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Marci A. Hamilton

The NEA and Political Propaganda


Thursday, September 17, 2009

Recently, the Obama Administration has been accused of using the National Endowment for the Arts (NEA) as a means of furthering propaganda for its pet causes – health care, energy, and the environment. Republicans like Sen. John Cornyn (R-Texas) have castigated the Administration for using the NEA for its own purposes.

The true lesson here, though, is that no political party is above using its purse to coerce the arts to present messages that are compatible with the views of those in power.

Republican Administrations, Too, Have Faced Charges of Politicizing Government-Funded Art

Film producer Patrick Courrieche was one of 75 artists, musicians, poets, and authors who joined a conference call arranged by the NEA, the White House Office of Public Engagement, and the nonprofit United We Serve. Courrieche says that, on the call, he and the other artists were encouraged to produce artworks that furthered the Obama Administration's priorities. A spokesperson for United We Serve disputes the details of Courrieche's account, saying that the purpose of the call was to encourage works of art supporting public service. From either account, however, it is apparent that the Administration was encouraging artists to choose certain topics that would be compatible with the Administration's agenda.

This is not the first time that an Administration and political party have sought to change the marketplace of artworks to conform with their own moral vision. Not long ago, Republicans angrily denounced the NEA for funding controversial artworks by Karen Finley and Robert Mapplethorpe. The Republicans were particularly outraged that Mapplethorpe produced the work "PissChrist," which displayed a crucifix in a jar of urine. This was an affront to all Christians and believers, they said, and no money from the nation's treasury should be permitted to fund it.

The Supreme Court Rejected a Facial Challenge to an NEA "Decency Requirement"

The Republicans then took action, and altered the standards for funding individual artists to include a "decency" requirement. Liberals and libertarians attacked the new standard as a form of government censorship – and took their case all the way to the Supreme Court.

In an opinion by Justice O'Connor, the Court held in NEA v. Finley that the decency limitation could survive a facial challenge – that is, a challenge that argued that it was unconstitutional in every application. The Court rejected the argument that a "decency" requirement would always be unconstitutional, noting that such a restriction might be appropriate if the audience for the art were children. The Court left open the possibility though, that the limitation might violate the First Amendment's Free Speech Clause in a particular future case – a case in which the government would apply the decency requirement based upon the viewpoint of a particular work or artist, or would engage in content discrimination, punishing work specifically because of the message it sent.

At that time, the Democrats were castigating the Republicans for trying to turn the NEA to their message. Now we are seeing the same dynamic, but the one in power using the NEA is simply on the other side of the aisle.

We Should Not Be Surprised when Administrations Seek to Harness Art's Power

Art delivers messages powerfully, so it should not be surprising to any observer that those in power often seek to harness art to their own ends. Historically, governments have often conscripted art to glorify their reigns and to carry their messages. Yet in a free society, art is also one of the most effective means for dissenters to challenge tyrannical governments. When the government controls art in any way, the people and liberty suffer.

As I argued more fully in my article Art Speech in the Vanderbilt Law Review in 1996, when the government funds art and then uses its purse and control to change the mix of artworks in the marketplace, First Amendment values are undermined. The marketplace for artworks should be kept free of government meddling. The government has the power to use art it purchases to further its message. But that is not what is happening here. By using the source of government funding for art to further its policies, the Obama Administration is subtly altering the range of messages in the market.

Therefore, the greatest liberty would be achieved through the elimination of the NEA, which is an ongoing temptation to Administrations that would use art's power to further their goals. What we need most from art is its ability to look at society's pressing issues through new prisms and in new lights, and the NEA naturally compromises the abilities of the artists it funds to do that, by making them beholden.

The answer here is not to fix the standards governing the NEA again, or to create new regulations that would forbid the NEA from initiating such phone calls. Nor is the answer yet another speech by the President "clarifying" his views. The answer is to eliminate the NEA and to clear the way for the private market in art to produce the works that come from artists' authentic visions – for and against the dominating vision in Washington.

The resulting mix of works will likely include some nods to public service, health care, energy, and the environment. But those messages will be uncoerced by yet another Administration that is so drunk with its own power that it thoughtlessly tries to script the marketplace of ideas.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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