Pyrrhic Victory for Artistic Freedom

July 12, 1992

The ironies that flow from the intersection of art, law and politics were underscored again when a U.S. District Court judge in Los Angeles recently ruled that the government not only has no right to control the political content of federally funded art but may not even consider "general standards of decency" when awarding grants.

The decision grew out of a lawsuit filed by four performance artists -- the so-called "NEA Four." They claimed the National Endowment for the Arts improperly rejected their grant applications on political grounds. One of the artists, Karen Finley, became widely known for a performance in which she smeared chocolate on her breasts. The other three -- Holly Hughes, Tim Miller and John Fleck -- deal with gay themes in their work. All argued that the NEA rejected their grant applications in order to protect President Bush from political embarrassment in an election year.

The NEA insists its decision was based purely on "artistic merit," not politics. Earlier this year, the agency became embroiled in controversy when GOP presidential candidate Pat Buchanan threatened to make federal funding of "dirty art" an issue in the primaries. President Bush responded by firing then-NEA Chairman John Frohnmayer and appointing Anne-Imelda Radice as acting chairwoman. Ms. Radice has said she opposes funding sexually explicit art. But the agency denies that was a consideration in the case of the NEA Four.

Judge A. Wallace Tashima thought otherwise. "The right of artists to challenge conventional wisdom and values is a cornerstone of artistic and academic freedom," he observed. A law allowing NEA officials to reject grants based on "general standards of decency" was unconstitutionally vague, he ruled, adding the government does not have "free rein to impose whatever content restrictions it chooses" on federally funded art. The ruling means the case will go to trial, with the artists out to prove they were improperly denied funding.

The long-term consequences of the ruling, however, are far from clear. It probably will not alter NEA's trend away from controversial projects, because the agency can always cite "artistic merit" as grounds for rejection.

The greatest danger is that public dismay over the "decency" portion of the ruling could sour support for arts funding generally -- most of which goes to subsidize mainstream organizations such as symphony orchestras, museums and theater companies. All would suffer from a backlash that cut off federal arts funding.

Judge Tashima's decision seems certain to provoke the kind of conservative ire that would make it, at best, a Pyrrhic victory for the avant garde. It also may be overturned on appeal. Even if it is not, we fear its ultimate effect could be irreparable harm to the very artists who now see in it a vindication of the "right to freedom of expression."

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