Death Panel for the Arts: Part 2

The NEA decency panels did not think that her offensive material was suitable for the American public though.  After first being approved for the grant by a panel consisting of “diverse artistic and cultural points of view, wide geographic, ethnic, and minority representation, and lay individuals who are knowledgeable about the arts.” (NEA v. Finley), her application went to another panel of the same constitution this time focused on decency and respect instead of artistic excellence.  The second panel then gave a resounding disapproval of her application and denied her the funding previously allocated for her.  This is the First Amendment and partially Fifth Amendment issue that Finley took the NEA to court on.

The Fifth Amendment charge Finley brought was based in the clause “[no person shall] be deprived of life, liberty, or property, without due process of law.” (Madison)  In essence, the argument was that Finley had been deprived of life – in the sense of pursuing goals and career, liberty – in the sense of freedom of expression and speech, and property – in the sense of funding from the NEA and the matching grants required to receive that funding.  Her Fifth Amendment argument was not strong but it was still included in the case due to the integral part it played in the major constitutional violation that had occurred against her.

The First Amendment clearly states, “Congress shall make no law[…]abridging the freedom of speech.” (Madison)  Modern constitutional interpretation has lead speech to include expression; which is the basis of the argument.  In fact, in a 1945 Supreme Court Case, it was so written “any attempt to restrain [these] liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger.” (Swindler)  Obviously, the safety of the state was not at all in danger from Finley’s performance.  Fortunately for the court, they had only to adhere to the imminent lawless action test instated in 1969.  The test states that the government may only limit speech that incites unlawful action sooner than the police can arrive to prevent that action.  Finley’s performance did not violate this test either, making her argument valid to appear in court.

After passing the imminent lawless action test and being valid in the Fifth Amendment argument, Finley’s case revolved around the decency and respect clause in the Helms amendment.  Her argument was the decency and respect clause violated the First Amendment right of freedom of speech.  What makes this argument so important to art and artists are “the central questions of art, aesthetics, and how, when, why, and if government should ever intrude into the artistic and aesthetic realms when regulating expression.” (Bezanson, p11)  The Supreme Court does not handle questions of art and aesthetics frequently and unfortunately for many, when it does, it gives it only a superficial analysis.

The beast the Court had the chance to take on was what constitutes art, expression, and aesthetics?, instead it took the route of procedural standards of decision.  Three concerns were brought against decency and respect: the law’s over breadth or under inclusiveness, vagueness, and the capacity in which the government acts when it selectively restricts funds or speech. (Bezanson, p13)  At this point, it becomes important to distinguish the difference between mode and manner and subject and content.  Mode refers to the time, place, and genre of the art being presented, while manner refers to the presentation be that profanity, nudity, violence, etc.  It is simple to restrict a message without a specific point of view (no graphic pictures when teaching driver’s education courses in schools) as opposed to messages with a specific point of view (saying student drivers are deadly on the road).  The difference between these two statements is the mode and manner in which they are presented.  The courts under the First Amendment cannot restrict subject and content, so art with a message cannot be restricted.

Solicitor General Waxman sought “to characterize the decency and respect amendment as a law focused on mode or manner of expression, not subject or content and particularly not point of view.” (Bezanson, p17)  In effect, the Solicitor General is pitting mode and manner against message and viewpoint.  In this case, message meaning “a cognitive, reasoned message, not a sensuous or aesthetic one.” (Bezanson, p19)

While this is one way to interpret and argue the law, the debate is shifted from the creation of art to a more nebulous discussion of technicalities.  The only problem with this round of logic is that if a cognitive and reasoned message is removed from art, mode and manner become art and the message.  A Rothko painting is still the same painting if you view it in the National Gallery of Art with an information plaque in 2012 or on a wall in a restaurant with no information in 1976; the context has changed (perhaps along with the message), but a message still remains.  Art inherently has a viewpoint and a message, even when removed from its original mode and manner.

There is a reason for the Solicitor General to avoid the entire discussion of point of view and message “because there is a newly emerging First Amendment doctrine of government speech that applies when the government itself is speaking, not when the government is restricting or regulating the speech of other private persons.” (Bezanson, p21)  What this new doctrine is purporting is to make the government an independent voice, not just a sovereign.  The implication being that government speech can make a statement for or against something without stating the opposite.  This idea can translate over to the government being a patron.  So now the government has three roles: a sovereign, a speaker, and a patron.

As the art world has seen many times in the past with patrons, they are allowed to discriminate between art and artists and to destroy works that are not acceptable to whatever standards they expect or require.  Lest we not forget the Great Castration of the statues at the Vatican, the Mississippi River Panorama cut up into pieces, Diego Rivera’s Man at the Crossroads jackhammered off the Rockefeller lobby wall, The Pearl Monument in Bahrain torn down by the government.  These are just a sampling of visual artwork destroyed by their patrons, thousands, if not tens to hundreds of thousands have been destroyed over the years and were lost to history because of these patrons.  This amounts to artistic license on the part of the patron.  If the patron can have this much control after the fact, then what about before the art has even been created?  What works envisioned by Rubens, da Vinci, Michelangelo, Botticelli, and Raphael were never created because the Medici family refused to fund the project?

The one major difference between the NEA and a patron is the NEA does not purchase the work; it merely funds the work.  This singular, seemingly innocuous difference is incalculably important in this debate.  If the government by extension of the NEA were to fund the artwork and then own the work it would be like a Senator commissioning a painting for their office.  Only if the NEA were to own the work after completion would they be a patron, otherwise, they are merely a governmental source of funding – a sovereign.

These were the arguments of Solicitor General Waxman representing the NEA before the Court.  David Cole delivered the plaintiff dispute, delving not into the meaning of art and aesthetics, instead standing solidly in the First Amendment, in much the same way as Waxman.  His arguments revolved around artistic excellence versus decency and respect through the NEA panel reviews and decisions.  Cole argues, “It’s not a case of the Government hiring artists to express a Government message.  Rather, it’s a case about the Government selectively subsidizing private speakers speaking for themselves.” (Bezanson, p26)

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