Back in the 1950s, when World War II veteran Lawrence Speiser applied for a veteran's property-tax exemption, California officials told him he had to swear a loyalty oath to the nation and the state. When he refused and was denied the tax benefit, he took
his case to the U.S. Supreme Court, and won.
That kind of loyalty oath in exchange for government benefits is gone, but a new kind of loyalty oath is alive and well in Washington. Cowering last summer from the political firestorm unleashed by photographer Robert Mapplethorpe's bodies and photographer Andres Serrano's crucifix, Congress ruled that no National Endowment for the Arts money could be used for work that the NEA chairman considered "obscene." And NEA Chairman John Frohnmayer decided to enforce his new mandate by exacting conformity oaths from artists.
NEA grants awards have thus arrived in the mail in recent months with strings attached. Recipients must certify that they will not produce "obscene" art with public money. No oath, no money.
Faced with this Hobson's choice, many artists, like latter-day Lawrence Speisers, have refused to sign. To the New School for Social Research, to theatrical producer Joseph Papp, to choreographer Bella Lewitsky, to the Los Angeles Festival the price of signing seemed higher than the price of the lost funds. And several have taken their objections to court.
These lawsuits are pending as the NEA's fate comes up again before Congress this fall. The refuseniks have a strong case. The oaths they won't sign trench too far on freedom of expression.
The key problem is not that the NEA is targeting so-called "obscenity"; for better or worse, the Supreme Court has already said that obscenity is not protected speech. But neither was subversive speech protected by the First Amendment when Speiser refused to sign a loyalty oath. The problem, now as then, is that it is unconstitutional for government to make people promise in advance to keep quiet--even if the First Amendment might not protect them once they open their mouths.
The reason is that such prior restraints chill too much speech. An artist who swears to forego unprotected obscenity will also steer clear of protected eroticism, for fear that it will come too close to the line. The problem with the NEA restrictions, as with the sword of Damocles, is not that they drop, but that they hang.
To make matters worse, the NEA oaths are a recipe for confusion, and confusion compounds self-censorship. For example, obscenity is supposed to be judged by so-called "community standards." But how is a lone artist supposed to guess what the "community" might veto? Which "community" anyway? Is Mapplethorpe art in San Francisco but soft porn in Cincinnati? Worse still, isn't "obscene art" a contradiction in terms? No project lacking "serious artistic value," as obscenity must, would ever have been funded by the NEA in the first place.
The NEA chairman should have listened to his national council advisory board last month when it told him to drop the oaths. His persistence may cost him in court.
But that surely must seem the least of his problems as Congress reconvenes with the NEA's fate still up in the air. To let the NEA live, some congressmen would exact as their price various hit lists of ideas the NEA may not support.
These conditions should be resisted. Content restrictions frustrate a public arts endowment's very reason for being: to make greater artistic innovation and creativity possible. The public sector can and should take risks on art too new or challenging to sell readily in the private market, not bow to the public's current taste.
Most of the content restrictions now circulating on Capitol Hill are not only unwise but also unconstitutional. The First Amendment bars government from enforcing orthodoxy--whether by punishing those who espouse unconventional ideas or by rewarding those who promise to give them up.
If the NEA bribes a Warhol to copy a Wyeth by attaching that string to a grant, it achieves the same result as it would by outlawing pop art. Either way, the world is made safe only for landscapes. Hit lists of forbidden ideas have no place in a free society, whether attached to carrots or to sticks.
This fall, both in the courts and in Congress, it is time to restore the NEA to its job as art patron, not vice squad. Oaths of conformity are more to be feared than any art should ever be. The NEA should unfetter its artists and Congress unbind the NEA.