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Floyd Abrams, Susan Buckley, Cahill, Gordon & Reindel, New York City, for Plaintiff.

Michael D. Hess, Leonard Koerner, City of New York Law Dept., New York City, for Defendants.

Opinion and Order

GERSHON, District Judge

The Mayor of the City of New York has decided that a number of works in the Brooklyn Museum's currently showing temporary exhibit "Sensation: Young British Artists from the Saatchi Collection" are "sick" and "disgusting" and, in particular, that one work, a painting entitled "The Holy Virgin Mary" by Chris Ofili, is offensive to Catholics and is an attack on religion. As a result, the City has withheld funds already appropriated to the Museum for operating expenses and maintenance and, in a suit filed in New York State Supreme Court two days after the Museum filed its suit in this court, seeks to eject the Museum from the City-owned land and building in which the Museum's collections have been housed for over one hundred years.

The Museum seeks a preliminary injunction barring the imposition of penalties by the Mayor and the City for the Museum's exercise of its First Amendment rights. The City and the Mayor move to dismiss the Museum's suit in this court, insofar as it seeks injunctive and declaratory relief, on the ground that this court must abstain from exercising jurisdiction in favor of the New York court action, in which, they argue, the Museum may assert, by way of defense and counterclaim, its First Amendment claims. For the reasons that follow, defendants' motion is denied, and plaintiff's motion is granted.

BACKGROUND

An examination of the history of the Brooklyn Museum and its relationship to the City of New York will illuminate the current controversy.

I. The History of the Brooklyn Museum

The Brooklyn Museum traces its origin to the Brooklyn Apprentices' Library, founded in 1823, whose book collection was first permanently housed in a Brooklyn Heights building constructed in 1825, reportedly after General Lafayette laid its cornerstone on the Fourth of July. A successor entity, the Brooklyn Institute, incorporated in 1843, expanded its holdings of books, natural history specimens and, to a lesser extent, art objects during the ensuing decades of the nineteenth century. By the late 1880's, prominent citizens and public figures of the then independent City of Brooklyn conceived an ambitious plan to vastly expand the Brooklyn Institute's collections in a mammoth new building, which would rival the combined collections of New York City's Metropolitan Museum of Art and Museum of Natural History.

The City of New York had already established in the 1870's a relationship with the Metropolitan Museum of Art and the Museum of Natural History that would serve as a prototype for the City's relationship with other designated cultural institutions, and for the relationship of the Brooklyn Museum with the cities of Brooklyn and later New York. That relationship is described in the official "Procedures Manual for New York City's Designated Cultural Institutions," at 3, as "joint partnerships between the City and a group of private citizens." The Procedures Manual describes that state legislation was passed to incorporate those two museums, authorizing the City to construct the museums' facilities and to lease those facilities and the City-owned parkland on which they were located to the new corporations. The museums, in turn, "became responsible for programming the facilit[ies] and acquiring and exhibiting [their] collections. The leases . . . contemplate that the City will maintain the building[s] while the [museums oversee] the display of [their] collection[s] to the general public."

In keeping with this historical precedent, the New York State Legislature in 1889 authorized the City of Brooklyn to reserve a portion of Prospect Park as "building sites for museums of art and science and libraries," and to lease such sites at nominal rent for up to one hundred years to corporations "created for educational purposes," provided that "such museums and libraries shall at all reasonable times be free, open and accessible to the public and private schools of the said city, and open and accessible to the general public on such terms of admission as the said mayor and commissioners shall approve. . . ." L. 1889, c. 372, § 2.

The Brooklyn Institute was reorganized into the Brooklyn Institute of Arts and Sciences, the formal name of the plaintiff in this action (now known as the "Brooklyn Museum of Art" or "Brooklyn Museum" and sometimes referred to here as the "Museum"), by the New York State Legislature in 1890. The Act formally incorporating the Brooklyn Institute of Arts and Sciences, L. 1890, c. 172, designated by name approximately fifty private individuals as the original trustees of the Institute, and authorized the Institute to adopt its own constitution, bylaws, and all appropriate rules and regulations for its self-governance. Id. §§ 4, 5. Subsequent laws added public officials as ex officio members of the Board of Trustees, including the Mayor, Comptroller, Park Commissioner and Borough President. L. 1893, c. 579, as amended, L. 1934, c. 87 and L. 1949, c. 127. The 1890 Act further provides:

Section 2. The purposes of said corporation shall be the establishment and maintenance of museums and libraries of art and science, the encouragement of the study of the arts and sciences and their application to the practical wants of man, and the advancement of knowledge in science and art, and in general to provide the means for popular instruction and enjoyment through its collections, libraries and lectures.

Section 3. The museums and libraries of said corporation shall be open and free to the public and private schools of said city, at all reasonable times, and open to the general public on such terms of admission as shall be approved by the mayor and park commission of said city.

On December 23, 1893, as authorized by state law, the City of Brooklyn leased the land to the Institute for a term of one hundred years (the "Lease"), tracking the language of the 1889 Act as to he use of the property and the requirements for access by schools and the general public. The Lease further provides that "if and when such museums . . . shall cease to be maintained according to the true intent and meaning of said act, and of this lease, then this lease shall be forfeited, and the said lands, and buildings thereon erected shall revert to the City of Brooklyn." Pursuant to other Acts of the New York State Legislature (L. 1891, c. 89; L. 1894, c. 577; L. 1896, c. 406), the City of Brooklyn funded construction of a building on the site designed by the noted architectural firm of McKim, Mead & White (although only a fraction of the original ambitious building plan was ever completed), to be leased to the Institute.

Upon completion of construction of a wing of the new building, the City of Brooklyn entered into a building lease and contract (the "Contract") with the Institute, for a term coextensive with the Lease, to house the Institute's collections. The City of New York is the successor to the City of Brooklyn under the Lease and the Contract. The parties agree that, upon the expiration of the original term of the Lease agreement in December 1993, the Museum remained a tenant in possession of the land and the building on the same terms and conditions as contained in the Lease and Contract.

The Contract provides that:

The Brooklyn Institute of Arts and Sciences . . . shall place on exhibition in said Museum Building collections of paintings and other works of art and collections and books representing or illustrating each and all of the Departments of the arts and sciences named in the constitution of said Institute, and shall cause to be properly arranged, labelled and catalogued all such collections and books as may be open to public exhibition or for public use, for the instruction and benefit of the residents of Brooklyn or the general public.

The Contract is unequivocal that the City has no ownership rights with respect to any of the collections in the Museum. It provides:

That the collections of books and other objects in art and sciences placed in the Museum Building for purposes of exhibition, instruction, or to enable the Brooklyn Institute of Arts and Sciences to carry out its purposes as authorized in its charter, shall continue to be and shall remain absolutely the property of the [Institute], and that neither the [Mayor nor the City of Brooklyn] by reason of said property being placed in said building or continuance therein, have any title, property or interest therein.

The Museum established, as a branch, the first children's museum in the world in 1899. Throughout the first decades of this century, the Museum's collections greatly expanded, with Departments of Fine Arts, Natural Sciences, and a newly-established Department of Ethnology. The Museum decided in the 1930's to focus on its collections of fine art and cultural history, and to abandon its mission as a science museum. The Museum's natural history specimens were sent to other institutions. In 1934, the State legislature amended the description of the Institute's purpose quoted above, by adding reference to establishment and maintenance of "botanical gardens" and the provision of popular instruction and enjoyment through "musical and other performances." L. 1934, c. 87. In the 1970's, various components of the Brooklyn Institute of Arts and Sciences became independent institutions, including the Brooklyn Children's Museum, the Brooklyn Academy of Music and the Brooklyn Botanic Garden.

The Museum today describes itself as having the second largest art collection in the United States, with approximately one and a half million objects. Its collections are divided into the following departments: (1) Egyptian, classical and ancient middle eastern art; (2) painting and sculpture; (3) arts of Africa, the Pacific and the Americas; (4) Asian art; (5) decorative arts, costumes and textiles; and (6) prints, drawings and photography. The Museum also has two research libraries and an archive. The Museum's permanent collection includes secular as well as numerous non-secular objects. Materials submitted to the court confirm the following description by the Museum's Chief Curator: "The collections include Catholic and Protestant religious works of art, Jewish religious objects, objects representing many Eastern religions, African spiritual objects, native American tribal objects, pre-Colombian objects, Islamic religious objects, as well as religious objects from numerous other cultures." These include many paintings and other objects which are reverential of the Madonna and other figures and symbols important to Christianity.

In addition to displaying works from its permanent collection to the public, the Museum regularly mounts temporary exhibits, and has done so throughout its history. Some of these exhibits involve well-known artists and their works. Others display little-known artists or obscure or esoteric works. The current temporary exhibit, "Sensation: Young British Artists from the Saatchi Collection" (the "Sensation Exhibit" or the "Exhibit") is not the first controversial exhibit the Museum has mounted. Past controversial exhibits include art and performance exhibits in 1990 and 1991, respectively entitled, "The Play of the Unmentionable: The Brooklyn Museum Collection," and "Too Shocking to Show," which, to judge from contemporaneous news articles and materials prepared by the Museum, were provocative responses to protests over exhibits and performances at other institutions. Neither party to this litigation is aware of any past objection by the City to any Museum exhibit, or any prior effort by the City to stop an exhibit because of the content of any works included.

Undisputed documentary evidence establishes the Museum's commitment, throughout its history and continuing to date, to extensive educational programs for children, teachers, families, members of surrounding communities, and the general public. The Museum's Education Division serves over fifty thousand children and thirty-five thousand adults each year, with a staff of twenty-six full-time employees, nine full-time paid interns, thirty-five part-time instructors, and forty volunteer tour guides.

II. City Funding of The Brooklyn Museum

The Contract provides that "[the City] shall pay to the [Institute] each year such sum as may be necessary for the maintenance of said Museum Building, or as may be authorized by law or be apportioned or appropriated by [the City]." The Contract specifically defines "maintenance" to include: (1) repairs and alterations; (2) fuel; (3) waste removal; (4) wages of employees providing essential maintenance, custodial, security and other basic services; (5) cleaning and general care; (6) tools and supplies; and (7) insurance for the building, furniture and fixtures.

Consistent with the applicable statutes, the Lease, and the Contract, as well as with historical practices, the City's Procedures Manual specifies that public funds are provided to designated cultural institutions to help meet costs for general maintenance, security and energy, and in some instances to support education programs. City funds generally "are not used for direct curatorial or artistic services." Procedures Manual at 12. The City also approves certain capital expenditures as part of its program "to protect and ensure the continued existence of New York City's most precious assets, its cultural institutions, for local communities, the general public and the artistic community." Id. at 14. The City's Fiscal Year 2000 appropriation of approximately $5.7 million to the Museum specifies that the funding contributes to "maintenance, security, administration, curatorial, educational services and energy costs." The City was not asked to fund the controversial exhibit giving rise to this action. The City's Fiscal Year 2000 appropriation to the Brooklyn Children's Museum is approximately $1.6 million.

Nothing in the City's lengthy annual final report and budget request form, which each institution must supply, asks for detailed information concerning the individual works in exhibits. Instead, the form is designed to determine, among other things: the general purposes and plans of the institution; "brief descriptions" (emphasis in original) of immediate past and future programming; accomplishments and plans for educational programs for children, educators and the general public; and detailed financial information.

III. The Controversy over the Sensation Exhibit

The Sensation Exhibit was first shown in 1997 at the Royal Academy of Art in London, where it drew record crowds for a contemporary art exhibit and generated controversy and some protest demonstrations. The Brooklyn Museum's Director, Arnold Lehman, viewed the Exhibit in London and decided to attempt to bring it to New York after its scheduled showing at a museum in Berlin. The Exhibit includes approximately ninety works of some forty contemporary British artists, a number of whom have received recognition by the artistic community. Chris Ofili, Damien Hirst, and Rachel Whiteread, for example, have received the Turner Award from the Tate Gallery. After being shown in Brooklyn, the Exhibit is scheduled to be shown at the National Gallery of Australia, and the Toyota City Museum outside of Tokyo.

Mr. Lehman's efforts to bring the Exhibit to Brooklyn continued through 1998, and plans were finalized in April 1999. Mr. Lehman, starting in 1998, kept the Museum's Board of Trustees informed of his efforts, and of the Exhibit's controversial nature. The Mayor of the City is an ex officio member of the Board, but his representative did not attend certain meetings at which the Exhibit was discussed, although minutes of the meetings were sent to him. The Commissioner of the City's Department of Cultural Affairs, Schuyler Chapin, also is an ex officio member of the Board of Trustees. His designated representative did attend meetings regularly and receive minutes of Board meetings. On or about March 10, 1999, Mr. Lehman gave Commissioner Chapin a copy of the catalog for the Exhibit and discussed its content. The catalog includes photographs and descriptions of virtually all of the works in the Exhibit, including every work that the City now finds objectionable. For example, it contains a full page color photograph of "The Holy Virgin Mary" and a description of the materials of which it is made, including elephant dung. On or about April 6, 1999, Mr. Lehman sent letters to members of the Board of Trustees, including Commissioner Chapin and other public officials, stating that the Exhibit was controversial, and he set forth the Museum's plans to charge an admission fee for the Exhibit and to require that all children be accompanied by an adult. The letters specifically described the work of the artist Damien Hirst, recognized "for his sections of various animals (sharks, lambs, etc.) individually preserved and presented in sealed, formaldehyde-filled glass containers." The Museum issued a similar press release on about the same date. A New York Times article on April 8, 1999, entitled "British Outrage Heads for Brooklyn," described reactions of shock and condemnation, together with protests, that the Exhibit had generated in London, as well as accusations by detractors that the Exhibit promoted the commercial interests of Charles Saatchi, owner of all of the works in the Exhibit. The article described some of the controversial works in the Exhibit, including that of Hirst.

Commissioner Chapin, in a letter dated April 14, thanked Mr. Lehman for his "fascinating letter" about the Exhibit, which, he wrote, seemed designed to "shake up New York's art world." Commissioner Chapin voiced no objection to the Museum's planned admission policies and promised to convey "any thoughts about funding he might have." There is no evidence that the Mayor himself was personally aware of the specific contents of the Exhibit.

The Exhibit was scheduled to open to the public at the Museum on October 2, 1999. City officials first began raising objections to the Exhibit on September 22. On that date, Commissioner Chapin, stating that he was acting on behalf of the Mayor, advised Mr. Lehman by telephone that the City would terminate all funding to the Museum unless it canceled the Exhibit. Commissioner Chapin specifically referred to the fact that the Mayor found objectionable "The Holy Virgin Mary" by Chris Ofili. (All of the five Ofili works in the Exhibit use elephant dung together with other materials. In addition, on the painting entitled "The Holy Virgin Mary," there are small photographs of buttocks and female genitalia scattered on the background.) The Mayor explained his position publicly that day, taking particular exception to "The Holy Virgin Mary." The Mayor stated that this work "offends me" and "is sick," and he explained his decision to terminate City funding as follows:

You don't have a right to a government subsidy to desecrate someone else's religion. And therefore we will do everything that we can to remove funding from the [Museum] until the director comes to his senses. And realizes that if you are a government subsidized enterprise then you can't do things that desecrate the most personal and deeply held views of the people in society.

The Mayor also referred to a Hirst work of two pigs in formaldehyde as "sick stuff" to be exhibited in an art museum.

The following day, the Mayor accused the Museum of violating the Lease by mounting an exhibit which was inaccessible to schoolchildren and by failing to obtain his permission to restrict access to the Exhibit, which he made clear he would not give because of his view that taxpayer-funded property should not be used to "desecrate religion" or "do things that are disgusting with regard to animals." In a letter from New York City Corporation Counsel Michael D. Hess to Mr. Lehman, dated September 23, 1999, Mr. Hess stated that "[t]he Mayor will not approve a modification of the Contract to allow [the Museum] to restrict admission to the museum. In light of the fact that [the Museum] has already determined that it would be inappropriate for those under 17 years of age to be admitted to the exhibit without adult supervision (a determination with which the City does not disagree), [the Museum] cannot proceed with the exhibit as planned."

The Mayor and other senior City officials continued, and escalated, their attacks on the Exhibit and their threats to the Museum, vowing to cut off all funding, including construction funding, to seek to replace the Board of Trustees, to cancel the Lease, and to assume possession of the Museum building, unless the Exhibit were canceled. The Mayor asserted on September 24 that he would not "have any compunction about trying to put them out of business, meaning the board." On September 28, the Mayor publicly stated that taxpayer dollars should not "be used to support the desecration of important national or religious symbol, of any religion." A City press release that day denounced "an exhibit which besmirches religion and is an insult to the community." The press release announced that, in response to the Museum Board's formal decision that day to proceed with the Exhibit, the City would end its funding of the Museum immediately. In his deposition, Deputy Mayor Joseph Lhota acknowledged that he had earlier told the Chairman of the Museum's Board of Trustees, Robert Rubin, that all City funding to the Museum would be canceled unless the Museum agreed to remove "The Holy Virgin Mary" from the Exhibit.

In response to the City's threats, including explicit statements by senior officials that the City would withhold its monthly payment of $497,554 due on October 1, 1999, the Museum commenced this action against the City and the Mayor on September 28, 1999, pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief, to prevent the defendants from punishing or retaliating against the Museum for displaying the Exhibit, in violation of the Museum's rights under the First and Fourteenth Amendments, including cutting off funding, terminating the lease, seizing the building or attempting to fire the Board of Trustees. The City has in fact withheld the scheduled October payment to the Museum. Plaintiff filed an amended complaint on October 1, 1999, adding claims for damages against the defendants, and claims of violation of the Equal Protection Clause and state and local law.

Meanwhile, on September 30, 1999, shortly before a conference scheduled by this court began, the City filed an action for ejectment against the Museum in New York State Supreme Court, Kings County. On the basis of that suit, the City invoked the abstention principles of Younger v. Harris, 401 U.S. 37 (1971), and asked this court to dismiss plaintiff's claims for injunctive and declaratory relief. At the conference, plaintiff was directed to file its contemplated preliminary injunction motion on October 4, and defendants were directed to file their abstention motion on the same date; limited document and deposition discovery was authorized; an exchange of affidavits, documents and briefs responding to the respective motions was scheduled for October 7; and a hearing was scheduled for October 8. Neither plaintiff nor defendants chose to present witnesses at the October 8 hearing. The parties' requests for an opportunity to present additional materials, including documents, affidavits, and supplemental briefs, were granted. The parties filed their respective supplemental materials on October 15; defendants filed a final responding declaration on October 21, and plaintiff filed a clarifying letter in response to that declaration on October 22. Numerous individuals and organizations have filed briefs amicus curiae; they are identified in the Appendix. Based upon agreements between the parties made in open court on October 20, certain allegations regarding financial hardship in plaintiff's supplemental submissions are not being considered on the motion for a preliminary injunction.

The City's state court ejectment action alleges that the Museum forfeited its right to occupy the premises by violating the Lease, the Contract, and the Museum's enabling legislation, in the following respects: (1) imposing a $9.75 admission charge for the Exhibit, without the Mayor's approval; (2) violating the Museum's obligation to "educate and enlighten school children and the public" and to serve a public purpose, in that the Museum intended to proceed with the Exhibit, which the City contends contains inappropriate, "sensational" matter that is "offensive to significant segments of the public;" and (3) improperly furthering "the commercial interests of private parties," rather than public purposes, because the works in the Exhibit come from the private collection of Charles Saatchi, who is a client of Christie's, the auction house, which also gave financial support to the Exhibit.

As described above, City officials had also claimed that the Museum's decision to restrict admission of children to the Exhibit violated the terms of the Lease, which, they claimed, requires open and equal access to the Museum by schoolchildren. Two days before the City initiated its ejectment action, the Museum's Board responded to this complaint by rescinding the requirement that children under seventeen be accompanied by adults, and instead posted warning notices.

At oral argument on October 8, the City announced that it was abandoning two of the three grounds for its ejectment action. The abandoned grounds are that the City is entitled to eject the Museum based upon the admission charge, and upon a perceived impropriety in the relationship among Mr. Saatchi, Christie's and the Museum. The City also abandoned any claim based upon the initial restriction on the admission of minors. The City now claims a right to eject the Museum based solely on its perception of the content of works in the Sensation Exhibit. The defendants' supplemental memorandum, filed after oral argument, asserts that the First Amendment does not prohibit the City from refusing to subsidize displays of art that are offensive and foster religious intolerance; it does not rely upon either of the grounds abandoned in the ejectment action.

ABSTENTION: THE MOTION TO DISMISS

The City and the Mayor seek dismissal of this action, insofar as it seeks injunctive or declaratory relief, in deference to a state court ejectment action filed by the City two days after this action was filed. The City, recognizing that the damages claim cannot be dismissed under abstention principles, see Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), also requests this Court to stay determination of the damages claim in deference to the state ejectment action. The motion is denied.

"Federal courts have an unflagging obligation to adjudicate cases brought within their jurisdiction. It is now black-letter law that abstention from the exercise of federal jurisdiction is the narrow exception, not the rule." Cecos International, Inc. v. Jorling, 895 F.2d 66, 70 (2d Cir. 1990); see Quackenbush, 517 U.S. at 716. The City cannot oust the federal courts of jurisdiction over a fundamental First Amendment dispute by asserting in state court a landlord-tenant issue, especially one that, as will be seen, is purely pretextual. There is no federal constitutional issue more grave than the effort by government officials to censor works of expression and to threaten the vitality of a major cultural institution, as punishment for failing to abide by governmental demands for orthodoxy. The defendants have not shown that the plaintiff, having properly invoked this court's jurisdiction, must instead assert its First Amendment claims as counterclaims to an ejectment action.

I. Principles of Younger Abstention

Younger v. Harris, 401 U.S. 37 (1971), relying on principles of federalism and comity, required the federal courts to abstain from interfering with an ongoing state criminal proceeding, even though the defense was that the statute under which the prosecution was brought violated the First Amendment. Nothing in that case, or in the cases since Younger which have applied the doctrine to certain types of civil actions, requires abstention here. Younger abstention requires that each of the following requirements be satisfied: 1) there is an ongoing state proceeding that will be disrupted by the federal suit; 2) an important state interest is implicated; and 3) the plaintiff has an avenue open for review of its constitutional claims in the ongoing state proceeding. See, e.g., Hansel v. Town Court, 56 F.3d 391, 393 (2d Cir.), cert. denied, 516 U.S. 1012 (1995). None of these requirements is met here.

To begin with, there simply was no ongoing state proceeding at the time the Museum brought its federal suit. "A federal court need not stay its jurisdictional hand when there is no state action pending at the time the federal suit is filed, even if there is a substantial likelihood that a state proceeding will be instituted in the future to vindicate the state's interests." Cecos International, 895 F.2d at 72; see Steffel v. Thompson, 415 U.S. 452, 462 (1974). Hicks v. Miranda, 422 U.S. 332, 349 (1975), upon which defendants rely, applied Younger where state criminal proceedings had not yet begun against the federal plaintiffs when the federal complaint was filed, but no proceedings of substance had taken place in federal court. It has no application here. In Hicks, extensive criminal proceedings in an obscenity case involving a theater owned by, and employees of, the federal plaintiffs were in progress, and the federal plaintiffs had appeared in those proceedings. Thus, an ongoing state criminal process was disrupted by the federal court's intervention. The Museum's federal action did not threaten to disrupt an ongoing state proceeding, much less a criminal proceeding.

Second, the City cannot establish the important state interest necessary to apply Younger in this civil case. As the Supreme Court stated in New Orleans Pub. Service, Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989), in rejecting a claim that the federal court should abstain in deference to a state court action in a rate-making proceeding:

Although our concern for comity and federalism has led us to expand the protection of Younger beyond state criminal prosecutions, to civil enforcement proceedings . . . and even to civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions . . . it has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court's refusal to decide a case in deference to the States.

Id. at 367-68 (citations omitted). An ejectment action is neither a "civil enforcement proceeding" nor one "uniquely in furtherance of the state courts' ability to perform their judicial functions." It is a landlord-tenant action that is routinely available in disputes between private parties. And the proper inquiry is "the importance of the generic proceedings to the State," id. at 365, not the importance of the state's interest in the particular case.

In Philip Morris, Inc. v. Blumenthal, 123 F.3d 103 (2d Cir. 1997), the Court held that Younger abstention was not warranted where the State had sued tobacco companies in state court seeking injunctive relief and damages under Connecticut's unfair trade practices law ("CUTPA"), state antitrust law, and state common law for the costs of treating tobacco-related illnesses. The Court rejected the State's argument that an important state interest was involved in the state court litigation, on the ground that "the state action does not appear to differ greatly from a private action under CUTPA, and the mere fact that the state is involved as a party does not transform the action into a `sovereign enforcement' proceeding." Id. at 107. Similarly, that the City is involved as a party does not transform an ejectment action into an enforcement proceeding.

The City argues that this case, unlike a private landlord-tenant dispute, involves important questions regarding proper use of public property and public funds. Use of "public funds," however, is not an issue in an ejectment action, and there is nothing inherently significant in a government landlord's claim of a lease violation by a tenant, even one which is publicly chartered and publicly subsidized. To be sure, this is no ordinary landlord-tenant dispute. But the importance of this litigation arises from the significance of the First Amendment issues involved; and it is precisely for that reason that the federal interests are supreme and that the federal courts should not be ousted of jurisdiction.

Finally, the state ejectment action will not give the Museum the kind of opportunity to present its constitutional claims that Younger abstention requires. Unlike the situation in Younger and cases relying on Younger, resolution of the City's claimed right to evict the Museum will not necessarily require determination of any First Amendment issues. For example, the Museum could be successful on the claim of a lease violation without the state court ever reaching First Amendment issues.

Even if it did reach them, the ejectment claim does not encompass the Museum's additional claims regarding actual and threatened termination of funding and efforts to remove its Board of Trustees. Thus, the defendants' argument that plaintiff's federal claims will be central to resolution of the ejectment action is rejected.

The defendants' further argument, that the Museum can, in any event, obtain resolution of its First Amendment claims by filing counterclaims to the ejectment action, fundamentally misapprehends the limits of abstention. The mere fact that a state court of general jurisdiction can entertain any claim between two parties properly before it is too insubstantial a basis for compelling a party which wishes to bring federal constitutional claims in federal court to present those claims to a state court instead. There is little difference between what the defendants seek here and compelling a plaintiff to bring a federal civil rights claim in state court in the first instance simply because a state forum is always available to hear it. Defendants' reliance on a footnote in Moore v. Sims, 442 U.S. 415, 430 n. 12 (1979), which rejected "mere semantical" distinctions between a "defense" and a "counterclaim," is misplaced. The Court viewed the state child abuse proceedings involved in Moore as implicating an important state interest closely analogous to the state's enforcement of its criminal laws. In addition, unlike here, the federal court was asked to interfere with an ongoing state proceeding, and one which involved a complex state statutory scheme. The Court's confidence, in Moore, that all of the federal plaintiffs' constitutional claims, however labeled, would be resolved in the state court action does not mean that every time a plaintiff seeks to vindicate federal constitutional rights in federal court, the governmental defendant can force the plaintiff into state court by filing a different lawsuit there.

II. The Younger Exception

Even if the three required elements for Younger abstention were established, abstention nevertheless is inappropriate if the state proceedings were initiated in bad faith, for purposes of harassment, retaliation or other improper motive, or in other extraordinary circumstances. Cullen v. Fliegner, 18 F.3d 96, 103-04 (2d Cir. 1994); see Moore, 442 U.S. at 432-33; Huffman v. Pursue, Ltd., 420 U.S. 592, 611-12 (1975); Younger, 401 U.S. at 53-54. Generally, such a showing can be made if the party bringing the state action can "have no reasonable expectation of obtaining a favorable outcome." Cullen, 18 F.3d at 103; cf. Allee v. Medrano, 416 U.S. 802, 819 & n. 14 (1974). It can also be made, even if there is a reasonable expectation of success, if the state action "has been brought to retaliate for or to deter constitutionally protected conduct." Cullen, 18 F.3d at 103. Here, both such circumstances exist.

The City's attempt to distinguish Cullen, by arguing that "the state action is not punishment for something else plaintiff did in the past nor is it a sham intended to deter future speech" is unpersuasive. The ejectment action is "punishment for something else" — the Museum's refusal to stop the Exhibit — and it is a "sham intended to deter future speech." The undisputed record demonstrates that the Mayor and other senior City officials were offended