UPDATE: Judge Denies MASS MoCA’s Request To Keep Artists From Making Art

On Friday, August 17, 2007, a Massachusetts Magistrate Judge denied MASS MoCA’s request to keep litigation documents confidential and from public view. Aside from very limited set of documents, the Magistrate Judge ruled that nothing is to be kept confidential. Büchel submitted his opposition to MASS MoCA’s request for an emergency motion for protective order on Thursday, arguing that MASS MoCA’s request would violate the First Amendment of the U.S. Constitution by not allowing either party or the public to disclose and discuss tesimony given or documents produced during litigation.

Büchel argued that in order for a Court to grant the Museum their request to keep records confidential, under the current legal standard the Museum would have to show a compelling reason as to why their request should be granted. In other words, the good cause standard would have been met if the Museum had established that disclosure of documents would cause a clear, specific, and serious injury to the Museum. Instead, and with the exception of a limited set of documents, the Magistrate Judge found that the Museum’s arguments were based on conclusory statements and not on a particular factual demonstration of potential harm.

In effect, Büchel’s attorneys argued that MASS MoCA “sued an artist claiming a right to charge the public to view a display of his unfinished work thus [now] claims that it is aggrieved by the artist having the temerity to make art out of the museum’s use of the legal process to take control of his creation.”