Editor's Note: Over the last 18 months, artists internationally have been anxiously following the Kafkaesque legal persecution of artist Steven Kurtz and scientist Robert Ferrell. The case has far-reaching implications for artists, scientists, and other researchers. The following information was provided by the CAE Defense Fund.


The Attack on Artistic and Intellectual Freedom: the U.S. Justice Department's prosecution of Steven Kurtz & Robert Ferrell

CAE Legal Defense Fund


The Issues

The issues in this case are fundamental: freedom of speech, freedom of expression and academic freedom. The case is precedent-setting, and will help determine whether artists and other Americans can be criminalized—as 50 years ago during the infamous McCarthy trials— for their ideas .

The Case

In May 2004, the Joint Terrorism Task Force illegally detained artist and University at Buffalo professor Steve Kurtz of Critical Art Ensemble (CAE). They seized documents, computers, and equipment used in three of CAE's projects, including scientific equipment for monitoring genetically altered food. The seized materials were to have been part of an exhibition and performance at the Massachusetts Museum of Contemporary Art (MASS MoCA). All of the materials are legal and commonly used for scientific education and research activities in universities and high schools. The New York State Commissioner of Public Health determined that the materials seized by the FBI pose no public safety risk. Nevertheless, today Steve Kurtz faces a possible 20 years in prison in what has become increasingly clear is a politically motivated attempt to silence an artist whose work is critical of government policy.

Critical Art Ensemble

CAE is a collective of internationally recognized artists who work in public, educational, academic and art contexts. Their writings have been translated into at least 16 languages and their work has been covered by most major art journals, including Artforum , Kunstforum , and a special section in a recent issue of The Drama Review dedicated to CAE. For the past few years, their principal aim has been to help the general public understand biotechnology. By making scientific research accessible to laypeople through participatory performance experiences, CAE aims to demystify what is safe and what is dangerous about today's biotech industry. CAE always undertake their work in a safe and considered way. The materials they use are strictly non-hazardous, can be legally obtained by anyone, and are commonly found in undergraduate level biology labs.

View the projects in question:

Read more about CAE's work:

Background to the Case

On May 11, 2004 , Steve Kurtz's wife of 20 years, Hope, died of heart failure in their home in Buffalo . Kurtz called 911. Buffalo Police who responded along with emergency workers became alarmed by the presence of art materials in their home that had been displayed in museums and galleries throughout Europe and North America . The materials consisted of several petri dishes containing three benign forms of bacteria, and a mobile DNA-extraction laboratory to test store-bought food for possible contamination by genetically modified grains and organisms. Convinced that these materials were the work of a terrorist, the police called the FBI. The next day as Kurtz was on his way home from the funeral home he was illegally detained for 22 hours by agents from the FBI and Joint Terrorism Task Force, who informed him he was being investigated for "bioterrorism." Meanwhile, agents from numerous federal law enforcement agencies—including five regional branches of the FBI, the Joint Terrorism Task Force, Homeland Security, the Department of Defense, and the Buffalo Police, Fire Department, and state Marshall's office—descended on Kurtz's home in Hazmat suits. Cordoning off half a block around his home, they seized his cat, car, computers, manuscripts, books, equipment, and even his wife's body from the county coroner for further analysis. (This occurred after the county coroner had already determined that Hope Kurtz had died of natural causes.) The Erie County Health Department condemned his house as a possible "health risk." A week later, only after the Commissioner of Public Health for New York State had tested samples from the home and announced there was no public safety threat, was Kurtz allowed to return to his home and to recover his wife's body. To this day, the FBI has not released most of the tens of thousands of dollars worth of impounded materials, including a book Kurtz was working on.

While most observers assumed the Task Force would realize that its initial investigation was a terrible mistake, the feds have instead chosen to press their "case" against Kurtz and possibly others. Despite the Public Health Commissioner's conclusion as to the safety of Kurtz's materials, and despite the fact that the FBI's own field and laboratory tests showed that they were not used for any illegal purpose, the U.S. District Attorney continues to waste vast sums of public money prosecuting this outlandish, politically motivated case.

Artist and Scientist face possible 20 year sentences

On June 29, 2004 , a federal Grand Jury charged Kurtz, not with “bioterrorism,” as listed on the Joint Terrorism Task Force's original search warrant and subpoenas, but with 2 counts each of federal criminal “mail fraud” and “wire fraud.” Although these are a far cry from the charges originally sought by the District Attorney, they are still serious federal charges, which carry the same potential sentence as the original “bioterrorism” charge would have: up to 20 years. Also indicted was Robert Ferrell, former head of the Department of Genetics at the University of Pittsburgh 's School of Public Health , and a collaborator on several of CAE's projects. (Since Ferrell is gravely ill at this point, his case is being held in dormancy.) Under the arraignment conditions, until last month Kurtz was subject to travel restrictions, random and scheduled visits from a probation officer, and periodic drug tests.

The charges concern technicalities of how Ferrell allegedly helped Kurtz obtain $256 worth of harmless bacteria for one of CAE's art projects. The laws under which the indictments were obtained (Title 18, United States Code, sections 1341 and 1343) are normally used against those defrauding others of money or property, as in telemarketing schemes. Because these laws are written very broadly, they have often been used to put away social and political troublemakers, beginning with Marcus Garvey. In Kurtz's case, they are being used in an attempt to silence an artist whose views are unpopular with the current administration, by making what could at best be a civil contract dispute into a federal criminal charge.

Prosecutorial Prejudice

The interpretation of wire and mail fraud being used by the federal government in this case is so broad as to make incorrectly filling in a manufacturer's warranty for a TV set into a federal crime. The government is arguing that Ferrell and Kurtz intentionally "defrauded" the University and American Type Culture Collection (ATCC, the suppliers of the harmless bacterial cultures used in CAE's projects). In the indictment, the DoJ alleges that Bob used his contract through the University of Pittsburgh with ATCC to purchase the bacteria, which he then gave to Steve, thereby violating a material transfer agreement. If the defendants did what is alleged in the indictment, they broke a contract. At most this would be a civil offense to be settled between the University of Pittsburgh and ATCC, but neither of these parties, nor the New York or Pennsylvania state authorities, have brought any complaint against Ferrell or Kurtz. In fact, scientists frequently share materials in this manner as a basis of academic collaboration.

This is the first time the Department of Justice has ever tried to prosecute the alleged breaking of a material transfer agreement as federal mail fraud. What's more, in pursuing this “case” the U.S. Department of Justice is going far outside its own guidelines as clearly stated in its Prosecution Policy Relating to Mail Fraud and Wire Fraud:

"Prosecutions of fraud ordinarily should not be undertaken if the scheme employed consists of some isolated transactions between individuals, involving minor loss to the victims, in which case the parties should be left to settle their differences by civil or criminal litigation in the state courts. Serious consideration, however, should be given to the prosecution of any scheme which in its nature is directed to defrauding a class of persons, or the general public, with a substantial pattern of conduct.”

No actions by Kurtz or Ferrell could possibly be stretched to fit these guidelines.

According to affidavits and search warrants obtained by Kurtz's lawyer, the FBI and federal prosecuting attorney William Hochul obtained the search warrants to Kurtz's home and office by intentionally misleading a judge. The judge was never told of Kurtz's lengthy, credible and complete explanation of what the harmless bacterial substances were being used for; nor of the fact that Kurtz tasted the Serratia in one of the petri dishes in front of an officer to prove it was harmless; nor that Kurtz was a professor and artist who had exhibited the materials at museums and galleries internationally. In a blatant and illegal use of racial profiling, the judge was told of Kurtz's possession of a photograph with Arabic writing beside it, but not of the photograph's context: an invitation to an art exhibition at MASS MoCA! The photograph, by artists The Atlas Group, was one of several exhibited pieces pictured on the invitation.

A Warning to Artists

“[This case is] really going to have a chilling impact on the type of work people are going to do in this arena, and other arenas as well," noted Stephen Halpern, a SUNY Buffalo law professor who specializes in Constitutional law. (New Standard News, 6/06/04 ). Professors and staff from the University of California system express similar fears. "We are both extremely concerned and disturbed that the prosecution of the CAE members and research colleagues is continuing...We see here a pattern of behavior that leads to the curtailing of academic freedom, freedom of artistic expression, freedom of interdisciplinary investigation, freedom of information exchange, freedom of knowledge accumulation and reflection, and freedom of bona fide and peaceful research. All of which are fundamental rights and cornerstones of a modern academic environment."

“Kurtz's materials are politically, not physically, dangerous," said Mary-Claire King, the University of Washington geneticist who first proved the existence of a gene for hereditary breast cancer. "They [Steve Kurtz and the Critical Art Ensemble] recreate [scientific] ideas using their own way of imaging, and then say, 'Maybe you'd like to look at it this way.' To me, that's teaching. It does not seem to me to threaten homeland security. In fact, I would be threatened to live in a homeland in which that was perceived to be a threat." ( Tacoma News Tribune, 6/27/04 ).

CAE had intended to use the bacteria concerned in a project critiquing the history of US involvement in germ warfare experiments, including the Bush administration's earmarking of billions of dollars to erect high-security laboratories around the country. Many eminent scientists likewise view these plans as a recipe for catastrophe. "I'm concerned about them from the standpoint of science, safety, security, public health and economics," writes Dr. Richard Ebright, lab director at Rutgers University 's Waksman Institute of Microbiology and a Howard Hughes Medical Institute investigator. "They lose on all counts.”( New York Times, 6/29/04 , www.nytimes.com/2004/06/29/science/29cont.html )

What you can do to help

Without the international support of artists, scientists, and other citizens, Kurtz would probably be in jail now awaiting trial. As we know, justice in political trials is won in the court of public opinion as much as in the court of law. Because of the grassroots efforts of thousands of people on 5 continents, the CAE Defense Fund has raised the more than $200,000 necessary for Kurtz and Ferrell's defense. Due to the overwhelming success of this fundraising effort, there are currently 5 main forms of support that we need:

1) Publicizing this precedent-setting case and its implications for artists, scientists, researchers and others in any way you can. Visit caedefensefund.org to download a banner for your website, or a flyer like this to print and hand out. You can also download everything you need to set up your own informational table by following the What Can You Do? hyperlink to our Activist Toolkit.

2) Organizing teach-ins and fundraisers to raise awareness about the case and related issues including the infringement of civil liberties and civil rights, and the threats to artistic and intellectual freedom. The Defense Fund can help facilitate such events by providing speakers and information about the case.

3) Publicizing this case via the news media. In this regard, we are still hoping for a real investigative story into the DoJ's and prosecuting District Attorney William Hochul's motivations in this “case.”

4) Offering expert testimony. Should a trial occur, we will need curators and contemporary art historians and theorists to offer expert testimony on the cultural legitimacy of CAE's activities. We will also need scientists in the fields of biology, microbiology, and molecular biology to be expert witnesses, particularly in the areas of laboratory procedures, laboratory behaviors, and microbiology safety issues.

5) In the event of a trial, helping to mobilize support for a massive demonstration in Buffalo , NY .

It is crucial that this support continue as the government extends this outrageous and wasteful persecution into a grueling trial.


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Lucia Sommer

University of Rochester