General standards of decency in the arts

Looking back at NEA v Finley

Recently the New York Times ran a piece on performance artist and teacher Karen Finley, on the twenty-fifth anniversary of her part in the case of National Endowment for the Arts v Finley (524 U.S. 569, 1998). It’s a case all American students of arts policy encounter, and my teaching of it shifts from year to year as my perspectives change (not in a linear way, I should say). So, looking back…

What happened?

The late 80s and early 90s were what were once described as the time of the “culture wars”, though we came to find that there never actually was a peace treaty to end them. The NEA came under fire from the right for funding art that was provocative and, to some, offensive or blasphemous, and faced calls for an end to its funding. As a compromise, the NEA added to its criteria for the awarding of grants, “that artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”

Karen Finley and three other artists were recommended for NEA grants by the peer-review panels, but were turned back at higher levels in the process on the “general standards of decency” clause. They sued, and were successful in district court and in appeals court arguing that the clause violated the First Amendment, on grounds of viewpoint discrimination, and also that the condition was unconstitutionally vague. But these judgments were reversed at the Supreme Court.

The Supremes:

I am painting with a very broad, “I am not a lawyer” brush here: The majority opinion (delivered by Justice O’Connor) held that any system of grants to artists would necessarily have a subjective element - what, after all, constitutes “artistic excellence” other than what a panel of experienced, educated and disinterested artists and critics believe it to be? - and that the “decency” provision is just one aspect of the general considerations of an artist’s proposed work.

The concurrence by Scalia and Thomas held the majority opinion was rather timid: it is government money, and the government can spend it as it likes. Freedom of expression doesn’t come in to play if the state hires my firm to fill the potholes on County Road 37, and it doesn’t come in to play here either.

The lone dissent is from Souter, who sees that the “decency” clause will inevitably restrict radical viewpoints more so than conventional ones.

The final tally was 8 - 1.

What to make of it?

To my mind Finley had the stronger case. Souter was correct that these granting criteria would affect some viewpoints more so than others, much more so than a criterion of artistic excellence (though even that is bound to be somewhat imperfect as well in this regard).

But the case highlights a problem that is very difficult to resolve.

The aftermath of the case was that the NEA simply stopped giving grants to individual artists at all (except for writers), and now focuses on nonprofit organizations, especially those working to bring the arts to underserved communities. It also passes along much of its budget to regional and state arts councils (not a terrible idea in this very big, very diverse nation). I don’t criticize the NEA when I say it has taken the safest route to self-preservation - how little we see it in the news now, and when self-styled “small-government” conservatives call for the agency’s elimination, it always eventually comes to nothing.

The difficulty here is how the American public feels about arm’s length government agencies. When it comes to public funding for artists, there are three options: (1) don’t do it at all, (2) have heavy public and political input into the allocations, or (3) trust an arm’s length council to make decisions on funding based upon applying expertise in the genre within a politically-determined mission. The third is what Keynes outlined at the formation of the Arts Council of Great Britain, but he recognized the Council would in the end be accountable to parliament. I like this system: I don’t know anything about physics, and am happy to have a panel of experts at the NSF decide which projects are most worthy of funds. I feel the same way about the arts. But the panels cannot set the criteria. That has to come from outside, and reflect why we collectively think we ought to be devoting money to this, whether this be science, the humanities, or the arts.

For arts funding to be based purely upon considerations of artistic excellence, as determined by panels of experts in the field, and not upon other considerations, is something that must be the outcome of political agreement. I would advocate for it, but it is obviously not a consensus position.

And here is the bind (I once heard Geoffrey Stone say something like this in a talk): if Karen Finley had been successful at the Supreme Court (as I continue to believe she deserved to), it is not far-fetched to believe that the calls for closing the agency would actually have met with success. For there is no constitutional right to having an arts council in the first place.

And that is the bind. There is the arts funding framework that artists and supporters would like to have, and what is politically feasible. And the politics matters: we could try to persuade people of the value of the avant-garde in the arts, of exploration and experimentation, but we cannot say “You think “Piss Christ” is offensive? Tough.”

And so, for now, caution in funding, good works in the community, increasing the diversity of participation in creation and in the audience, is about what arts funding can do. Arts funding must have some sort of rationale, and that rationale must have public approval, which might be of the form “I will trust expert panels to make the decisions.” But if the preference is for some sort of guardrails to be in place (and I suspect that is in fact the case), then one can try to use persuasion, but it is not easily dismissed.