State of the Profession: Dangerous Art

By Martin D. Snyder

Karl Marx agreed with Hegel's notion that great events and personalities in history reappear in one fashion or another, but Marx added that they appear the first time as tragedy, the second as farce. The transition from tragedy to farce, however, is not restricted to the famous names and events of the past. It is as contemporary as today's headlines and as close as your colleague down the hall. Consider the case of Steve Kurtz, associate professor of art at the State University of New York at Buffalo.

Last May 11, Kurtz awoke to find that his wife, Hope, had apparently died in her sleep. He called 911. The police and paramedics arrived, noticed lab equipment and petri dishes in the house and notified the Federal Bureau of Investigation. Within hours, Kurtz was in federal custody under provisions of the USA Patriot Act. The FBI seized Kurtz's lab equipment and materials, computer, records, correspondence, students' term papers, and the body of his wife. His house was searched for hazardous materials, but none were discovered. The Erie County Health Department determined that the suspicious substances and equipment were innocuous, and the death of Kurtz's wife was attributed to cardiac arrest. Clearly, this should have been the end of a tragic and harrowing episode in Kurtz's life, but personal tragedy was about to morph into national farce.

In his work, Kurtz combines satire, scientific research, and performance. He uses the kind of harmless biological material and equipment found in high school and college labs. Kurtz is a member of a five-person collective, Critical Art Ensemble, whose work takes frequent exception to the government's biotechnology policies. One of the items seized by the FBI in the "Kurtz bust" was an ensemble project scheduled for exhibition at the Massachusetts Museum of Contemporary Art. Entitled Free Range Grain, the project was essentially a laboratory to test for genetically modified organisms in food.

So why is Kurtz in trouble? Unable to find any credible links with bioterrorism, zealous federal prosecutors won indictments against Kurtz and his University of Pittsburgh colleague, Robert Ferrell, for mail and wire fraud. At issue was the transfer of small samples of two harmless strains of bacteria.

Kurtz had been unable to obtain bacteria samples for his artwork through his university's supplier, because it dispenses biological agents only to scientists and registered labs. According to the indictment, Kurtz contacted Ferrell, chair of the Department of Human Genetics at Pitt, and asked for his assistance in obtaining the cultures. Ferrell agreed, ordered the samples, and sent them to Kurtz, who held them in his home, where he was preparing for the upcoming exhibition.

The transfer apparently violated two sets of campus rules and one material transfer agreement, the contract between the sample supplier and the University of Pittsburgh. The contract specified that cultures provided to customers were for the exclusive use of the individual's institution, and were not to be transferred to others. The campus rules at Pitt and Buffalo required certain kinds of notice of all transfers of biological agents.

The indictment characterized these violations as "fraud." The use of the Internet and the U.S. mails to communicate about the transfers and to deliver the cultures (first to Ferrell from the company and then to Kurtz from Ferrell) created the basis for a federal case. Hence the four charges for mail and wire fraud (two for each strain of bacteria), which carry a potential total sentence of twenty years. The case was scheduled for trial in January.

Reaction to the indictment of Kurtz and Ferrell has been swift and vigorous. The Association issued an "action alert" asking members to contact their senators and representatives expressing concern about the government's action. It also joined with other free speech and anti-censorship organizations in a public statement decrying the government's disproportionate response to a minor infraction. The AAUP strongly supports legitimate precautions in biotechnology and related areas. But where security or safety concerns do not justify restrictions on free expression, the traditions of academic freedom and the fundamental constitutional freedoms of the American people must be preserved. Targeting artists and scholars like Kurtz and Ferrell does nothing to combat terrorism or enhance our nation's security. It serves only to cast a chill upon intellectual and creative activities and to turn the serious businessof law enforcement into a cheerless farce.

Martin Snyder is AAUP director of planning and development.

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