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Prosecution or persecution? The story of Steve Kurtz


Art and government policy have never co-existed comfortably in the United States. And you don't have to look far for examples of the discord.

There's the so-called NEA Four, a group of controversial performance artists whose National Endowment for the Arts grants were summarily vetoed in 1990. Or Andres Serrano, who had a photo of his Piss Christ infamously torn by New York State Senator Alfonse D'Amato during a 1989 congressional session. And, of course, there's the more municipal example of then-New York City Mayor Rudy Giuliani threatening to revoke the Brooklyn Museum's lease and remove its funding unless it removed its notorious 1999 exhibit Sensation.

Now there's Buffalo-based biological artist-activist and University of Buffalo professor Steve Kurtz, who's been federally indicted after an unfortunate run-in with Patriot Act-era policies.

The facts surrounding Kurtz's case have been well documented: On the morning of May 11, 2004, Kurtz awoke to find his wife, Hope, dead beside him. He called the local authorities, whose suspicions were immediately raised by a home DNA-extraction laboratory for Free Range Grain, an installation Kurtz was preparing for exhibition at Mass MoCA. Within moments, Kurtz was descended upon by the FBI and the Joint Terrorism Task Force. Feds in hazmat suits confiscated his lab materials, his dead wife, even his housecat. Kurtz was detained for 22 hours, and he was facing charges of biological terrorism.

The bio-terror charges were eventually thrown out, after local and federal agencies determined Kurtz's lab was innocuous --- certainly not capable of preparing biological weaponry --- and that Kurtz's wife died of natural causes.

But on June 29, the 40-something Kurtz was indicted on four counts of wire and mail fraud, felonies carrying sentences of up to 20 years. The federal prosecutor in the Kurtz case (William J. Hochul Jr., the same person who prosecuted the Lackawanna Six) is alleging that Kurtz illegally obtained $256 worth of biological samples through University of Pittsburgh professor Robert Ferrell, who's also been charged. The fraud charge stems from licensing agreements between the school and its bio supplier.

Free Range Grain would have enabled museum visitors to find out whether there were undisclosed genetically modified organisms in any food they brought to the gallery. It was to be shown at Mass MoCA as part of a group show with the Critical Art Ensemble, of which Kurtz is a member.

The CAE's activism --- gaining more exposure now than it ever did before the Kurtz case --- is what has many artists convinced that Kurtz's ordeal has more to do with First Amendment rights than mail fraud.

The CAE dedicates itself "to exploring the intersections between art, technology, radical politics, and critical theory." Its website ( includes links to biotech, tactical, and book projects the collective has been involved in since forming in the 1980s. Among the book titles (all of which are free for download as PDFs on the site): The Electronic Disturbance, Electronic Civil Disobedience, Digital Resistance, and Molecular Invasion. Those titles alone might explain the feds' keen interest in Kurtz.

"They're critical. They're radical," says Hallwalls Contemporary Art Center Director Ed Cardoni. "They're dissenting in their viewpoints. But they're without question entirely protected by the First Amendment. And I think this was a First Amendment issue as soon as it was determined there were no hazardous biological materials in Kurtz's home. Still, because of the CAE's writings, the prosecution's finding things they feel advocate bio-terrorism. But if you read their books carefully, you'll find they actually argue against the sabotage of, for example, genetically modified crops because it would hurt farmers and workers and wouldn't really hurt the big corporations."

Cardoni, who is also acting board president of the National Association of Artists' Organizations, has volunteered in that capacity to administer the CAE's Legal Defense Fund. More than $50,000 has been raised so far, and most of it has been spent on Kurtz's legal fees and the legal fees incurred by fellow artists subpoenaed to appear before a federal grand jury on the matter.

Cardoni's position at Hallwalls places him near the center of Buffalo's thriving contemporary art community, where he says a "chilling effect" is being felt. And, he says, it extends way beyond Western New York. Artists and academics all over the world are watching the Kurtz case closely.

"As long as only people of Arab origin or people with Muslim names are targets, other people in the academic and art communities will feel free to dissent and support those people," he says. "But if they themselves become targets, regardless of someone being an established university professor, then that will have a chilling effect. And in fact that's proven to be the case."

He refers to an invitation Kurtz had to speak at a CUNY Center for Humanities program called "The History of Academic Freedom" just a few weeks ago. Kurtz, who is out on parole and has to report to a probation officer and submit to random drug and alcohol tests at any moment's notice, gave the talk. But his funding for the lecture was yanked unexpectedly at the last second.

Still, a visit to the CAE's overwhelmingly thorough website dedicated to this issue,, reveals that Kurtz has maintained a fairly constant speaking schedule. The site also archives all the Kurtz-case press, which has been plentiful and plenty sympathetic to Kurtz, who seems to have achieved near folk-hero status among his sympathizers.

Despite the support, Cardoni says Kurtz's time since that tragic morning last May "is being totally taken up by defending himself legally. He teaches, but when you add all the time the case is taking to teaching, leaves no time for artwork."

Free Range Grain remains in some sort of government holding cell. And the question lingers: Why, with the bio-terror charges dismissed, are the feds still pursuing this case?

Claire Pentecost, a CAE associate and professor at The Art Institute of Chicago, has just days ago issued a paper with that question at its center.

"The Justice Department," she posits, "now has to justify the time and money they spent on this case in the first few weeks and has to answer to the publicity the case has attracted."

She includes raw data from Syracuse University's Transactional Records Access Clearinghouse, an independent analyzer of federal records. According to a study found on the TRAC website (, federal investigators had recommended 6,400 matters for prosecution on suspicion of terrorism from September 11, 2001 to September 30, 2003. As of September 2003, the feds had processed 2,681 of those cases. Five were sentenced to 20 years or more in prison. "For those categorized as international terrorists the median sentence was 14 days," the study states.

"These kinds of punishments," Pentecost writes, "do not suggest that for all the people being investigated and dragged through the system, serious terrorists are being snagged." (Interestingly, the Bush administration is now withholding information the government had previously released to TRAC.)

In January, Kurtz's attorneys moved to have the entire case dismissed.

In the meantime, Kurtz's hearings have been continually postponed. And one of Kurtz's CAE colleagues, Steve Barnes, has been re-subpoenaed to appear before a federal grand jury with offers of immunity.

"They're trying to find a rat," Cardoni says. "But what does Barnes need immunity from? He hasn't done anything they could prosecute him for. And there's nothing illegal Kurtz has done that Barnes will be able to tell them about."

To prepare for what will surely be mounting legal fees, the CAE Defense Fund is holding an art auction in Chelsea's Paula Cooper Gallery, with donated works from artists like Chris Burden and Cindy Sherman. And Buffalo's Soundlab is holding a benefit concert with DJ Spooky next Wednesday (see infobox below).

Yet the question will remain: Why are the feds prosecuting this case?

For Cardoni, the answer's simple. And it has everything to do with First Amendment rights.

"This prosecution is really a form of persecution," he says, "for the ideas that have been expressed by the CAE through their exhibitions and published writings."

The Critical Art Ensemble Defense Fund's benefit concert with DJ Spooky That Subliminal Kid takes place on Wednesday, April 20, at Big Orbit Gallery's Soundlab, 110 Pearl Street, Buffalo, at 9 p.m. $10. Advanced sales: