The force of Tocqueville's observation that in America political questions tend to become legal questions has not diminished with time, as the Ninth Circuit's recent decision in Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996), emphatically shows. Indeed, even a narrow statement of Finley's holding - that the Constitution forbids the NEA from taking into account the "decency" of a prospective grantee's proposed work - carries an extraordinary number of doctrinal and policy implications, most of which can be traced to the essentially political nature of the dispute.
The case, and some might say a somewhat larger problem, begins with the statutory mandate. The NEA is endowed by Congress to provide grants to "individuals of exceptional talent engaged in or concerned with the arts." 20 U.S.C. §954(c). Prior to 1990, grants were to be awarded on the basis of "artistic excellence" and "artistic merit." In response to the controversy over the funding of "art" that many found offensive, Congress amended the statute to require the NEA to "take into consideration general standards of decency and respect for the diverse beliefs and values of the American public."
This clause prompted Ms. Finley and three fellow artists to file suit, alleging among other things that the "decency" standard is both unconstitutionally vague and an impermissible, content-based restriction on protected speech. By a 2-1 vote, a Ninth Circuit panel (Judge Browning writing for himself and Judge Ferguson, with Judge Kleinfeld in dissent) held that the statutory provision was both unconstitutionally vague and a content-based speech restriction, reasoning that the "decency and respect" criterion does not provide sufficient safeguards against "arbitrary and discriminatory application of provisions that touch upon speech."
As Professor Kalven said, "[i]t is a revealing test of the quality of a Supreme Court opinion on freedom of speech to see whether or not the Court cites in detail or quotes the offensive message. When it does not, we should be on guard." While Kalven's caution was directed at opinions seeking to justify restraints by exaggerating the threatening nature of the speech at issue, the point is valid for any speech opinion. It is therefore a caution that neither the Ninth Circuit nor the district court described what the plaintiffs wished to do with the money they sought. We have only Judge Kleinfeld's partial description in dissent, which tells us that Ms. Finley's co-plaintiffs alleged that their work challenged traditional notions of gender and sexuality, and addressed issues relating to "AIDS, birth, death, religion" and "consumption in a capitalist society."
Ms. Finley, of course, has achieved a certain notoriety for previous performances in which she disrobed on stage and smeared chocolate sauce over her body. This aspect of her performance, which attracted considerable attention and in part led Congress to add "decency" as a criterion for awarding grants, was said to dramatize the subjugation of women and the violent acts committed against them.
Whatever the artistic merit of Ms. Finley's oeuvre - and it is, no doubt, considerable - it is a safe bet that many of those called upon to foot the bill for such activities would find the prospect of a naked woman declaiming on stage while smearing herself with chocolate sauce to be, at best, bizarre. A sufficient number of constituents voiced their displeasure to Congress, which sent a fairly clear statutory message to the NEA to clean up its act.
For better or worse, presumed artistic merit protects Ms. Finley's performance from suppression, but not even the Ninth Circuit was willing to say that she was constitutionally entitled to public funds. The Court instead ruled that "decency" is such an elastic concept that it might be used as a pretext for denying grants on invidious grounds, and was therefore impermissibly vague. In the Court's words, the clause "grants government officials power to deny an application for funding if the application offends the officials' subjective beliefs and values," thereby posing the risk that "funding may be refused because of the artist's political or social message or because the art or the artist is too controversial."
This argument proves far too much. The NEA, after all, is itself a product of "subjective beliefs and values," in that it reflects a public decision to spend public funds in order to achieve certain ends specified by the public's representatives. Because the NEA's mission is to assist those who display "exceptional talent" in the arts, rather than to run an artistic lottery, the NEA must evaluate artists' work and make qualitative decisions to separate the exceptional grant-seekers from the unexceptional. Qualitative decisions as to the content of the artists' "speech" is in fact the very essence of the grant program. The Court's failure to recognize this basic fact is fatal to its analysis.
Judge Kleinfeld's dissent makes this point well, arguing that while "decency" may be a vague term, "artistic excellence" and "artistic merit" are hardly paragons of clarity. Thus, it is true but irrelevant that a member of the NEA might use "decency" as a pretext for denying a grant on political grounds. NEA members will always be able to advance hidden agendas simply because they operate a program designed to discriminate among artists based on the content of their work using criteria that are, at best, fluid. Why the Court chose to condemn a single clause for a risk inherent in the very enterprise at issue is somewhat less than apparent.
The majority's viewpoint discrimination holding fares no better. Recalling Professor Kalven's caution, one might well ask what viewpoints were at issue. Assuming that Ms. Finley's work calls attention to the subjugation of women, it is hard to see how imposing decency as a criterion would allow the NEA to deny her a grant on viewpoint discriminatory grounds. Whatever "decency" may mean, it is safe to say that most (if not almost all) feminist messages would fall within its scope. Feminism and decency are not antonyms, just as feminism and nude chocolate-smearing are not synonyms. There may be a correlation between strong dissent and indecency, but it presumably would apply to dissenters on both sides of the ideological spectrum.
Much more could be said about the Court's faulty legal reasoning, but the most important aspects of Finley relate to the serious policy questions the dispute raises. Assuming the Ninth Circuit's ruling stands, Congress might simply accept that a post-Finley NEA will not be subject to the decency restriction, but it might also respond to the decision by eliminating the grant program altogether. Which course is wiser? Finley suggests that, viewed from either side of the funding equation, the problems inherent in governmental funding of the arts outweigh the benefits.
On the recipient side of the grant equation, the problem is the risk of distorting the art society will produce. The concept of a starving artist living solely for his or her work will appeal more to readers of fiction than to actual artists. Talented but impecunious artists will therefore be drawn to produce the types of art for which they may earn a living. Absent a sudden explosion in patrons anxious to risk funds on unproven talent, some such artists may quite reasonably seek government grants. Grant programs in turn will necessarily have boundaries; at a minimum, the NEA must decide what "art" is. The existence of money within these boundaries will entice artists to fit their work within them. And if grants exclude indecent speech, artists may curtail their vision and the public may be denied indecent art that might otherwise have been produced.
Based on such reasoning (and with strong support from George Stigler and Freidrich Hayek), Judge Kleinfeld's dissent presents a cogent case for cessation of government funding of the arts. Though artists might see it as paternalistic pretext, the risk that government funding will distort the arts seems at least as plausible as the idea that artists could serve as genuine social critics and dissenters even as they invoke the judiciary's injunctive processes to obtain grants of taxpayer funds to which they evidently feel entitled. The tradition of artistic dissent has taken some odd turns indeed.
The majority's answer to this point - leaving funding decisions unconstrained by any but "artistic" concerns - raises a more fundamental problem. The congressional expenditure of taxpayer funds is a political act, and the NEA is no more immune to political circumstances affecting its funding than artists would be. If Congress had not passed the decency amendment, there is a fair chance the NEA would have beat a strategic (if temporary) retreat away from controversial grants simply because it relies on Congress - and therefore the public - for its existence. As a practical matter, the majority's vision of experts awarding grants on apolitical grounds is an illusion reminiscent of a New Deal faith in regulation by agencies.
Under any sensible interpretation of democracy, such expenditures should be subject to political pressures, which is to say they should be subject to modification by those whose money is being spent. If we assume that governmental intrusions into the arts will affect the types of art produced, that such intrusions will invariably (and properly) reflect numerous political choices, and that governmental funding will therefore likely cause distortions in the production of art that are to some degree political, then there is a good case for concluding that the government should borrow the first tenet of the Hippocratic oath and cease funding.
Against this it may be said that the operation of the art markets is not the only issue at stake. If the government were to conclude that funding regional symphony orchestras would have a civilizing effect on American culture, for example, I would be hard pressed to disagree. We read in the papers that shopping malls are seeking to drive out miscreants by playing Mozart, and perhaps a national experiment is worth a try. Though difficult to define, national culture and national values are important. One may well argue that, in addition to underwriting the occupant of the bully pulpit at any given time, government funds may sensibly be spent on direct subsidies designed to define such values and enhance our culture.
The invariably political nature of governmental funding decisions, and the invariably political effects of funding, warrant a fundamental reexamination of our approach. If we collectively conclude that continued funding is warranted (as we reasonably could), we should do so only after carefully considering its political effects, and with an explicit design to give effect to the wishes of the citizens whose funds are being spent. If we cannot do that, as Finley holds we cannot, we should not be spending the money at all. Whatever the state of the culture wars at any given point in time, the Constitution cannot sustain the role the Finley court would give it.
*David McGowan is an associate with the San Francisco law firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin.