• Ruling hits artists where it hurts most

    • Posted on Jul 26, 1998


    Question: Should any U.S. taxpayers have to support art that they consider indecent?

    Answer: Of course not.  If artists want to make trashy art they should have to finance it themselves, or find patrons with similar taste.

    Question: Should U.S. taxpayers help to finance NEA grants that support artists who delve into realms that both illuminate and question basic cultural assumptions, and who do it with power and brilliance?

    Answer: Of course.  That’s what artists should do, and that’s what a great government arts program should do for artists.

    This whole dialog came to a halt one month ago today, when the U.S. Supreme Court delivered its opinion on whether decency should be used as one of the criteria for the National Endowment for the Arts selection policy.

    Writing for the majority, Justice Sandra Day O’Comor asserted that the NEA should take into account “general standards of decency and respect for the diverse beliefs and values of the American public” when choosing which applicants should be supported.

    Thus taxpayers won’t have to put up with the likes of performance artists Karen Finley, Holly Hughes, Tim Miller, or John Fleck, all of whom performed in projects that some people considered indecent, and which were initially supported by the NEA.

    When Jesse Helms objected to these artists’ work, their grants were rescinded.  They sued, and their case led to this Supreme Court decision.

    Yet doesn’t “decency,” like beauty, sit squarely in the eye of the beholder?

    Thus doesn’t the First Amendment protect artistic speech, whether some think that speech is decent or not?

    Seven of the Supreme Court justices thought not.  However, Justice O’Connor added, that if the NEA were to interpret their decision so as to “penalize disfavored (i.e. indecent) view points,” the court would have a problem, and they would probably have to rethink their decision.

    Seven Supreme Court justices, in other words, believe that the NEA cannot pay much attention to the decency standard, because if it does, the First Amendment will be violated.

    If justice here seem blind, it’s also clearly dumb.  For either the NEA uses the new standard or it doesn’t.  Actually rejecting grants in the name of decency amounts to “viewpoint discrimination,” and such discrimination is supposed to be illegal.

    Justice David Souter, the lone dissenter, says exactly that: “The question here is whether the (decency standard) is unconstitutional on its face.  It is.”

     “ … the Government has wholly failed to explain why the statute should be afforded an exemption from the fundamental rule of the First Amendment…”

    “The Court’s conclusions that the proviso is not viewpoint based, that it is not a regulation, and that the NEA may permissibly engage in viewpoint-based discrimination, are all patently mistaken.”

    Right on, Justice Souter, right on.

    Indecent Novels?

    Just for the sake of argument, suppose that novelist James Joyce and applied for a grant to write his novel “Ulysses.”  His novel topped the list of “One Hundred Best Novels of the Century,” published last week by the editorial board of the Modern Library.

     When “Ulysses” was printed in Paris in 1922, it was considered highly indecent.  New York customs agents literally burned copies of it before it was legally published in America in 1937.  Now it’s considered the best novel of the century.

    Good thing Joyce wasn’t discouraged by being turned down by the NEA.

    Indeed, I’ve read several dozen novels on that list, and nearly all of them contain “indecent” passages for some readers.

    Vonnegut’s “Slaughter-House Five,” for example, (18 on the list) has been banned in many high schools, as has Nabokov’s “Lolita” which sits fourth on the list.

    Philip Roth’s “Portnoy’s Complaint,” 52 on the list, was widely considered to be obscene, if not pornographic, when it was published in 1969.

    If novelists depended on government funding, we’d all be reading Jesse Helms-approved novels. 

    And anyone who doesn’t feel a chill going up their spine at that thought doesn’t have a pulse.


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