ignore the

illegality of the public hearing and remove Tilted Arc. This was a decisive

moment in the battle for power because it shows the power that Ink and Diamond

had over their opponents when the decision was made to destroy Tilted Arc.

Moment XI: ‘Artist’ Does Not Mean ‘Owner’

Over the next few years, artist Richard Serra continued to fight for the

permanence of his sculpture in the Federal Plaza. Pursuing legal measures,

Serra took his case to court in December of 1986 with his ‘Serra v. U.S. General

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Services Administration’ case.51 Serra argued that GSA Administrators Diamond

and Ink had violated his rights under the free speech clause of the First

Amendment, the due process clause of the Fifth Amendment, as well as federal

trademark and copyright laws. In a decision handed down on August 31, 1987,

Judge Milton Pollock dismissed Serra’s claims against Diamond and Ink

because, as federal employees that represented the government, they qualified

for immunity.52 He further ruled that the decision to remove Tilted Arc was a

“content-neutral determination made to further significant government interests

and that the hearing provided all the process that was due.”53 Though Serra

accepted Judge Pollock’s first ruling, he appealed the second decision and

moved forward in the legal process.

Challenging the rejection of his free expression and due process claims,

Serra brought his case to appellate court on December 15, 1987. The court was

presided over by a three-judge panel that included a former legal counsel to the

Museum of Modern Art.54 The appellate court concluded that Serra’s First

Amendments had not been violated:

Serra relinquished his own speech rights in the sculpture when he voluntarily sold it to the GSA; if he wished to retain some degree of control as to the duration and location of the display of his work, he had the opportunity to bargain for such rights in making the contract for sale of his work.55 Interestingly enough, this was the first time in the history of Tilted Arc that

the original commissioning contract had been re-examined as a means to

decipher the fate of the sculpture. The reference to the GSA contract signed by

Serra brought back his memory of the process:

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I accepted the commission only after I had been assured repeatedly that my work would be, as stated in the GSA manual, incorporated as an ‘integral part of the total architectural design.’ I was told that the GSA did not want to have it any other way.56

Serra argued that he had been assured by Thalacker, director of the Art-

In-Architecture Program, of the GSA’s commitment to Tilted Arc’s longevity. The

artist recalled a conversation early in the project in which Thalacker guaranteed

him that,

You get one chance in your lifetime to build one permanent work for one Federal building. There is one permanent Oldenburg, one permanent Segal, one permanent Stella, and one permanent Calder, and this is your opportunity to build a permanent work for a federal site in America.57 According to Serra’s accounts, the GSA had promised to uphold the

permanency of his site-specific sculpture. Upon examining the contract

constructed by the GSA, which Serra signed in 1979 prior to beginning the

design process, its clear that a disconnect between spoken promises and written

consent occurred. The contract for the commission included a release stating

that Serra would concede ownership of his work:

All designs, sketches, and the work produced under this Agreement for which payment is made under the provisions of this contract shall be the property of the United States of America. All such items may be conveyed by the Contracting Officer to the National Collection of Fine Arts—Smithsonian Institution for exhibition purposes and permanent safekeeping.58

The purpose of the release was to name the GSA and ultimately the

United States Government as the rightful owner of Tilted Arc. The contract did

not specifically grant the government to remove a commissioned sculpture, nor

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did it specifically forbid the removal of such a sculpture; however, in granting

ownership of the sculpture to the United States, the right to make the decision to

keep or to remove Tilted Arc was also given to the United States. Dwight Ink,

Head of GSA, was acting on behalf of the United States as a Federal employee

when he made the decision to remove Tilted Arc from the Federal Plaza;

therefore, no breach of contract had occurred.

In a desperate attempt to save Tilted Arc from eminent destruction,

Richard Serra tried to invoke the Berne Convention for the Protection of Literary

and Artistic Works. U.S. Congress signed the Berne Convention in the fall of

1988, which would go into effect on March 1, 1989.59 The treaty is an

international agreement governing copyright that establishes a system of equal

treatment that internationalized copyright amongst signatories in order to protect

the rights of artists in their works.60 Citing the Berne Convention as a means of

protection, Serra tried to circumvent the contract stipulation ceding ownership to

the United States. The artist argued that the release included in the contract

commission placed an unfair priority of “property rights over free expression and

the moral rights of artists.”61

After extensive analysis of the treaty, attempts at reconciling ownership

proved unsuccessful. Even Serra’s own attorneys concluded that the Berne

Convention laws, as interpreted by the United States Congress, were inadequate

to protect his work.62 Because of this, Serra lost the case that he built on the

premise of contract infringement. Serra’s efforts to save Tilted Arc were finally

overcome in December of 1988 when the U.S. Court of Appeals affirmed the

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district court’s ruling to dismiss Serra’s suit against the U.S. General Services

Administration.

Unbeknownst to Serra, signing the commission contract was the first

important moment in the saga of his sculpture because it legally excluded the

artist from any proprietary rights of ownership he may have had over Tilted Arc.

The GSA’s promises to uphold Tilted Arc’s site-specificity held no legal bearing

after the contract had been signed by Serra, for the fate of the sculpture was up

to the discretion of the United States from that point forward. Had the Tilted Arc

been brought into questioning prior to Serra’s appeal, any judge would have

agreed that the terms of the contract bestowed full power over the sculpture to

the United States and any Federal employee representing the U.S. Ironically,

examining the contract earlier in the Tilted Arc story could have avoided the

controversy entirely. Agreeing to the contract’s terms of the commission

essentially relinquished any power that Serra could have had in the Tilted Arc

controversy before it even began—the ultimate power play by the U.S. General

Services Administration.

Moment XII: The Destruction of Tilted Arc

Once the decision to remove Tilted Arc from the Federal Plaza had finally

settled and no further appeals were made, the process of relocation began.

Overtime work crews labored throughout the night of March 15, 1989, to

dismantle Tilted Arc. The sculpture was sawed into multiple pieces that were

torched before being carted off to a storage facility in Brooklyn.63 Once Tilted Arc

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had been reduced to raw materials, Diamond announced, “This is a day for the

people to rejoice, because now the plaza returns rightfully to the people.”64

Although Diamond had repeatedly stated his intent to relocate Tilted Arc to

an alternate site, his plans were never realized. It is Serra’s wish that Tilted Arc

will never be displayed anywhere other than its original location. Therefore,

although the work is safe in storage, it will likely never again be erected. With the

destruction of Tilted Arc came the final decisive moment in the dispute: Diamond

and his supporters won the battle for power, and the controversial saga of Tilted

Arc came to a definitive close.

As one of the most notorious public art controversies in the history of the

law, Tilted Arc challenged the power dynamics that existed in the social and

ideological atmosphere of public art in the 1980s. Although Serra had ceded his

rights over Tilted Arc upon signing the contract for its commission in the earliest

stage of the debate, the terms of the contract were not examined until the very

last decisive moment in the case. This allowed for the controversy over Tilted Arc

to evolve organically, exposing the struggle for power among self-interested

factions claiming to represent public opinion.

The decisive moments of the Tilted Arc case reveal that the administrators

who commissioned the artwork held the upper hand over Tilted Arc from the

moment of its installation until the moment of its destruction. Their power

stemmed from simply holding a high position on the General Services

Administration food chain, and they exerted this power over Serra and his

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sculpture in order to accomplish their goals. The effects of the Tilted Arc decision

were felt years after the sculpture was destroyed:

The ripple effect of the Tilted Arc controversy was great. By the time I became director of New York City’s Percent for Art Program in 1990, there had been a reevaluation of public art in the United States. “Safe-guards” were put into place to avoid the excruciating public display everyone heard about in New York City. --Tom Finkelpearl 65

The power struggle of the Tilted Arc case is indicative of a greater issue

that exists public art involving the freedom of expression and the limits of state-

sponsored culture. In the Tilted Arc controversy and the 1980s in general, the

opinions of U.S. GSA Administrators took priority over the wishes and intentions

of not only the artist, but also over the testimonies of the public. The decision to

remove Tilted Arc placed more at stake than just the sculpture alone; it was a

defining moment for the future of public art, setting a “dangerous precedent” that

pointed towards the destruction of public art or the end of the GSA’s Art-In-

Architecture program.66 While that did not occur, what did happen as a result of

Tilted Arc seemed to be a degree of self-censorship among artists and arts

administrators:

The nineties have been a decade in which the arts community has licked its wounds it received during the eighties, but not quite recovered from them… The reality is that nineties public art is much less challenging to the public—more decorative and in the background.

--Daniel Grant 67

After the Tilted Arc episode, artists and arts administrators toned down the

provocative messages that proliferated public art in the 1980s. This shifting

paradigm in public art led to a refinement in public policy: 1990 saw the

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enactment of the Visual Artists Rights Act (VARA), an amendment to the

Copyright Act of 1976. This act provides “moral rights” to the artist so that they

have rights to attribution and integrity when it comes to paintings, drawings, and

sculpture regardless of any subsequent physical ownership of the work itself.68

The GSA’s Art-In-Architecture Program also revamped their selection process to

become more thoughtful and even tentative, making outreach efforts to “local

communities which are to be recipients of the art.”69 In an effort to make public

art more palatable, the GSA adopted a policy in which the voices of the public

played a larger role in Art-In-Architecture commissions.

Yet it is important to reach a delicate balance between artists, audience

members, and arts administrators. All must commit to having open, honest, and

ongoing dialogues; commissions of public art should not be reduced to a

popularity contest, which is not fully indicative of a work’s strength as a piece of

public art. Harriet F. Senie reminds us, “controversy is loud and appreciation is

often silent and immeasurable.”70

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End Notes

1 Miles Malcolm, Art for Public Places: Critical Essays. (Winchester: Winchester 2 Grant H. Kester, “Rhetorical Questions: The Alternative Arts Sector and the Imaginary Public,” in Art, Activism, & Oppositionality: Essays from Afterimage, ed. Grant Kester (Durham: Duke University Press), 103. 3 Harriet F. Senie, The Tilted Arc Controversy: Dangerous Precedent? (Minneapolis: University of Minnesota Press, 2002), 27. 4 Caroline Levine, “The Paradox of Public Art: Democratic Space, the Avant-Garde, and Richard Serra’s Tilted Arc,” Philosophy & Geography 5, no. 1 (2002): 52. 5 Harriet F. Senie, 23. 6 Harriet F. Senie, 23. 7 Michael Weizenbach, “Ex-GSA Director Washes Hands of Rusty Sculpture,” Washington Times, June 11, 1985. 8 Michael Weizenbach. 9 Harriet F. Senie, 25. 10 Harriet F. Senie, 26. 11 Michael Kammen, 197. 12 Clara Weyergraf-Serra and Martha Bushkirk, The Destruction of Tilted Arc: Documents. (Cambridge: MIT Press, 1991), 5. 13 Weyergraf-Serra and Bushkirk, 26. 14 Grace Glueck, “Serra Work Stirs Downtown Protest,” New York Times, September 25, 1981. 15 Weyergraf-Serra and Bushkirk, 30. 16 Harriet F. Senie, 26. 17 Caroline Levine, 53. 18 Harriet F. Senie, 26. 19 Harriet F. Senie, 21. 20 Susan Heller Anderson and David W. Dunlap, “Arc Under Scrutiny,” New York Times (New York, NY), Dec. 29, 1984. 21 U.S. District Court, Southern District of New York, “Richard Serra, Plaintiff v. United States General Services Administration,” (United States Court of Appeals, Second Circuit: Docket No. 86 Civ. 9656, J. Pollack presiding), 21n79. 22 Harriet F. Senie, 28. 23 Martha Bushkirk, “Tilted Arc In and Out of Context” in Intersection/Richard Serra, ed. Martin Schwander and Evan Keller (Dusseldorf: Richter Verlag, 1996), 82. 24 Robert Storr, “Tilted Arc: Enemy of the People?” in Art in the Public Interest, ed. By Arlene Raven (Ann Arbor: University of Michigan Research Press, 1989), 280. 25 Harriet F. Senie, 28. 26 Weyergraf-Serra and Bushkirk, 43. 27 Richard Serra, 41.

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28 Caroline Levine, “The Paradox of Public Art: Democratic Space, the Avant-Garde, and Richard Serra’s Tilted Arc,” Philosophy & Geography 5, no. 1 (2002): 58. 29 Harriet F. Senie, 29. 30 Louis E. Gloverfield, Language, Rhetoric, and Idea: A Unified Approach to Composition, (Columbus, OH: C. E. Merrill Books, 1967), 26. 31 Weyergraf-Serra and Bushkirk, 48. 32 Weyergraf-Serra and Bushkirk, 7. 33 Weyergraf-Serra and Bushkirk, 49. 34 Harriet F. Senie, 28. 35 Christina Michalos, "Murdering Art: Destruction of Art Works and Artists' Moral Rights" in The Trials of Art, ed. Daniel McClean (London: Ridinghouse, 2007), 178. 36 Weyergraf-Serra and Bushkirk, 33. 37 Weyergraf-Serra and Bushkirk, 40. 38 Weyergraf-Serra and Bushkirk, 38. 39 Weyergraf-Serra and Bushkirk, 1. 40 Harriet F. Senie, 28. 41 Weyergraf-Serra and Bushkirk, 7. 42 U.S. General Services Administration, Region 2 Press Release, R2-85-M004, dated March 5, 1985. 43 U.S. General Services Administration, Region 2 Press Release. 44 Martha Bushkirk, 81. 45 Weyergraf-Serra and Bushkirk, 65. 46 Richard Serra, “Art and the Law: Suppression and Liberty of the Tilted Arc Controversy,” Cardozo Arts & Entertainment Law Journal 19, no. 39 (2001): 40. 47 Harriet F. Senie, 30. 48 Weyergraf-Serra and Bushkirk, 150. 49 Weyergraf-Serra and Bushkirk, 149. 50 Harriet F. Senie, 32. 51 U.S. District Court, “Richard Serra, Plaintiff v. United States General Services Administration.” 52 U.S. District Court, “Richard Serra, Plaintiff v. United States General Services Administration.” 53 U.S. District Court, “Richard Serra, Plaintiff v. United States General Services Administration.” 54 Harriet F. Senie, 115. 55 Barbra Hoffman, “Law for Art’s Sake in the Public Realm,” Critical Inquiry 17, no. 3 (Spring 1991): 544. 56 Richard Serra, “Art and the Law: Suppression and Liberty of the Tilted Arc Controversy,” Cardozo Arts & Entertainment Law Journal 19, no. 39 (2001): 40. 57 U.S. Court of Appeals for the Second Circuit, Docket No. 87-6231, 87-6251, January 26, 1988.

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58 Dwight Ink, “Decision on the ‘Tilted Arc’” (U.S. General Services Administration Art-In-Architecture Program, Attachment J: Contract for the Tilted Arc, Washington, D.C., May 31, 1985, unpublished): 6. 59 World Intellectual Property Organization (WIPO), “Berne Convention for the Protection of Literary and Artistic Works,” International Copyright Agreement, WIPO-Administered Treaty, originally instated 1886; revised 1989. 60 WIPO, “Berne Convention for the Protection of Literary and Artistic Works.” 61 Richard Serra, 40. 62 Richard Serra, 40. 63 Weyergraf-Serra and Bushkirk, 3. 64 Weyergraf-Serra and Bushkirk, 3. 65 Cher Krause Knight, Public Art: Theory, Practice, and Populism (Oxford: Blackwell Publishing, 2008), 121. 66 Harriet F. Senie, 151. 67 Harriet F. Senie, 147. 68 Judith Bresler, “Serra v. USA and its Aftermath: Mandate for Moral Rights in America?” in Trials of Art, ed. Daniel McClean (London: Ridinghouse, 2007), 196. 69 Cher Krause Knight, 14. 70 Harriet F. Senie, Contemporary Public Sculpture: Tradition, Transformation, and Controversy (New York: Oxford University Press, 1992), 230.

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