When the Government Is a Critic

New York City Mayor Rudolph W. Giuliani, who threatened in true New York fashion to bring the Brooklyn Museum to its knees if it went ahead with an art exhibition that he finds “sick,” is only the latest in a none-too-distinguished line of government officials who decide to become art critics. The mayor’s most prominent precursor is Sen. Jesse Helms (R-N.C.), who, in 1989, objected vociferously to federal funding of a Robert Mapplethorpe exhibition on the ground that it was homoerotic, thereby launching a decade-long cultural battle over the National Endowment for the Arts. Five years earlier, Rep. Mario Biaggi of New York objected to NEA funding of a Metropolitan Opera production of Verdi’s “Rigoletto,” which he considered denigrating to Italians. Long before that, there was the Inquisition, which tried the painter Paolo Veronese in 1573 for his allegedly sacrilegious depiction of the Last Supper.

This cast of characters should be enough to illustrate why we need to limit government officials’ ability to mandate “politically correct” art. Giuliani’s heavy-handed tactics underscore the point. His objection apparently focuses on a single painting in a Brooklyn Museum exhibit that opened yesterday, Chris Ofili’s “Holy Virgin Mary,” a representation of the Virgin Mary with elephant dung on her breast. The mayor objects that the painting is anti-Catholic, which it may or may not be. (Ofili is himself a Catholic who attends church.) When ordinary people decide they don’t like such a painting, they generally stay away or turn away. But that’s not enough for the mayor. He dislikes this painting so much he doesn’t want anyone else to see it.

First, he threatened to cut off the museum’s $7 million in city funding if it proceeded with its long-planned (and, until Giuliani’s interest, barely noticed) exhibit. When the museum objected that such retaliation would violate the 1st Amendment, he grasped at other straws, arguing that the museum was violating its promise to be open to the public by restricting children’s admission to the exhibit. When the museum said it would post warnings and allow children to attend, he next charged that the museum was conspiring with an auction house to raise the value of the works exhibited and threatened to sue to take over the museum. No one has done more to raise the value of the works than the mayor himself, by drawing international, front-page attention to the exhibit and making it a cause celebre in the art world.

The mayor’s supporters--and he has many--contend that cries of censorship are unwarranted here, because the mayor is not saying Ofili can’t exhibit his painting, only that public money should not support the exhibition. Artists may have a right to speak, but they don’t have a right to have their art subsidized at taxpayer expense. In short, he who pays the piper calls the tune.

The argument appears sensible. It is surely different to throw an artist in jail for his speech than to deny him a government grant. The government has to be able to make some choices about the content and even the viewpoint of the speech it pays for: How else could it run an antismoking advertising campaign?

But a moment’s reflection shows that the conclusion that the government has a free hand to deny funding whenever it dislikes the content of speech it funds cannot be right. Virtually every form of public speech in this country is government-subsidized. The print media enjoys a multimillion-dollar subsidy in the form of second-class mailing privileges. The government gives the broadcast media free access to the airwaves, a commodity worth billions. Nonprofit advocacy organizations receive a tax exemption worth billions more. Public and private universities are subsidized through direct appropriations, financial aid to students and research grants to faculty. Every demonstration on public property is subsidized with taxpayer dollars required for security and maintenance.

In light of the prevalence of government subsidies, if the state were free to deny funds to those whose speech it finds disagreeable, freedom of expression would be rendered meaningless. The postmaster could deny subsidies to newspapers that criticized the president. Broadcast stations could be put off the air, nonprofit groups denied their tax exemptions and university faculty fired for expressing controversial views.

This is not a hypothetical concern. Such arguments were widely advanced in the 1950s and 1960s to justify legislative efforts to exclude suspected communists from public universities. The Supreme Court, however, ruled that such claims could not be squared with the principle of academic freedom protected by the 1st Amendment. As a result, even though no professor has a right to be on the government payroll, the court struck down as unconstitutional efforts to deny jobs to those who declined to take an oath against communism.

Two years ago, the Supreme Court had an opportunity to make clear that the same principle applied to public funding of the arts, in National Endowment for the Arts vs. Finley, which challenged a law that required the NEA to “take into consideration general standards of decency” in allocating arts grants. The lower courts held the law unconstitutional. But the Supreme Court ducked the issue, interpreting the statute not to bar funding of indecent or offensive art to be merely advisory. In doing so, however, the majority rejected the view, adopted by Justices Antonin Scalia and Clarence Thomas, that the government has a free hand when subsidizing speech.

The museum has sued the mayor, and its case should make clear that the 1st Amendment protects art against political retaliation. Giuliani has made his censorial motives clear: He’s attempting to punish the museum because he didn’t like the message he drew from one painting. He’s gone far beyond simply declining to fund the display of a particular painting; he’s threatened to revoke all the museum’s funding and to take the museum over. Thus, his actions are more properly viewed as using the power of the purse to impose a penalty than as a simple decision not to subsidize.

That Giuliani took such action in the face of strong legal precedent establishing its illegality illustrates why we need a Constitution. The mayor is no fool, and he certainly understands constitutional law; he was a highly regarded U.S. attorney before entering the political arena. But now he’s a politician who may think his shenanigans will improve his chances of being elected a senator from New York. He’s playing to the crowd.

The Constitution is designed to stop such demagoguery. It reflects a recognition that we, as a people, and politicians, as our representatives, will often be swayed from doing what’s right by what’s popular (or unpopular). The Constitution identifies basic commitments that we know we will be tempted to transgress but must not. The 1st Amendment’s protection of offensive speech has proved to be one of those guarantees most often transgressed, because it makes such an easy political target. But precisely for that reason, it is all the more critical that the 1st Amendment be defended, whatever we feel about elephant dung and the Virgin Mary. *