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Defending Rudy, Part 2
Timothy NoahPosted Thursday, Sept. 30, 1999, at 2:16 PM ETThe dispute over whether Rudolph Giuliani can force the Brooklyn Museum of Art to withdraw from its new "Sensation" art exhibit an elephant-dung-covered painting depicting the Virgin Mary (and surrounded, Chatterbox neglected to mention last time, by photographs of genitals scissored out of porno magazines) has entered federal court. The Brooklyn Museum hired Floyd Abrams to sue the mayor and New York City. Here is what Abrams said in his Sept. 28 complaint for declaratory and injunctive relief (which ought to be on the Web, but isn't):
Although the City may generally choose to fund museums as it sees fit, it may not make funding decisions for the purpose of punishing a museum's constitutionally protected expression. Mayor Giuliani's repeatedly announced decision to retaliate against the BMA is in violation of the
First Amendment
of the Constitution of the United States, as made applicable to the States by the
Fourteenth Amendment
of the Constitution of the United States.
Does a museum's constitutional right to free expression, which is undeniable, really include the right to demand a government subsidy? (The city of New York provides one-third of the Brooklyn Museum's budget.) To Chatterbox, the notion is transparently absurd. But Abrams is the nation's preeminent first-amendment lawyer, justly celebrated for defending the New York Times in the Pentagon Papers case. Can he possibly have the law on his side? (Incidentally, the Senate today jumped into the fight by voting unanimously to withhold $500,000 from the Brooklyn Museum; click here to read MSNBC's account.)
Guided by a pretty good news analysis piece in today's New York Times (which has been reflexively anti-Giuliani in most of its coverage), Chatterbox looked up the Supreme Court's most recent ruling touching on this question, in a case where Karen Finley, the performance artist famous for smearing chocolate on her breasts, sued the National Endowment for the Arts for withdrawing a grant. The decision, by Sandra Day O'Connor, gives much comfort to Abrams and the Brooklyn Museum by flatly stating that "the First Amendment certainly has application in the subsidy context." Here is some more language from the decision that bolsters the Brooklyn Museum:
We have stated that, even in the provision of subsidies, the Government may not "ai[m] at the suppression of dangerous ideas," Regan, supra, 461 U.S., at 550 (internal quotation marks omitted), and if a subsidy were "manipulated" to have a "coercive effect," then relief could be appropriate. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 237 (1987) (Scalia, J., dissenting); see also Leathers v. Medlock, 499 U.S. 439, 447 (1991) ("[D]ifferential taxation of First Amendment speakers is constitutionally suspect when it threatens to suppress the expression of particular ideas or viewpoints"). In addition, as the NEA itself concedes, a more pressing constitutional question would arise if government funding resulted in the imposition of a disproportionate burden calculated to drive "certain ideas or viewpoints from the marketplace." Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991); see Brief for Petitioners 38, n. 12.
But is the government, in withdrawing funding that indirectly subsidizes a shit-smeared painting of a madonna, suppressing an idea, or merely saying it wants no part in promoting it? (In practice, the most efficient way to publicize an idea is to condemn it; the madonna painting has by now been reproduced, albeit in miniature, in the Times and countless other news outlets. If you missed it before, click here.)
Mister Justice Chatterbox humbly dissents from the Supreme Court majority's view that the First Amendment has any "application in the subsidy context." This puts Mister Justice Chatterbox in agreement with Antonin Scalia, a jurist whom Chatterbox is not in the habit of praising. Scalia, though concurring in the decision (which ultimately favored the NEA against Finley), wrote a somewhat mocking critique of O'Connor's muddy reasoning on this question that was so lucid that Chatterbox will give him the last word:
The First Amendment reads: "Congress shall make no law ... abridging the freedom of speech." U.S.Const., Amdt. 1 (emphasis added). To abridge is "to contract, to diminish; to deprive of." T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). With the enactment of §954(d)(1), Congress did not abridge the speech of those who disdain the beliefs and values of the American public, nor did it abridge indecent speech. Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures " ' "aimed at the suppression of dangerous ideas." ' " Regan v. Taxation with Representation of Wash., 461 U.S. 540, 550 (1983) (emphasis added) (quoting Cammarano v. United States, 358 U.S. 498, 513 (1959), in turn quoting Speiser v. Randall, 357 U.S. 513, 519 (1958)). "The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily 'infringe' a fundamental right is that--unlike direct restriction or prohibition--such a denial does not, as a general rule, have any significant coercive effect." Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 237 (1987) (Scalia, J., dissenting).
E-mail Timothy Noah at .
Timothy Noah is a senior writer at Slate. The Fraymaster responds:
This reader thinks that threatening to withdraw funding from an exhibit is nothing if not coercive:
"If withdrawing the subsidy 'does not, as a general rule, have any substantial coercive effect' (I hope I got the quote right), why is it being withdrawn? Guiliani is threatening to withdraw the money precisely to get the museum to change its mind.
"In criminal cases it used to be true, in some states, that you had the right to remain silent, but if you did, the jury would be told that you chose to remain silent and they could hold it against you if they wanted. Coercive? How is that different from saying you can show any picture you want, but if you show THAT picture, it will cost you 5 million bucks (or whatever)?"
Another reader responds to the above post:
"A good point that goes to the heart of this whole dispute. To most conservatives, like Scalia, coercion by government means the use of police power to compel a course of conduct, like a criminal sanction or a stiff civil penalty for non-compliance with the law. To most liberals, certainly to liberal civil libertarians who consider themselves the guardians of individual rights, government coercion has a much broader meaning: it's coercive if the government declines to give you a certain tax subsidy; it's coercive if the school board decides the students should wear uniforms; it's coercive if the state requires a pregant minor female in her third trimester to justify her request to a court for an abortion.
"Two views of government that are as ships passing in the night. Since the French revolution, conservatives have been those who seek to moderate the pace of change and to protect customs, traditions and values. Liberals or progressives generally are those who value change and 'progress' or, at least, purport to."
The challenge, notes this reader, is to distinguish the motives of the government in withdrawing subsidies:
"Noah makes a good point in his article, but he doesn't mention what is probably the museum's strongest argument. It goes something like this: Yes, the city is free to spend its dollars how it wants. But to cut off funding because of an exhibit amounts to viewpoint discrimination. William Safire makes this very point in today's Times op-ed page when he says that the city is within its rights to proactively cut off funding in the future. This gets to a very hard to define area in the law, which is trying to ascertain motive. It is clear here that the motive is based on the exhibit. But the mayor might have been able to get away with it if he just said, the city will no longer fund the museum, and not given a reason. A rebuttal to the viewpoint discrimination argument is based on decency law, which says that the community has certain standards, and this exhibit is beyond the pale."
This reader says the Finley precedent isn't the only legal issue involved:
"Floyd Abrams and his client may have a tougher row to hoe in this case than the Finley case cited by Chatterbox. At issue in Finley was whether the public funding authority (NEA) properly applied a 'decency' standard promulgated by Congress or discriminated against certain applicants for funds based on their viewpoint and violated its own applications procedures, as well as whether the statutory standard of decency is constitutional.
"In the case of the Brooklyn Museum, there are applicable local laws, a local legislative history, city budget lines for cultural affairs funding, grant applications and grant review and approval procedures, a lease between the city as landlord and the museum as tenant, past patterns and practices in city dealings with the museum and its peer institutions, and so on.
"As the Times pointed out in its analysis today, the Supreme Court has ducked each opportunity to rule broadly on the cases of public funding of the arts brought before it. So, despite Abrams' smooth effort to make it appear that the outcome is not in doubt, it remains very much in doubt. What the Court (if the case gets there) will not do is to favor the city with a decision that permits content-based retaliatory discrimination. It seems entirely possible that, if the city has the right facts to put before the trial court, the Supreme Court will be able to duck the broader issue, while siding with the city. What facts? Its rights as landlord, the misuse of city funds to promote a private, commercial venture, some heretofore obscure provision of the museum's charter. Who knows? But a done deal, it's not because the high court has not dealt squarely with this issue--yet."
This Fray poster says the Brooklyn Museum hates discrimination--except when it comes to Catholics:
"The uproar by the liberals is understandable. Catholic bashing is OK since it is, a priori, art. Doing the same thing to let's say blacks or Jews, is hateful and mean-spirited...
"I do not want my tax money to support trash art, or any art for that matter. If I want to enjoy art, I go to the Met or MOMA in NYC. I pay my admission for the privilege. We have no more business supporting art precisely because one person's art is another person's trash.
"Rudy is right on target on this issue. Watch the liberals and anti-Catholics scream!!!"
This respondent says that, these days, avant-garde is merely what shocks:
"The title of the art show Giuliani is objecting to has the word 'sensation' in it. When I was writing for a college paper I interviewed a whole series of artists and maybe 1 out of 10 had really thought through his or her art in terms of content. Most of them flew by the seat of their pants, coming up with explanations for the art long after the fact. I've interviewed just enough artists to know what that glassy-eyed look is, 'Give me time to make something up.'
"I read Tom Wolfe's The Painted Word (buy it here) within the last year. I studied art and I try to be supportive of creative work in every field ... but I couldn't help laughing a lot and seeing his point: the art theory had outstripped the art itself and that artists were just doing everything they could to shock ordinary people."
Hey, wait a minute, says this reader. The Madonna-dung painter comes from Nigeria, where dung is a sign of fertility:
"the first rule that i was taught as a journalism student was to do my homework. it is very sad to see such an angry article about a single piece of art. the artist who created the 'elephant dung-smeared Virgin' is Catholic, as am i. he is also of Nigerian descent. anyone who is familiar with the Nigerian culture knows that elephant dung is a sacred symbol of growth and fertility. why is it that people are so quick to be offended by things that they simply don't understand? if you do not care to broaden your mind, you have no business going to an art exhibit in the first place."
Finally, this Fray poster thinks liberals are gettin' uppity:
"I really despise these foolish liberal hock-monkeys that have been criticizing the mayor on his decision to CUT funding. Most of these morons think that he is trying to censor artwork. I wish they would just stop thinking and be good little drones."
--Michael Brus (9/30)
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The Fraymaster responds:
This reader thinks that threatening to withdraw funding from an exhibit is nothing if not coercive:
"If withdrawing the subsidy 'does not, as a general rule, have any substantial coercive effect' (I hope I got the quote right), why is it being withdrawn? Guiliani is threatening to withdraw the money precisely to get the museum to change its mind.
"In criminal cases it used to be true, in some states, that you had the right to remain silent, but if you did, the jury would be told that you chose to remain silent and they could hold it against you if they wanted. Coercive? How is that different from saying you can show any picture you want, but if you show THAT picture, it will cost you 5 million bucks (or whatever)?"
Another reader responds to the above post:
"A good point that goes to the heart of this whole dispute. To most conservatives, like Scalia, coercion by government means the use of police power to compel a course of conduct, like a criminal sanction or a stiff civil penalty for non-compliance with the law. To most liberals, certainly to liberal civil libertarians who consider themselves the guardians of individual rights, government coercion has a much broader meaning: it's coercive if the government declines to give you a certain tax subsidy; it's coercive if the school board decides the students should wear uniforms; it's coercive if the state requires a pregant minor female in her third trimester to justify her request to a court for an abortion.
"Two views of government that are as ships passing in the night. Since the French revolution, conservatives have been those who seek to moderate the pace of change and to protect customs, traditions and values. Liberals or progressives generally are those who value change and 'progress' or, at least, purport to."
The challenge, notes this reader, is to distinguish the motives of the government in withdrawing subsidies:
"Noah makes a good point in his article, but he doesn't mention what is probably the museum's strongest argument. It goes something like this: Yes, the city is free to spend its dollars how it wants. But to cut off funding because of an exhibit amounts to viewpoint discrimination. William Safire makes this very point in today's Times op-ed page when he says that the city is within its rights to proactively cut off funding in the future. This gets to a very hard to define area in the law, which is trying to ascertain motive. It is clear here that the motive is based on the exhibit. But the mayor might have been able to get away with it if he just said, the city will no longer fund the museum, and not given a reason. A rebuttal to the viewpoint discrimination argument is based on decency law, which says that the community has certain standards, and this exhibit is beyond the pale."
This reader says the Finley precedent isn't the only legal issue involved:
"Floyd Abrams and his client may have a tougher row to hoe in this case than the Finley case cited by Chatterbox. At issue in Finley was whether the public funding authority (NEA) properly applied a 'decency' standard promulgated by Congress or discriminated against certain applicants for funds based on their viewpoint and violated its own applications procedures, as well as whether the statutory standard of decency is constitutional.
"In the case of the Brooklyn Museum, there are applicable local laws, a local legislative history, city budget lines for cultural affairs funding, grant applications and grant review and approval procedures, a lease between the city as landlord and the museum as tenant, past patterns and practices in city dealings with the museum and its peer institutions, and so on.
"As the Times pointed out in its analysis today, the Supreme Court has ducked each opportunity to rule broadly on the cases of public funding of the arts brought before it. So, despite Abrams' smooth effort to make it appear that the outcome is not in doubt, it remains very much in doubt. What the Court (if the case gets there) will not do is to favor the city with a decision that permits content-based retaliatory discrimination. It seems entirely possible that, if the city has the right facts to put before the trial court, the Supreme Court will be able to duck the broader issue, while siding with the city. What facts? Its rights as landlord, the misuse of city funds to promote a private, commercial venture, some heretofore obscure provision of the museum's charter. Who knows? But a done deal, it's not because the high court has not dealt squarely with this issue--yet."
This Fray poster says the Brooklyn Museum hates discrimination--except when it comes to Catholics:
"The uproar by the liberals is understandable. Catholic bashing is OK since it is, a priori, art. Doing the same thing to let's say blacks or Jews, is hateful and mean-spirited...
"I do not want my tax money to support trash art, or any art for that matter. If I want to enjoy art, I go to the Met or MOMA in NYC. I pay my admission for the privilege. We have no more business supporting art precisely because one person's art is another person's trash.
"Rudy is right on target on this issue. Watch the liberals and anti-Catholics scream!!!"
This respondent says that, these days, avant-garde is merely what shocks:
"The title of the art show Giuliani is objecting to has the word 'sensation' in it. When I was writing for a college paper I interviewed a whole series of artists and maybe 1 out of 10 had really thought through his or her art in terms of content. Most of them flew by the seat of their pants, coming up with explanations for the art long after the fact. I've interviewed just enough artists to know what that glassy-eyed look is, 'Give me time to make something up.'
"I read Tom Wolfe's The Painted Word (buy it here) within the last year. I studied art and I try to be supportive of creative work in every field ... but I couldn't help laughing a lot and seeing his point: the art theory had outstripped the art itself and that artists were just doing everything they could to shock ordinary people."
Hey, wait a minute, says this reader. The Madonna-dung painter comes from Nigeria, where dung is a sign of fertility:
"the first rule that i was taught as a journalism student was to do my homework. it is very sad to see such an angry article about a single piece of art. the artist who created the 'elephant dung-smeared Virgin' is Catholic, as am i. he is also of Nigerian descent. anyone who is familiar with the Nigerian culture knows that elephant dung is a sacred symbol of growth and fertility. why is it that people are so quick to be offended by things that they simply don't understand? if you do not care to broaden your mind, you have no business going to an art exhibit in the first place."
Finally, this Fray poster thinks liberals are gettin' uppity:
"I really despise these foolish liberal hock-monkeys that have been criticizing the mayor on his decision to CUT funding. Most of these morons think that he is trying to censor artwork. I wish they would just stop thinking and be good little drones."
--Michael Brus (9/30)