COMMENTARY : NEA’s First-Amendment Win Still Leaves Hurdles

After months of contorted political posturing in the debate over reauthorization of the National Endowment for the Arts, the removal by the House and Senate of nearly all content restrictions on government-supported art stands as a resounding victory for First Amendment freedoms.

The reason is that those who rail against use of “taxpayer money” to fund programs that might offend some members of the public are in fact making a bizarre claim--specifically, that receipt of a public grant means an American citizen automatically surrenders the right to free expression. The reauthorization bill effectively debunks that dangerous idea.

Equally cheering is the sharp rebuke delivered to NEA chairman John E. Frohnmayer and his appalling, and unilaterally enforced, demand that grant recipients sign an anti-obscenity pledge. The pledge was a central plank in Frohnmayer’s chilling appeasement of political opponents of the agency he heads, a gesture that amounted to forcing artists and arts professionals to utter a loyalty oath. Thankfully, the NEA is now banned from any use of a written anti-obscenity certification.

So, there is much to be pleased about in the final deliberations over reauthorization. The outcome looks far more palatable than many feared it would only a few months ago, when common wisdom asserted that the question wasn’t whether content controls would be imposed, but how . Common wisdom has been proven wrong.

Still, all is not ideal. At least two features of the reauthorization plan make for bad policy. One is foolish. The other is frankly pernicious.

The foolish scheme could result in the transfer of more than one third of NEA funds to state arts councils by 1993, up from about 20% today. The plan evolved from a shockingly self-serving proposal last May (since rescinded) by Jonathan Katz, director of the National Assembly of State Arts Councils, to shift 60% of NEA funds to the states. Reps. Tom Coleman (R-Mo.) and Steve Gunderson (R-Wis.) subsequently backed the idea, whose likely effect was plain: A transfer from federal to state agencies would make the arts Establishment more beholden to local interests, which could apply so-called “local standards” in the absence of content restrictions on the National Endowment.

The NEA is important precisely because it is national, not local. In its democratically representative system of national peer-review, a diverse and changing roster of artists and arts professionals from across the country is periodically brought together in Washington to make decisions, and then disperse. Fluid consensus is reached, and a national network of informed constituents strengthens the fabric of the arts. Any plan to siphon off more money to the states, even at a reduced figure of 35%, marks a serious erosion of this concept. The NEA risks declining into a Provincial Endowment for the Arts.

The second, more pernicious feature of the $180-million funding bill requires the NEA to recoup grant funds used for art that is subsequently held by a criminal appeals court to be obscene. Any artist or any institution so convicted would have to return the grant money to the federal agency. On the face of it, the measure might seem a reasonable compromise between artistic freedom and legitimate concerns for accountability. In reality, it has plainly punitive uses.

Take the Cincinnati obscenity trial of Dennis Barrie, director of the Contemporary Arts Center where the controversial exhibition of photographs by Robert Mapplethorpe fueled the ire of the local sheriff. One reason the trial was a landmark is that art hanging in an American museum had never before been claimed by a prosecutor to violate legal standards for pornography. The jury, of course, sharply disagreed; they found the photographs were not obscene.

Given the three-ring circus surrounding this affair, however, it is easy to forget a simple fact sustained by the trial’s outcome: In its 25-year history, the National Endowment for the Arts has never once given funds to an exhibition or an artist whose work has been found obscene. Never .

In the utter absence of a clear and present danger, a legislative provision for punishing obscenity is obviously meant to appease political opponents of the NEA. But, given this purely political motive, it can easily be turned toward advancing purely political ends.

Consider that the Cincinnati trial has cost the Contemporary Arts Center more than $300,000 in legal defense fees, a figure that has put the financial stability of a wholly innocent institution in serious jeopardy. How many other nonprofit arts spaces around the country, including those run by artists themselves, could be effectively shut down by a zealous sheriff, prosecutor or politician through the financial insolvency that even ineffectual or failed prosecution could engender? And how many directors and governing boards of those institutions will, upon feeling the chill wind blowing at their necks, stand up for the art in which they believe?

This punitive measure, by suggesting danger lurks where there is in fact none, gives congressional encouragement to those who would seek to continue their assault on the arts, and to do so in the name of the very authorizing legislation of the National Endowment itself. The NEA has come a long way and surmounted remarkable hurdles in its current odyssey. Clearly, though, it’s not out of the woods yet.