Discerning patronage is not censorship Court case: If government supports the arts, it must decide which ones.

December 02, 1997

THE SUPREME COURT has now agreed to decide with finality whether government may consider "general standards of decency and respect for the diverse beliefs and values of the American public," when making grants to artists.

To some, this is infringing the freedom of speech, which the First Amendment forbids Congress to do. But every member of Congress is held accountable by constituents for every penny appropriated, and must say what it should be for.

In this debate, we must distinguish between the government as patron of the arts and the government as cop. Government need not be the first but must be the second. The government as cop has no constitutional right to censor material which violates general standards of decency. It does not, as a cursory look at cable television or magazine racks attest.

But if the federal government, acting through the National Endowment for the Arts, is to replace kings as patron of the arts -- a vital function in promoting national unity through culture and in enriching the lives of citizens -- it is going to make aesthetic judgments.

This, as Judge James R. Browing said for the Ninth Circuit Court of Appeals in overturning the standards, "gives rise to the danger of arbitrary and discriminatory application." That's what artistic discernment is. Anything other than competitive bidding for contracts gives rise to that danger.

If Congress is to authorize agencies to award art grants, Congress must say what the grants are for. It may not legislate standards of art for the American people, but must legislate standards for the art it buys.

In this case, four performance artists are suing for grants that the 1990 law, as interpreted by the NEA, denied to them. The law was enacted following uproar over images offensive to viewers in art exhibitions that were funded with NEA help. Those were provocative decisions by grant-giving juries, and congressmen rose with demagogy to the bait.

If the Supreme Court allows Congress to set no standards, it will fund no art. The performance artists who feel entitled to be subsidized by the taxpayers whose sensibilities they feel obliged to startle would have the satisfaction of knowing that what grants they cannot get, no one can. The Supreme Court cannot compel Congress to support the arts.

Better to accept the challenge of trying to establish art worthy of the nation. The high court has a muddy record on the edge of this issue. Hearing this case gives it a chance to either impose clarity or add cobwebs. Justices, like artists and patrons, take risks.

Pub Date: 12/02/97

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