Government and the Arts

Background Materials

Government interacts with the arts in various ways. Two principle roles it plays are that of regulator and patron. Sometimes these roles conflict. Government can regulate the process of artistic creation and even the content, 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. For a useful overview of these issues, see Ken Paulson, Arts & Free Expression Overview, at the First Amendment Center web site.

Regulation of artistic expression

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. Harvard faculty have weighed in on both sides of the argument. Charles Fried and Kathleen Sullivan co-authored an ACLU amicus brief against an amendment and Richard Parker testified before the Senate Judiciary Committee in favor of amending the Constitution to permit protection of the flag (4/20/99). 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. But in July 2001, the House of Representatives voted 298 to 125 in support of a proposed constitutional amendment that would allow Congress to make it a crime to desecrate an American flag. Although the Senate never passed a comparable bill, a proposed amendment has been introduced in both houses of the 108th Congress. And fifty states have proposed that Congress endorse a flag amendment and send it to the states for ratification.

Other uses of the government's licensing and regulatory powers have been attempted to regulate "art speech," but the courts have generally been unsympathetic. See Marci A. Hamilton, Art Speech, 49 Vand. L. Rev. 73 (1996) HeinOnline Lexis Westlaw 

Publicly purchased or commissioned art

On the other hand, courts rarely interfere in the government's exercise of its consumption of art, which is considerable. The Smithsonian Institution manages several institutions with millions of objects. The Congress has a significant amount of Art in the U.S. Capitol, though it may not appeal to one and all. The federal Commission on Fine Arts (CFA), though officially an advisory body, has great influence in the approval of monuments, stamps, coins, insignia, and medals and the selection of artists. The Heritage Foundation has recommended the CFA be closed down. As one example of the process, visit the Vietnam Veterans Memorial (official site) and review Maya Lin's 'Clear Vision' by Linton Weeks, Washington Post, October 20, 1995.

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. Serra's walls continue to arouse opposition, from Barcelona to Cal Tech. Something there is that does not love a wall.

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.

See LEXIS for the full story: "Irish famine memorial prompts controversy" by Bill Van Siclen, Providence Journal-Bulletin, March 18, 1999, p. 1A.  The artsMEDIA 3-Word Review is here.

Government funding for the arts

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:

The culmination of the battle over NEA funding - at least for the moment - came in 1998 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). 

Michael Rushton, Public Funding of Controversial Art, 24 J. Cult. Econ. 267-282 (November 2000), examines rationales that have been put forward by philosophical liberals, economists, and communitarians in support of public funding of the arts. Rushton finds that for each of these rationales the decency-and-respect provision on funding is justifiable. [The Journal of Cultural Economics is available as a e-journal through HOLLIS. A special double issue, numbers 1-2 of this journal for 1999, contains a number of articles of particular interest to art lawyers.] See also J. Mark Schuster, The Other Side of the Subsidized Muse: Indirect Aid Revisited, 23 J. Cult. Econ. 51-70 (1999) and Bruno S. Frey, State Support and Creativity in the Arts: Some New Considerations, 23 J. Cult. Econ. 71-85 (1999). 

In 1999, the major 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. 

Mayor Giuliani and the Brooklyn Museum squared off again, this time over Renee Cox's portrayal of the "Last Supper."  As a result, the Mayor established a task force to determine ''decency standards'' for museums that receive taxpayers' money. The recommendations of the Cultural Affairs Advisory Commission, which includes Giuliani's divorce lawyer, turned out to be rather weak.

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.  

Cattelan's "The Ninth Hour", a picture that has offended supporters of Pope John Paul II, sells for over 47% of its high estimate at a Christie auction.

Over the years, many artists have encountered censorship problems in portraying the "Last Supper." Perhaps the most famous is Veronese. A RealVideo Link to Veronese's problems with the Inquisition is available if you have Real Player, which can be downloaded here.

But see also the Monty Python skit, Michelangelo and the Pope.

Recent Scholarship

Current Web resources:

Further reading:

Films:

Dirty Pictures 104 minutes, color, VHS/DVD, 2000. Directed by Frank Pierson and starring James Woods, the film depicts the trial of Dennis Barrie, curator of the Cincinnati Arts Center, for obscenity by exhibiting the show, The Perfect Moment, by late photographer Robert Mapplethorpe. Much to the credit of the filmmakers, all one-hundred and seventy five photos from the original Mapplethorpe exhibit, including those named in the indictment, are shown in the course of this film. Another plus is the inclusion of series of short interviews on the subject of censorship from William F. Buckley, Jr., Rep. Barney Frank, Fran Lebowitz, Salman Rushdie, Susan Sarandon, and Nadine Strossen. These thoughtful, well-selected exchanges underscore the issues and are artfully interspersed with events. Thanks to that kind of cleverness in the structure, as well as a satisfying performance by James Woods in the leading role as Barrie, this superior made-for-TV movie won the Golden Globe award for "Best Mini-Series or Motion Picture Made for TV."

Graffiti Verité (Read the Writing on the Wall). 45 minutes, color, 1995. Bob Bryan's Graffiti Verité makes a very good attempt at documenting the Los Angeles graffiti culture, placing graffiti in its own context, away from its hip-hop brethren in breaking and rap.

Maya Lin: A Strong Clear Vision. 105 minutes, color, 1994. An Oscar-winning feature documentary film by Freida Lee Mock, produced by Freida Lee Mock and Terry Sanders, of sculptor/architect Maya Lin who designed the Vietnam Veterans Memorial in Washington, D.C., and the Civil Rights Memorial in Montgomery, Alabama.

Trial of Tilted Arc.  52 min., b&w, 1985. Directed by Shu Lea Cheang, this low=budget documentary discusses three issues surrounding the 1985 trial for the removal of Richard Serra's public sculpture, "Tilted Arc" from the Federal Plaza in NYC.