Court Jesters

In 1990 the National Endowment for the Arts declined to subsidize performance artists Karen Finley, John Fleck, Holly Hughes, and Tim Miller. The "NEA 4" have been milking their martyrdom ever since.

"When the force of the federal government lands on your neck," says Hughes, "you do not walk away unscathed." But you do walk away famous. "It does make you more visible," she concedes. "It's paradoxical that an attempt at censorship draws all this attention."

In the end, the NEA 4 had it both ways: They gained notoriety and admiration by offending Jesse Helms, and they got their grants (plus legal expenses) by filing a federal lawsuit. They argued that the NEA's guidelines were impermissibly vague and imposed content-based restrictions on protected speech, in violation of the Fifth and First amendments. A district judge agreed, the U.S. Court of Appeals for the Ninth Circuit affirmed that decision last year, and the Supreme Court has just accepted the case for review.

At issue is an amendment Congress passed in 1990, responding to the uproar about NEA funding of controversial artists such as Robert (Bullwhip in Rectum) Mapplethorpe and Andres (Crucifix in Urine) Serrano. Congress instructed the NEA, when doling out taxpayers' money, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public." That's a daunting barrier for performers who like to talk dirty, parade around in the nude, urinate on stage, and spread food on their naked bodies.

But it's not exactly censorship. As Judge Andrew J. Kleinfeld observed in his dissent from the Ninth Circuit's ruling, artists "are constitutionally entitled to express themselves indecently and disrespectfully toward the beliefs and values of as much of the American public as they like. [But the fact] that offensive or indecent expression cannot be censored does not mean that the government has to pay for it."

Kleinfeld distinguished between government benefits that are available to all speakers who meet certain general criteria, such as tax exemptions and parade permits, and government benefits that are awarded to a select few, such as NEA grants. In the former case, he argued, content-based restrictions run afoul of the First Amendment. In the latter case, he said, they are not only permissible but unavoidable.

"When the government gives a prize rather than an entitlement," Kleinfeld wrote, "it necessarily discriminates by content and viewpoint." The NEA is supposed to award grants based on "artistic excellence," for example, but this concept is no less vague than "general standards of decency."

Consider a couple of examples. Karen Finley, who used to smear herself with chocolate and alfalfa sprouts (symbolizing feces and sperm), recently has been showing audiences films in which she paints "with milk squirted from her breasts" and "wanders nude through an art gallery." Tim Miller's latest act features "an anxious safe-sex monologue performed in the nude with clothespins clipped to various parts of his body."

Is this stuff art? Is it excellent? (For the record, The New York Times noted Finley's "limitations as a writer and her tendency to belabor the obvious to the point of numbness," while the San Francisco Chronicle found Miller "precious and hyperbolic.") In judging artistic excellence, NEA reviewers are inevitably influenced by the message they think the applicant is trying to communicate. How would Miller fare if he were heterosexual? What if Finley were a straightforward stripper, instead of an "anti-erotic" performance artist?

It's no use pretending that content-based restrictions on NEA grants were introduced by Congress in 1990 and can be eliminated simply by striking the offending amendment. As long as the government gives money to a few lucky artists, it will have to consult someone's prejudices to determine who is worthy.

If that fact troubles you, there's an easy solution: Abolish the NEA. Since private giving to the arts amounts to 100 times the NEA's budget (leaving aside the billions Americans spend for their own entertainment and edification), culture probably would survive.

There's another way of looking at it, though. The NEA costs less than a dollar per taxpayer each year. For pennies a month, we get to witness the amusing spectacle of supposedly subversive artists who expect to be funded by the government, who sue when the money is not forthcoming, and who keep whining all the way to the bank. The NEA may just be the best entertainment value around.