Death Panel for the Arts: Part 3

This goes back to the debate about whether or not the government is a patron, and clearly, Cole finds that the government in this case cannot be a patron for the reasons previously stated.  However, the issue of the NEA panels is entirely different.  With the panels consisting of diverse artistic and cultural points of view, wide geographic, ethnic, and minority representation, and lay individuals who are knowledgeable about the arts from the outset of determining artistic merit, what need is there for the decency and respect panel?  The panel and the Council judge art meritorious, deciding on funding for the project based solely on that artistic excellence.  With the addition of the Congressional amendment, a second panel (of different persons than the first) was convened to decide the decency and respect it afforded to the American populace.  This is not the role of the NEA.  By excluding art that does not adhere to the decency and respect clause, not artistic merit, then the government is discriminating on content and point of view.

Would it be offensive for an artist to change the motto on our National Currency from “In God We Trust” to “In Allah We Trust” in an artwork?  Muslims would most likely say that this is not offensive, as long as there is no depiction of Allah on the currency.  However, it would be incredibly difficult to find a Christian who would not be offended.  In this example, two major subsets of the American populace react in vastly different ways, which one is correct?  The First Amendment strictly prohibits this exclusion of the artist’s work even in subsidy rather than a direct ban.  Not to attack the national motto, but the government has already established that Christian beliefs are more important than Muslim, Jewish, Hindi, etc. by not removing the motto.  Hence there is inherently no decency and respect clause as applied to the government as a whole, and the government is discriminating based on content and point of view.

“Does merit as the NEA statute employs the term, and as applied to the art panels, more neatly focus attention on the aesthetic dimension of the art – color, tone, skill, emotional force, beauty or ugliness – and not on messages or politics or contemporary moral values?” (Bezanson, p28)

Sure if the motto was changed to “In a Higher Power We Trust” it would not offend either Christians, Muslims, Jews, or Hindis, but it would remove the message of the art.  The fundamental shock of seeing a different culture (one which has been vilified) on national currency would be gone, along with it most of the message.  Removing the part of the message, while still leaving the artistic quality intact, defeats the point of the art.  Cole argued that if the first panel was to judge the merit of the art, then the second panel was to judge content and point of view, which is against the limitations of the First Amendment.  His argument was solid, but it was not viewed so.

In an eight to one vote, the Supreme Court found that decency and respect did not violate the First Amendment, and completely disregarded the argument for the Fifth Amendment.  In an unusual move, Justice O’Connor and Justice Scalia both wrote opinions for the decision, citing different reasoning.  Justice Souter gave the lone dissent to the vote, and also makes the most logical argument.

Justice O’Connor wrote that the decency and respect clause did not violate the First Amendment because it does not necessarily mean was it says it means.  Even if it does mean exactly what is written, then it does not exclude too much because of the limited funding the NEA is allotted to award.  In essence, she is arguing that because the NEA can only give out a handful of awards to a vast pool of applicants that the NEA inherently must make decisions on content and not just decency and respect.  The only issue with this is art characteristically includes indecent and disrespectful point of views and content that will be excluded from funding, causing the government to discriminate on point of view and content.

Justice O’Connor gets around this issue by establishing the government as a patron.  As discussed previously, this is a moot point, and cannot be considered proper.  In any case, she recognized government speaker-patron as her basis of argument.  She maintained, “Government is therefore not regulating or even limiting speech and art; it is facilitating and broadening it.” (Bezanson, p37)  Four other Justices on the Court, Chief Justice Rehnquist, and Justices Stevens, Kennedy, and Beyer supported this relatively unstable and illogical opinion.

Justice Scalia gave a vastly different opinion is support of the decency and respect clause, defining the clause to mean exactly what it states, not indecent or disrespectful art should be funded by the government.  He is essentially taking the First Amendment, crumpling it up, lighting it ablaze and throwing it out the Supreme Court’s window.  But what was Justice Scalia’s opinion of the arts before the Culture Wars and the Helms Amendment?  In 1987, just one year before Mapplethorpe and Serrano were funded, Justice Scalia had affirmed,

“We would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum.  Just as there is no use arguing about taste, there is no use litigating about it.  For the law courts to decide “What is Beauty” is a novelty even by today’s standards.” (Bezanson, 46)

There it is, the court, particularly Justice Scalia was influenced by public opinion and political pressure on this case and his opinion.  The court is a sovereign, fundamentally separate from the Executive and Legislative branches.  As this quote one year prior to the explosion of decency and respect shows, Justice Scalia politicized the court, which flies in the face of the courts 250-year history.

Justice Thomas supported Justice Scalia’s opinion goes on to find “as long as [government] isn’t regulating or prohibiting speech but just giving money, the First Amendment poses no obstacle. […] Karen Finley’s speech is not being abridged or prohibited. It’s just not getting the support from the government.” (Bezanson, p40)  That is the root of the issue, the government should not be allowed to decide what is good art and what art the American public is to ingest.  Without the funding, which was originally allotted to her, she is not reaching the audiences she was going to, in fact her audience decreased in size.  This is abridgement of First Amendment freedom of expression by way of speech.

Justice Souter’s dissent from both Justices O’Connor and Scalia is scathing, and was “accompanied only by a classical view of the First Amendment and virtually all of the Supreme Court’s prior decisions.” (Bezanson, p40)  While Justice Souter agreed with Justice Scalia on the purpose of the amendment and also that, when pertained to art, decency and respect are content based.  The basis of Justice Souter’s dissent was that this law is unconstitutional by way of the First Amendment because the government is not the speaker, instead funding private speakers.  The conclusion of his dissent is eloquent and unyielding.

“We have noted before that an esthetic government goal is perfectly legitimate. Decency and respect, on the other hand, are inherently and facially viewpoint-based, and serve no legitimate and permissible end. The Court’s assertion that the mere fact that grants must be awarded according to artistic merit precludes “absolute neutrality” on the part of the NEA is therefore misdirected.” (NEA v. Finley)

Adding the decency and respect clause, the NEA’s mission had to change; it no longer was a judge of art as art.  Now the NEA must take into consideration religious, social, political, and moral preferences when funding art, excluding art that would have otherwise passed NEA scrutiny.

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