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February 27: Art & the Government

Background Materials (items marked by a red arrow should be read)

The following documents are also available in the Library Administrative office, fifth floor of Areeda above the reference desk:

• National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) 
• Schauer, Principles, Institutions, and the First Amendment, 112 Harv. L. Rev. 84 (1998)
• Cuban Museum of Arts and Culture, Inc. v. City of Miami, 766 F.Supp. 1121 (S.D.Fla.,1991)
• Memorandum of Law submitted on behalf of various amici curiae in Brooklyn Institute of Arts and Sciences v. City of New York, 64 F.Supp.2d 184 (E.D.N.Y. 1999)

Government interacts with the arts in various ways. Two principle roles it plays are that of regulator and patron. Government can regulate the process of artistic creation or the content of religious expression. But it must respect artistic freedom of expression in so doing. As a patron, the state can finance art directly through purchase, commissions or funding, or indirectly through tax breaks. Controversial art can make the government's exercise of its regulatory or fiscal powers also controversial.

Art, like other forms of expression, can inspire or offend. Art can offend one's political or religious beliefs, one's ethnic or social affiliation, one's aesthetic or moral senses. As a form of expression, art might run foul of rules properly restricting expression, such as libel laws, privacy laws, or national security regulations.

Private objections to controversial art play out in the private legal arena. If a patron objects to a commissioned work, payment can be withheld. If a museum director finds an installation potentially libelous, obscene, or simply bad art, the work can be removed. Civil suits may follow. When government officials find art objectionable, however, or are asked to use governmental powers to prevent display of the art or to punish the artists, issues of constitutional complexity arise.

How the government should respond to controversial art depends on whether the government is acting as consumer, patron, or censor. In the US, the First Amendment tightly limits governmental censorship. "Degenerate Art" cannot be censored directly. US cases have most typically involved obscenity or the flag. After Miller v. California, 413 U.S. 15 (1973), and Jenkins v. Georgia, 418 U.S. 153 (1974), creative art work seems to be absolutely protected from obscenity laws unless it involves the depiction of hard-core sexual conduct for its own sake or for commercial gain. 

After Brandenburg v. Ohio, 395 U.S. 444 (1969), unpatriotic or subversive speech (or art) cannot be suppressed unless aimed at and likely to incite "imminently lawless conduct." Key provisions of the 1968 Flag Desecration Act, 18 U.S.C. §700, were found unconstitutional in Texas v. Johnson, 491 U.S. 397 (1989); U.S. v. Eichman, 496 U.S. 310 (1990) found its amended version also unconstitutional because it "suppresses expression out of concern for its likely communicative impact."  Of course, that impact is not entirely fanciful; a 1996 Phoenix Art Museum exhibition "Old Glory: The American Flag in Contemporary Art" produced the now-to-be-expected protests. 

And the debate continues. A proposed amendment to the Constitution to prohibit burning or other desecration of the flag failed Wednesday, March 29, 2000, by a 63 to 37 vote, four votes short of the required two-thirds majority, much to the delight of People for the American Way and to the chagrin the Citizens Flag Alliance. Harvard faculty have weighed in on both sides of the argument. Charles Fried and Kathleen Sullivan co-authored an ACLU amicus brief and Richard Parker testified before the Senate Judiciary Committee in favor of amending the Constitution to permit protection of the flag (4/20/99). 

Other uses of the government's licensing and regulatory powers have been attempted to regulate "art speech," but the courts have generally been unsympathetic.

The General Services Administration was sued by the artist Richard Serra for removing his controversial sculpture Tilted Arc from Federal Plaza in lower Manhattan. In Serra v. General Services Administration, 847 F.2d 1045 (2d Cir. 1988), a pre-VARA decision, the Second Circuit held that neither Serra's first amendment nor due process rights had been violated. The best account of this work's (short) life is Calvin Tompkins, "Tilted Arc," The New Yorker, May 20, 1985, at 95-101. See also Richard Serra's Tilted Arc (1981) and the PBS summary from its Culture Shock series..

Closer to home, check out the web site of the Cambridge Arts Council. Monuments to the Great Hunger have produced mild controversy in the HUB. See Kevin P. Murphy, Cambridge Irish Hunger Monument, and Boston Irish Famine Memorial by sculptor Robert Shure. Of the latter, it has been said: 

• "It's a waste of good public space," says Nick Capasso, a public art specialist at the DeCordova Museum in Lincoln, Mass.
• "Personally, I find it very moving," says Ray McKenna, president of the Rhode Island Irish Famine Memorial
  Committee.

The government's role as a benefactor of the arts has posed more difficult questions for society in general and for the courts in particular. Serano's "Piss Christ" and Mapplethorpe's homoerotic photographs triggered culture wars over the NEA funding of controversial art. See Richard Jensen, "The Culture Wars, 1965-1995: A Historian's Map" (revised version); Joseph Wesley Zeigler, "Striving for Positive Passivity: Ideas for a Future NEA"; The Ethical Spectacle, End All Federal Support of Controversial Art. 

Freedom of Expression at the National Endowment for the Arts, a web site developed and maintained by Julie Van Camp, Professor of Philosophy, California State University, Long Beach, provides an excellent introduction to this topic. Prof. Van Camp provides succinct analysis of:

	How is freedom of expression for artists protected by the First Amendment to the U.S. Constitution.
	Is funding of the arts an appropriate government activity?
	How does freedom of expression apply in the context of federally funded activities?
	How is aesthetic value determined by the executive and judiciary branches of government?

The culmination of the battle over NEA funding - at least for the moment - came two years ago when the Supreme Court decided National Endowment for the Arts v. Finley, 524 U.S. 569 (1998). Congress has passed a statute that required the NEA to take "into consideration general standards of decency" in deciding whether to fund an application. In an opinion by Justice O'Connor, the Court upheld the constitutionality of that requirement, claiming "that the legislation was aimed at reforming procedures rather than precluding speech," and was unlikely to become "a tool for invidious viewpoint discrimination." Justice Scalia concurred but went further, asserting that the government could decide how to spend its money and could withhold funds from artists whose viewpoint was considered objectionable. Justice Souter dissented on classic liberal grounds, asserting "the fundamental rule of the First Amendment that viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional." 

Justice O'Connor was caught between Scylla and Charybdis: if the Court found the requirement unconstitutional, Congress might withdraw all funding from the NEA; if the Court permitted Congress to classify certain art as objectionable, a pogrom of "degenerate art" might ensue. 

Read Justice O'Connor's opinion to see if her legal rationale matches her political skills. The opinion can be found on the Van Camp web site or here. Justice Scalia's concurrence is here; Justice Souter's dissent is here.

Frederick Schauer, Frank Stanton Professor of the First Amendment and Academic Dean, John F. Kennedy School of Government, wrote a comment on Finley in the November, 1998, Harvard Law Review. See Schauer, Principles, Institutions, and the First Amendment, 112 Harv. L. Rev. 84 (1998). 

Last year's controversy over government withdrawal of support for controversial art came over the Sensation Exhibit at the Brooklyn Museum. The Arts Journal maintains an extensive set of links here. After an initial delay, many arts organizations filed briefs in support of the museum. In Brooklyn Institute of Arts and Sciences v. City of New York, 64 F.Supp.2d 184 (E.D.N.Y. Nov 01, 1999) (NO. 99 CV 6071), Judge Gershon had no difficulty ordering the City of New York to restore funding to the museum. 

But Mayor Giuliani and the Brooklyn Museum have again squared off, this time over Renee Cox's portrayal of the "Last Supper."  Now, according to the Boston Globe, the Mayor wants to establish a task force to establish ''decency standards'' for museums that receive taxpayers' money.

Mayor Giuliani's attempt to revoke the lease of the Brooklyn Museum was an eerie replay of events at the Cuban Museum of Arts and Culture in Miami. When the directors of the museum voted 19-18 to proceed with a fund-raising auction that included the paintings of artists who lived in Cuba or had not criticized the Cuban Government, the Miami City Council turned against the museum. Although the museum won its case not to have its lease revoked, it lacked community support, recently closed, and donated its collection to a local university.  

Christie's plans to auction off Cattelan's "The Ninth Hour", a picture that has offended supporters of Pope John Paul II.

Over the years, many artists have encountered censorship problems in portraying the "Last Supper." Perhaps the most famous is Veronese. But see also the Monty Python skit, Michaelangelo and the Pope.

Unless otherwise noted, all material is Copyright © 2000 by the President and Fellows of Harvard College.  All rights reserved.
Last updated on 03/14/01 by Terry Martin.