FREE
EXPRESSION IN ARTS FUNDING
A PUBLIC POLICY REPORT
Free Expression in Arts Funding: A Public Policy Report,
copyright 2003. This report may be reproduced in its
entirety as long as the Free Expression Policy Project
is notified and credited, and a link to the Project's
Web site is provided. The report may not be reproduced
in part or in altered form without permission.
Research and Drafting: Christino Cho, Kim Commerato,
Marjorie Heins
Additional Research: Elizabeth Weill-Greenberg
Editing & Design: Stephanie Elizondo Griest
Grateful thanks to Kelly Barsdate, Roberto Bedoya, Thomas
Birch, Bethany Bryson, Jennifer Dowley, Maryo Ewell,
David Greene, Joan Jeffri, Robert Lynch, Nan Levinson,
Norma Munn, Virginia Rutledge, Steven Tepper, and Julie
Van Camp for helpful comments, criticisms, and corrections.
TABLE
OF CONTENTS
EXECUTIVE SUMMARY
FOREWORD by Svetlana Mintcheva, Arts Advocacy Coordinator,
National Coalition Against Censorship
INTRODUCTION
Why We Undertook This Survey
How
We Conducted the Research
I. BACKGROUND
Challenges to Free Expression in Arts Funding: From
Serrano and Mapplethorpe to the "Decency and Respect"
Law
The
Politics of Arts Funding: Accountability and Free Expression
State
and Local Arts Funding
The Growth of State and Local Agencies
Four
Controversies of the 1990s
Cobb County, Georgia
Charlotte/Mecklenburg, North Carolina
San Antonio/Esperanza
The Brooklyn Museum and "Sensation"
II. FREE EXPRESSION POLICIES AMONG STATE AND
LOCAL ARTS AGENCIES
State Laws Recognizing Artistic Freedom
State
and Local Agency Policies Relating to Artistic Freedom
State Policies That Reinforce Statutory Language
States That Shy Away From Explicit Free-Expression Policies
States That Promote Artistic Freedom Absent Specific
Statutory
Language
Local Policies
Policies Limiting Artistic Freedom
III. EXPERIENCES WITH FREE EXPRESSION POLICIES,
AND PROCEDURES FOR HANDLING CONTROVERSY
How Have Free Expression Policies Fared in Practice?
Procedures
For Anticipating and Handling Controversy
CONCLUSION
RECOMMENDATIONS
ENDNOTES
APPENDIX
A: STATE AGENCIES [only available in pdf version]
APPENDIX B: SAMPLE OF 104 LOCAL AGENCIES [only available
in pdf version]
EXECUTIVE
SUMMARY
In
1989, government arts funding in the United States came
under vitriolic political attack. In the wake of complaints
about taxpayers' money being spent on offensive, "pornographic,"
or "blasphemous" works, and in the face of
threatened cutoffs of funding, the National Endowment
for the Arts began to retreat from supporting potentially
controversial artwork. State and local funding agencies,
although less vulnerable to attack, could not help but
be aware of the political risks of supporting provocative
art. As the crisis deepened, many leading arts organizations
shied away from outspoken advocacy of free expression
for artists and arts institutions that receive government
grants.
Yet artistic freedom in the context of public funding
remains a critical issue. The ability to make challenging
art that can explore all facets of the human condition,
including unpleasant ones, is essential to a vibrant
culture and a healthy democracy. Neither private philanthropy
nor the mass media conglomerates that dominate commercial
entertainment can be counted upon to support the give-
and-take of diverse viewpoints, reflected through literature,
theater, music, film, and other visual art, or to provide
visibility for the multi-layered, varied, and inventive
cultures of America.
The
question, more than a decade after the attacks on the
NEA began, is whether government arts funding can maintain
a commitment to free expression even when some funded
works or artists are unconventional, or where political
and moral entrepreneurs seek to sensationalize, distort,
and drum up political opposition to provocative art.
This report seeks answers to that question by surveying
free expression policies among state and local arts
agencies.
After
an introduction providing background and analysis of
the funding controversies of the 1990s, the survey section
of the report begins by identifying language supportive
of artistic freedom in state arts agencies' enabling
statutes as well as state and local agencies' public
pronouncements. But as the survey shows, a statement
in support of free expression without policies to implement
it may be ineffectual. Hence, the report goes on to
investigate how different agencies interpret their policies;
what experiences they have had in implementing them;
what, if any, procedures are in place for anticipating
and handling controversies; and whether - instead of
supporting free expression - they impose any ideological
or morality-based restrictions on grantees' work.
The
survey reveals that the majority of state arts agencies
(and some local ones) have free expression statements,
though in many cases they are buried in the state law
books, not publicized, and not translated into live
policies. A few agencies that announced free expression
policies in the 1990s no longer publicize them. The
vitality of such policies, and the agencies' commitment
to defending them, vary widely, depending on many factors
including the political atmosphere in the particular
state or locality; the extent to which legislators are
likely to seize on symbolic "culture war"
issues; and the strength and character of leadership
in the funding agency and the local arts community.
Some
agencies with free expression policies nevertheless
are politically cautious in their grant-making. A few
have ambiguous policies that recognize both artistic
freedom and the need for political accountability. Yet
agencies that have weathered controversy and even experienced
cutbacks or ideological restrictions on grant-making
sometimes recoup their losses and emerge from the process
stronger than before.
Only
a few agencies have official procedures for anticipating
and responding to arts funding controversies. Among
those that do, philosophies vary, with one agency relying
on a crisis manager and "ad hocracy" rather
than staff and arts leaders in the community. Whether
this is the best strategy is open to question, but it
is clear that procedures and preparation are crucially
important in setting the terms of the debate and managing
it effectively. The report concludes that strong, savvy
leadership, proactive outreach campaigns, good communication
with legislators, responsiveness to the media, and a
refusal to compromise on basic principles are keys to
defending free expression in government arts funding.
FOREWORD
By Svetlana Mintcheva,
Arts Advocacy Coordinator, National Coalition
Against Censorship
Creative art has traditionally enjoyed a conflicted
relationship with money: art is always aspiring to be
free of economic constraints, but artists can only be
free of economic constraints if they have inherited
wealth. One resolution of this conflict is the patronage
system. With the development of modern democracies in
Western Europe, the role of the patron passed from the
wealthy individual to the state. As numerous studies
point out, European countries spend a substantial amount
of money in support of the arts. Though committees allocating
funds surely have their politics and agendas, for all
appearances, state patronage comes with full respect
for artistic freedom. Art scandals occur with predictable
regularity, but not under the banner – so familiar
by now in the U.S. – of “not with my tax
money.”
While American artists inherited the belief that art
transcends money, few of their fellow countrymen agreed
that art should not have to prove its worth in the marketplace.
Government support for the arts began only at the end
of the 19th century under the justification that art
could be educational and morally ennobling. In the relative
homogeneity of dominant values at that time, the fact
that morally ennobling could mean different things to
different cultural groups was not an issue.
In the mid-20th century, the Cold War made art useful
in a new way: as a political weapon. The creative freedom
of American artists demonstrated the superiority of
the American system no less vividly than its consumer
products. It was in this brief period that the NEA was
founded, with its initial mandate to stimulate the “freedom
of thought, imagination, and inquiry.”
With the end of the Cold War, demonstrating the freedom
of American artists was no longer politically useful.
In the meantime, government funding for the arts had
grown and state and local art councils were supporting
a wide range of creative production coming from underrepresented
minorities. When religious groups singled out “offensive”
art as a cause around which to mobilize their constituencies,
they savvily protested not the art itself, but the public
funds that went to its creators. Countering that line
of attack with the First Amendment obligation of government
not to discriminate against artwork based on the viewpoint
it expresses can lead to Pyrrhic victories: under pressure
an art program can be terminated; art councils can be
defunded.
One very interesting finding in FEPP’s report
on art funding and free expression is that free expression
policies have not had much occasion to be tested. That
is certainly not because there is no controversial art:
our experience at NCAC clearly indicates that art censorship
did not end with Mapplethorpe and Serrano. Might it
be that, when funding decisions are made, budget cuts
and the attacks of conservative legislators loom larger
than free expression policies?
And really, why should the public pay for art that criticizes
its beliefs? If art was originally granted government
support for its educational and morally elevating value,
then art that challenges mainstream moral values might
not qualify for that support. The problem here is that
there is no consensus over what purpose government funding
for the arts should serve. Should it reinforce the crumbling
dominance of “traditional values” or reflect
the real conflicts flashing across a diverse social
fabric? Should it be limited to “uncontroversial”
educational programs and leave hard-to-control artists
to their own devices and the marketplace? Should it,
on the contrary, unfold a dialogue between conflicting
beliefs in the relatively safe space of symbolic expression?
Under every answer given, there lingers the shadow of
its opposite.
Legislators agree that funding for art is important
because art serves an educational purpose and is good
for local economies. Other benefits are mentioned, like
its importance to the cultural image of a community,
but the argument that art might be worthy of support
precisely because it can open dialogue about sensitive
and controversial issues is solely to be found when
an art censorship incident flares up. Outside the hothouse
of academia one can rarely hear a public defense of
controversial art based on the importance of challenging
set beliefs and dominant values. It seems that for art
institutions concerned about their funding, the less
said about the potential of art to be controversial,
the better. Unfortunately, that leaves them vulnerable
to attacks when some group decides to protest public
funding for a work that could be seen as critical of
their values.
It becomes clear from the FEPP report that a free expression
policy is only the first step (however hard it is to
make even that first step in some states). A policy
not backed up by a procedure for anticipating and handling
controversy at most declares a good intention. Funding
cuts have put art councils in a precarious situation
where they are particularly vulnerable to the attacks
of religious groups and conservative legislators intent
on gathering easy political points. To complicate matters
further, artists are, more than ever, determined to
question dominant values. The challenge for all art
institutions is to take a principled position on free
expression, while at the same time not alienating their
audience and keeping their funding. The research, analysis
and recommendations offered in the FEPP report provide
both a map of the field and ways to negotiate its pitfalls.
INTRODUCTION
Why
We Undertook This Survey
In
April 1989, a small federal agency called the National
Endowment for the Arts became front-page news. Reverend
Donald Wildmon of the American Family Association learned
that the agency had supported an exhibit of work by
award-winning artists at a museum in North Carolina.
Among the works exhibited was Piss Christ, by the Brooklyn
artist Andres Serrano - a large, luminous photograph
of a plastic crucifix immersed in a shimmering gold
liquid. Only the title indicated that the liquid was
urine.
Wildmon
understood the public relations potential of this provocatively
titled work, and on April 5, 1989, he sent a letter
to his supporters that began, "we should have known
it would come to this," and went on to complain
of Piss Christ and other instances of "anti-Christian
bias and bigotry found in various parts of our society."1
Senator Alphonse D'Amato, too, realized the political
capital to be gained by condemning the NEA's use of
tax money to support an award to Serrano; and he organized
an outraged letter of protest, asserting that "this
matter does not involve freedom of artistic expression
- it does involve the question whether American taxpayers
should be forced to support such trash."2 At a
Senate debate on May 18, Jesse Helms eagerly joined
D'Amato's crusade. Serrano "is a jerk," he
said, but "let him be a jerk on his own time and
with his own resources. Do not dishonor our Lord. I
resent it and I think the vast majority of the American
people do. And I also resent the National Endowment
for the Arts spending the taxpayers' money to honor
this guy."3
Thus
began the arts funding wars that dominated headlines
for much of the 1990s. Serrano's explanation that his
work was not meant to be blasphemous, but to explore
the many meanings of bodily fluids and critique the
cheapening of sacred symbols,4 was drowned out by a
deluge of sensationalist attacks. From the much-maligned
Piss Christ to the photographs of Robert Mapplethorpe,
from the performance art of Karen Finley to gay and
lesbian film festivals, politicians, religious-right
leaders, and much of the mainstream media joined in
condemning provocative, controversial, or "indecent"
art, and questioning the propriety of government support.
The issue was obviously symbolic, since the NEA's actual
expenditures on controversial art were small; but it
was deeply resonant with many members of the public.
Underlying D'Amato's and Helms's rhetoric was the assumption
that, because government provides funding to art, political
leaders (or pressure groups that can produce voluminous
mail from constituents) should have a veto over the
subject, style, or viewpoint of work that is funded.
Defenders of the NEA responded that where government
supports a wide range of artistic expression and is
looking for the best that our many-sided culture has
to offer, it is not only unwise as a matter of public
policy, but is a violation of the First Amendment, to
impose moral or ideological restrictions on what grant
recipients can create, exhibit, produce, or perform.
In other words, so these advocates argued, there is
a distinction between government-commissioned art, which
expresses an official viewpoint, and government support
for diverse artistic expression by private individuals
or groups. Awards from the NEA fit in the second category
because they support a variety of viewpoints, including
perspectives of minorities and previously marginalized
groups, and not just officially approved, politically
correct, or "nice" art.5 In this sense, government
arts funding is like government support for libraries,
museums, and universities - institutions whose very
purpose is to provide a mix of information and ideas.
These institutions are society's investment in culture,
creativity, and the dialogue essential to democracy.
Ideological or moralistic restrictions distort these
purposes by allowing only expression that is conventional,
inoffensive, unrepresentative of minority viewpoints,
and otherwise unchallenging to the status quo.
But however persuasive these arguments for free expression
in arts funding may be, they were drowned out in the
political arena, where highly charged soundbites, and
misrepresentations about the meaning of challenging
works, continued to dominate the popular press. Legislators
had only to brandish such provocative images as Robert
Mapplethorpe's photographs of leather-clad sadomasochists
to garner headlines and foment outrage. In the course
of the 1990s, the NEA was nearly eliminated even though
its leaders tried to placate Congress and avoid controversial
grants.
As the Endowment fought for survival, much of the arts
establishment - major museums, foundations, and arts
service groups - tried to stay below the radar and distance
themselves from the artists under attack. The National
Campaign for Freedom of Expression (NCFE), a now-defunct
advocacy group that represented the more cutting-edge
artists and venues, later described "the silence
of mainstream cultural organizations" as "deafening."
6 The chilly climate pervaded government arts funding
even when grant denials were not overtly censorious:
artists seeking grants, art and theater groups, and
funding agencies began to shy away from potentially
controversial work. By the mid-to-late 1990s, free expression
in arts funding became an issue that was not frequently
or eagerly discussed.
But it is too important an issue to buried. Within the
mix of resources supporting culture - a mix that also
includes for-profit investment, private foundation support,
and individual philanthropy - it is government funding
that has the capacity and obligation to represent all
Americans. Public funding not only preserves the great
art of the past and makes it accessible throughout the
country, but it supports diverse and popular arts that
may never be recognized by for-profit commercial culture.
Both of these functions are threatened by restrictions
on grant recipients' free expression. As the National
Assembly of State Arts Agencies (NASAA) observed:
Attacks on artistic content encourage an environment
in which hostility flourishes and creativity suffers.
Restricting the range of images and ideas available
to the public ultimately stifles the creativity and
the "marketplace of ideas" that are basic
requirements for a democratic society.7
How We Conducted the Research
Believing that free expression remains a critically
important element of arts funding, the Free Expression
Policy Project in 2001 began a survey of relevant state
and local arts agency policies. The turmoil of the 1990s
undoubtedly affected these agencies, which, even before
the downsizing of the NEA, were responsible for the
great bulk of government support for the arts in the
U.S.8 Our purpose was to learn how many agencies have
free expression policies, and to what extent such policies
are incorporated into their decision-making process.
Have state and local agencies been able to fund controversial
art and respond successfully if protest ensued? Do they
have procedures in place for anticipating and handling
controversy? How many responded to the controversies
of the '90s by incorporating restrictions similar to
a requirement that Congress imposed on the NEA in late
1990 - to consider "general standards of decency"
and "respect for the diverse beliefs and values
of the American public" in awarding grants?
We limited our survey to explicit free-expression statements
and policies. Many state laws or agency policies refer
to "encouraging" or "supporting"
creative expression. (Indeed, these are the very purposes
of arts funding.) But such general language is no substitute
for an explicit policy supporting artistic freedom.
How do we define free expression or artistic freedom?
The NCFE gave a good definition in 1998. "Freedom
of artistic expression," it said, is the principle
that an artist should be unrestrained by law or convention
in the making of his or her art. … Artistic freedom
is threatened when art is challenged because of its
content, message or viewpoint, rather than because of
its aesthetic qualities or artistic merit.9 Such challenges
can take place in any context, including public funding.
We began our survey by contacting regional arts groups
such as the Mid-America Arts Alliance and Arts Midwest,
as well as the national service organizations Americans
for the Arts (which represents local agencies) and NASAA
(which represents state agencies), to learn what information
and suggestions they might have. Having determined that
the data we sought were not available elsewhere, we
scanned the Internet for state arts agency Web sites,
and checked there for statements either promoting free
expression or, conversely, restricting the content or
viewpoint of funded art.
We then attempted to interview officials at each state
agency that we found had a statement of either type,
to learn how, if at all, the statements were reflected
in agency policies. Agencies varied widely in their
responses - some officials were eager to talk about
the issue and gave in-depth interviews; others responded
briefly to specific questions; still others did not
respond at all.
In the interviews, we asked not only about the genesis
and visibility of their free expression statements and
policies, but about experiences applying them in actual
funding controversies. We asked whether they had procedures
in place for dealing with controversies over funded
art; and what suggestions or recommendations they had
for protecting free expression in the funding process.
As the research progressed, we discovered that many
agencies have free expression statements in their enabling
statutes, even though the statements are not found on
the agencies' Web sites. We expanded our pool of potential
interviewees to include these agencies as well. Appendix
A lists all state agencies, the free-expression statements
or policies we found, the interview attempts we made,
and the actual interviews or e-mail correspondence that
ensued.
We also surveyed 104 city and county arts agencies,
out of the more than 2,500 listed in Americans for the
Arts' 2000-2001 Field Directory. Our random sample of
100 included an approximately equal number of agencies
in large urban areas, rural areas, and mid-sized localities.
We added to the sample the arts councils in Cobb County,
Georgia, Charlotte/Mecklenburg, North Carolina, San
Antonio, Texas, and New York City, because of their
particular experiences with funding controversies. (See
below.) As with the state agencies, we then conducted
a Web search for statements either promoting or limiting
artistic freedom in the funding process, and followed
up with attempted interviews of those that either had
an online free-expression statement, or that had no
online presence.10 (Some of the local agencies are very
small and lack office space; a few of them list the
home phone numbers of their directors as their official
contact information.) Appendix B lists the local agencies
we surveyed, the statements we found, the calls we made
requesting interviews, and the actual interviews or
other communications that took place.
Our research was limited to arts funding. Questions
about the display of controversial art in government
exhibit spaces were not within the scope of our study.
Disputes over such displays sometimes do merge with
questions about funding, however, since many local arts
agencies also operate exhibit spaces. And the policy
issues are often similar as well - in particular, the
dilemma that results when a legal rule prohibiting censorship
at government venues results in a decision by public
officials to end a public art program entirely.11
We hope this report will be useful to artists, arts
advocates, policymakers, scholars, arts institutions
and service organizations, government and corporate
funders, and all others interested in public arts funding,
support of our diverse cultural heritage, or free expression.
I.
BACKGROUND
Challenges to Free Expression in Arts Funding: From
Serrano and Mapplethorpe to the "Decency and Respect"
Law Senators Helms and D'Amato were not the only political
leaders excoriating the National Endowment for the Arts
for supporting an exhibit that included Andres Serrano's
Piss Christ, in the spring of 1989. Twenty-three senators
signed an open letter to the NEA expressing outrage
and urging that it "comprehensively review its
procedures and determine what steps will be taken to
prevent such abuses from recurring."12 Soon, close
to 200 federal legislators, prodded by media sensationalism
and constituent complaints, contacted the Endowment.
Its acting chair, Hugh Southern, responded that the
criticism was legitimate and that the agency would be
reviewing its procedures.13
But before the NEA or the arts world could do much to
regroup from the attack on Serrano or publicize the
serious, non-blasphemous intent of his work, a second
occasion for outrage presented itself. On June 8, 1989,
Representative Dick Armey and 107 fellow congressmen
wrote to the Endowment criticizing its support of Robert
Mapplethorpe: The Perfect Moment, a traveling exhibit
of works by the recently deceased photographer that
included some highly provocative homoerotic images in
a show that was predominantly elegant nudes, portraits,
and flowers. Four days later, the Corcoran Gallery of
Art in Washington, D.C., in an attempt to avert further
public relations damage, cancelled its scheduled showing
of The Perfect Moment.
The cancellation triggered angry protest from art lovers,
which brought even more attention to Mapplethorpe. The
Washington Project for the Arts presented The Perfect
Moment at its own gallery space after the Corcoran cancellation.
And, while Donald Wildmon and other religious-right
leaders continued to capitalize on the situation through
inflammatory public statements, press releases, and
constituent fund appeals,14 Congress began to consider
the first of many "legislative retaliations"15
against the NEA.
Later in 1989, Congress passed its first "content
restrictions" on NEA decision-making. Commonly
known as the Helms Amendment, this law prohibited grants
to works that, "in the judgment of" the agency,
"may be considered obscene," including specifically
depictions of "homoeroticism" or "individuals
engaged in sex acts." The NEA implemented the law
by requiring grant recipients to sign a certification
of compliance. The certification requirement was challenged
and struck down by a federal court in 1991.16
By this time, Congress had supplemented the Helms Amendment
with another proscription, the 1990 "decency and
respect" law. This law was inspired by the report
of a prestigious "Independent Commission"
of cultural leaders and constitutional law scholars.
The commission recommended an arts funding policy that
would avoid the First Amendment pitfalls of denying
funding to work because of a controversial viewpoint,
but would nevertheless convey the need for "accountability
and sensitivity" in funding decisions.17 Many NEA
supporters and others in the arts world felt that the
resulting law was an acceptable compromise: it simply
directed the agency to "take into consideration
general standards of decency and respect for the diverse
beliefs and values of the American public" in awarding
grants.18 Others, however, felt the law clearly sent
a message that any controversial art must be avoided.
It was soon challenged in court, in the case of National
Endowment for the Arts v. Karen Finley et al.
The case began in 1990 after journalists learned that
an NEA peer panel had recommended small grants to four
performance artists - John Fleck, Karen Finley, Holly
Hughes, and Tim Miller - whose work dealt with gender
and sexual politics in provocative, outspoken styles.
Amid lurid press coverage that highlighted a powerful
Finley performance piece called We Keep Our Victims
Ready, which included the artist's smearing her nude
body with chocolate to symbolize society's abuse of
women, legislators began to pressure then-NEA chair
John Frohnmayer to reject the grants. Frohnmayer eventually
did so, and the four artists sued, claiming that the
rejections were politically motivated, in violation
of the agency's standards and procedures as well as
the First Amendment. Soon dubbed "the NEA Four,"
they amended their lawsuit the following year to challenge
the decency and respect law, and a new plaintiff, the
National Association of Artists' Organizations, joined
the suit.19
Outside the courts, efforts to eliminate the Endowment
accelerated after the election of 1994, which brought
a conservative, "Contract With America"- dominated
Congress to Washington. In 1995, Congress cut the NEA's
budget by 40% and outlawed most grants to individual
artists. The actress Jane Alexander, who chaired the
Endowment from 1993-97, restructured it to eliminate
genre-specific grants for the visual arts, dance, theater,
and other disciplines. She replaced them with generic
categories: "creation and presentation," "education
and access," "heritage and preservation,"
"planning and stabilization."20
Alexander later wrote poignantly of her struggles to
build appreciation for artistic freedom while simultaneously
keeping the agency alive by restructuring it to eliminate
possible points of political attack. By 1995, though,
she was weary of the endless lobbying and strategizing
among politicians whom she found opportunistic, hidebound,
and homophobic.21 The rest of the arts community - with
a few notable exceptions - tried to preserve funding
by emphasizing the economic and social benefits of government
support for the arts, encouraging more accountability,
and avoiding any mention of the First Amendment.
In the courts, meanwhile, the federal government failed
to get the Finley case dismissed, and finally agreed
to settle with the four artist-plaintiffs. It paid them
the amounts of the grants they would have received if
not for political interference. The case continued as
a First Amendment challenge to the decency and respect
law.
The lower courts ruled that the law was unconstitutional
- even in the provision of funds, they said, the First
Amendment bars government from imposing conditions that
are unduly vague or censorious.22 But in 1998, the Supreme
Court reversed. It upheld the law largely by interpreting
the decency and respect standard to be only advisory,
and finding no evidence that it had actually harmed
any applicant.
The decision made clear, however, that the First Amendment
does apply to the arts funding process. "Even in
the provision of subsidies," Justice Sandra Day
O'Connor wrote for the Court, "the Government may
not 'aim at the suppression of dangerous ideas.'"
If the NEA "were to leverage its power to award
subsidies on the basis of subjective criteria into a
penalty on disfavored viewpoints, then we would confront
a different case."23
Thus, the Supreme Court did not adopt the position of
many NEA foes - that simply because government funds
art, it may impose any restrictions that it chooses,
or that it feels compelled to apply because of pressure
from Congress, the White House, or members of the public.
As many observers have pointed out, however, this legal
rule forbidding "viewpoint discrimination"
in government grant-making does not do artists, arts
institutions, or the public much good if those controlling
the government funds, whether in Congress, state legislatures,
or city councils, choose to eliminate support for the
arts entirely because they are offended by some of the
end results.24
The Politics of Arts Funding: Accountability
and Free Expression
From the beginning of the funding wars, members of the
arts community differed on the best strategic response.
Most agreed that however broadly the First Amendment
protects sexually explicit or otherwise controversial
art, there must be "accountability," and an
awareness of political realities, when it comes to government
funds. Yet accountability is a broad and slippery term.
If it means fiscal responsibility, adherence to high
artistic standards, a well-structured grant-making process,
and attention to the diverse cultures represented in
a state or city, well and good. If it is meant as a
euphemism for avoiding anything challenging or potentially
offensive, then much of the purpose of public arts funding
is undermined.
At the NEA's creation in 1965, it was bathed in a halo
of artistic freedom. The Senate committee that prepared
the law which created both the NEA and the National
Endowment for the Humanities wrote:
It is the intent of the committee that in the administration
of this act there be given the fullest attention to
freedom of artistic and humanistic expression. One of
the artist's and humanist's great values to society
is the mirror of self-examination which they raise so
that society can become aware of its shortcomings as
well as its strengths. … Countless times in history
artists and humanists who were vilified by their contemporaries
because of their innovations in style or mode of expression
have become prophets to a later age.25
The NEA law itself announced that "it is necessary
and appropriate for the Federal Government to help create
and sustain not only a climate encouraging freedom of
thought, imagination, and inquiry but also the material
conditions facilitating the release of this creative
talent."26
In the 24 years that followed, occasional complaints
from politicians about controversial grants - for example,
a set of "blistering" letters from Jesse Helms
to the NEA in 1975 regarding novelist Erica Jong's sexually
provocative bestseller Fear of Flying - were answered
by NEA officials without extended sensationalist publicity
or harm to its funding. And the agency survived the
Reagan Administration's attempts to cut it in half,
thanks to "a firestorm of opposition, much of it
from mainstream Republicans who sat on boards of directors
of museums and symphonies around the country."27
Yet in 1989, as cultural scholar Kevin Mulcahy has observed,
"what should have been a political side show that
the NEA could have routinely survived developed into
a kind of Kulturkampf, that is, a struggle over the
legitimacy of public support for the arts." And
"the range, intensity, and impact" of the
attacks were "too great to be dismissed as solely
a delusion of the ideological fringes. In the minds
of many moderate citizens and their elected representatives,
the NEA became labeled as one of the nation's promoters
of pornography."28
Many factors combined to create this crisis in 1989
and the decade that followed. First, the NEA had evolved
from an agency devoted to stimulating "high culture"
(in the words of Robert Brustein), to one that was at
least equally interested in non-mainstream art that
reflected the concerns of a multi-ethnic and diverse
population, including feminists, gays and lesbians,
and racial minorities. Brustein, a critic of this trend,
attributes it to "growing pressure from rightwing
legislators and leftwing levelers" which caused
the agency to become "increasingly politicized,
populist, and pop-oriented."29
In fact, the NEA supported both "elitist"
and "populist" art, and, more important, spread
what is commonly thought of as high culture to new communities.
Moreover, Brustein's dichotomy is simplistic: Shakespeare's
dramas, now considered elitist art, were popular with
all classes of society in his time; Verdi's operas were
pop culture in 19th century Italy. But whether or not
the relatively small amount of cutting-edge art that
received NEA support in the late 1980s was "elitist"
or "populist" (or neither), there is little
question that some of it was more sexually explicit
and confrontational than anything the agency had funded
in the past.
It was also immediate, visceral, and visual, thus supplying
more shock value than the written word. Even Piss Christ,
though not a sexual image, combines a sacred religious
symbol with an excretory substance, as sociologist Paul
DiMaggio and his colleagues have noted, to produce "an
immediacy that words or even music lack."30
But there is much more to the 1989 crisis than the NEA's
funding, in small amounts, of explicit or visceral works
of art. Complaints about even as presumably inflammatory
a work as Piss Christ would, in earlier times, have
been met by a politically sophisticated defense of the
NEA (all of the agency chairs before Frohnmayer had
been insiders versed in Washington politics), combined
with support for diversity and artistic freedom from
arts-friendly legislators. Widespread outrage at the
ugly homophobia expressed by Helms and others during
their NEA attacks also might have been expected in a
different political atmosphere. As one museum director
noted, the "heightened level of demagoguery"
emanating from Congress and directed against the NEA
in 1989 and 1990 really had no precedent. Congress "abandon[ed]
25 years of bipartisan support," by "pandering
more cynically than ever to the anti-intellectualism
that has always simmered below the surface of American
society."31
At bottom, there is no escaping the fact that the political
climate by the late 1980s, after eight years of the
Ronald Reagan presidency and major gains by the religious
right, had much to do with the political vulnerability
of the NEA. Arts funding became, for advocates and politicians
on the newly powerful right, an ideal, even "juicy,"
symbolic target32 that could be used in direct mail
campaigns to swell the coffers of such groups as the
Christian Coalition and Wildmon's American Family Association.
Their mailings included "scare packages" that
hypocritically trafficked "in the very stuff they
despise,"33 combining titillation with outrage
in a recipe for political success. And with a Washington
insider no longer at the agency's helm to protect it,
"the increasing strength of the religious right
proved 'the perfect storm' for the NEA-haters who had
been there all along."34
Several additional elements contributed to the debacle.
First, as critic Michael Brenson points out, the NEA
was the product of Cold War efforts to promote American
culture combined with respect for avant-garde artists
as a breed of "prophetic outsiders."35 But
the Cold War ideology that drove the Kennedy and Johnson
Administrations in the 1960s to promote federal arts
and humanities funding was ancient history by 1989.
It was no longer politically useful to idealize artists
and promote their works abroad; on the contrary, those
in the avant-garde could now more conveniently be demonized.
Anti-intellectualism, often a theme of the political
right, could also now be used to stir resentment against
outré artists: the American Family Association's
July 1989 press release protesting the Serrano and Mapplethorpe
exhibits did this brilliantly by asking repeatedly why
truckdrivers, factory workers, and sales clerks, who
"are artists also," do not receive government
grants.36
Second, media sensationalism fanned the flames. Consistently,
works were inaccurately described and taken out of context;
artistic ambiguity was lost in a media environment more
interested in excitement and headlines than thoughtful
analysis and critical explanation. The shrinking journalistic
attention span and preference for hot-button soundbites
is a phenomenon that affects not just the arts, of course;
and many arts reporters were conscientious and responsible.
But overall, the mass media contributed substantially
to the NEA's woes.37
Third, the failure of most of the arts establishment
to speak up loudly and unambiguously in defiance of
the campaign against the NEA cannot be ignored. Although
in 1989 and 1990, prestigious groups such as the American
Assembly were confidently announcing that free expression
is "of special importance to a thriving artistic
culture" and that government arts programs "should
support new work of promise that may prove risky or
unpopular,"38 they did little afterward to combat
the rightward plunge of arts policy or persuade the
NEA's critics that they were wrong. By the mid-'90s,
many arts administrators and advocates had made a judgment
that defending censorship-free government arts funding
was political suicide; that, as Jane Alexander also
eventually concluded, the only way to save the NEA was
to restructure it dramatically and be extremely cautious
about grants that might be used as further ammunition
by the Endowment's enemies. Others no doubt felt that
whatever the merits of a Mapplethorpe or Karen Finley,
it was a mistake to support their work with tax dollars.
It will never be known whether a more unified and assertive
response from the art world as the crisis deepened would
have made a difference.
By the mid-1990s, yet another explanation for the debacle
was being heard. Scholars and analysts working in the
new field of cultural policy studies argued that arts
funders needed to pay much more attention to their political
base, and be better prepared to defend their decisions.
Led by such advocates of political realism and accountability
as Ohio State University's Margaret Jane Wyszomirski,
cultural policy theorists stressed the need for more
empirical research about public attitudes, and about
the economic and social value of arts institutions.39
In these efforts to build public-policy support for
the arts, the issue of free expression - or, conversely,
of moral or ideological restrictions on grants - was
not often highlighted.
Yet some scholars working in the field began to make
interesting discoveries. Professor Paul DiMaggio and
his colleagues, for example, found that about 2/3 of
American adults support government arts funding - a
number that "has been remarkably stable throughout
sharp fluctuations in the NEA's political fortunes."
This support is broad but shallow, though. In other
words, arts funding is not all that urgent an issue
for most of its supporters, in contrast to the 15%-20%
of the public that opposes funding "with fierce
conviction." The distinction is important because
"only citizens with strong convictions are likely
to take the trouble to sign a petition or contact an
elected representative about an arts-related subject."
Hence, a vociferous minority of the population can drive
arts policy; and this is the case even though the majority
support arts funding despite years of misleading attacks.
During the funding crises of the '90s, by "fusing
a coalition of fiscal conservatives, Republican partisans,
and Evangelical Christians, the NEA's opponents constructed
a potent pressure group whose relatively small size
- less than 25% of the voting public - belied its visibility."40
In other studies of arts controversies, scholars at
Princeton University found that the "culture wars,"
so loudly trumpeted by the mass media and morality-promoters
such as William Bennett and Patrick Buchanan, did not
correspond to the facts. After a decade of arts funding
controversies, for example, attitude surveys showed
that "mass opinion is more moderate and in many
ways more sophisticated than public rhetoric."
In the area of both arts funding and "political
correctness" on college campuses, the cultural
battles waged in the media and the political arena did
not accurately reflect most Americans' opinions. The
researchers concluded that "mobilized social movements,"
particularly on the political right, had been able to
create the false impression of a nation deeply divided
by a culture war.41 "Rather than representing an
accurate diagnosis of the American political condition,
the 'culture wars' account has served as an interpretive
frame with an intrinsically conservative bias, generalizing
to the American people as a whole a strident antagonism
thus far visible mainly among political elites and well-financed
social movement organizations."42
All this is not to say that the NEA had widespread popularity
before 1989, or that it was paying adequate attention
to politics and grassroots support. Margaret Wyszomirski
has argued forcefully that political accountability
is a fact of life for arts funders, and that even granted
the importance of artistic freedom, this inevitably
means that agencies cannot deviate too far from the
cultural and moral norms of their communities.43 NASAA
notes that the attacks of the 1990s have caused state
agencies to be better prepared to articulate their accomplishments
and answer questions from legislators.44
Roberto Bedoya, former director of the National Association
of Artists' Organizations, adds that the whole issue
of accountability is a "two-way street." Just
as society expects artists, especially those who receive
public funds, to be accountable, so artists "make
a claim upon society, such as a claim for inclusion,
that asks society to acknowledge a group like gays and
lesbians, or art that asks us to address a societal
problem such as racism - claims that are controversial
because they challenge social systems."45
State and Local Arts Funding
The Growth of State and Local Agencies
A number of state and local arts agencies existed long
before the NEA. Utah is often credited with creating
the first state agency, in 1899.46 Minnesota began a
State Arts Society in 1903,47 and the New York State
Council on the Arts says it was the "first agency
of its kind in the nation" when it was established
on a temporary basis in 1960.48 Washington followed
in 1961; South Carolina in 1962.49
In the decade after the creation of the NEA, every state
that did not already have an arts council established
one in order to receive and disburse the federal block
grants that were an integral part of the NEA law. Eventually,
the District of Columbia, Puerto Rico, Samoa, Guam,
the Northern Mariana Islands, and the U.S. Virgin Islands
also created arts councils. As these agencies grew,
they began to challenge the Endowment's control, "demanding
more flexible guidelines for the funds they regranted,
more influence in developing guidelines, and symbolic
acceptance as partners, rather than subordinates, in
the policy process."50
A community arts movement was also growing. With roots
in the 1940s and arts councils starting at about the
same time in Winston-Salem, North Carolina, Canon City,
Colorado, and Quincy, Illinois, by the mid-50s the movement
boasted about 55 community agencies. By 1967, the number
had grown to 450, of which 70 employed paid staff.51
State and federal funding stimulated further growth,
until by the late 1990s, there were more than 3,000
city and county arts councils, about 1/4 of which were
agencies of local government, with the remainder organized
as private nonprofits. Today, the local councils vary
greatly in size and activity level - some sponsor cultural
programs of their own, provide assistance to artists,
operate exhibit spaces, and publish calendars and newsletters,
as well as giving out grants.52
Expenditures by state and local arts agencies dwarfed
the relatively small budget of the NEA even before Congress
began shrinking the Endowment.53 Despite arts funding
controversies in the 1990s, state agencies managed to
increase their budgets overall, from $211 million in
1992 to $447 million in 2001. They have done so by emphasizing
the role of the arts in education, in helping "at
risk" youth, and in stimulating economic development,
tourism, and community life.54 Although by 2003 several
state agencies were facing severe budget cuts, these
were due to worsening economic times rather than controversies
over funded art.55
This hardly means, however, that state and local agencies
are immune from political attack. Four incidents, detailed
below, provide insight into the dynamics of local arts
funding controversies.
Four Controversies of the 1990s
Cobb County, Georgia
In July 1993, the Theatre in the Square in Marietta,
Cobb County, Georgia (just outside Atlanta), staged
a production of Terrence McNally's play Lips Together,
Teeth Apart, which centers around two straight couples
spending a Fourth of July weekend at the vacation home
of a friend whose gay brother has just died of AIDS.
The theater received $41,000 annually in county funds.
Homophobic complaints from constituents were compounded
when the Theatre in the Square also presented David
Henry Hwang's M. Butterfly. In late July, County Commissioner
Gordon Wysong proposed a resolution stating that "the
traditional family structure" is Cobb County's
community standard; that "lifestyles advocated
by the gay community should not be endorsed by government
policy makers"; and that no activities would be
funded which violate "existing community standards."
Along with this was a proposed amendment to the County
Code deleting a guarantee of artistic freedom and replacing
it with a statement that arts funds "should be
expended primarily on programming which advances and
supports strong community, family-oriented standards."56
The American Civil Liberties Union and People for the
American Way wrote letters of protest to Cobb officials,
pointing out that the resolution, with its explicitly
homophobic criterion for grants, was a clear example
of unconstitutional "viewpoint discrimination"
in arts funding. Shortly afterward, the commission eliminated
the county's entire $110,000 budget for arts grants.
Nine organizations lost funding, including the Cobb
Children's Theater, Cobb Youth Chorus, and Cobb Symphony
Orchestra. Local businesses and gay rights groups organized
protests, including a boycott of Cobb's new convention
center, but the arts community was less unified in its
response. As The Nation magazine reported: "while
Cobb County's embattled gay and lesbian community organized
a vigorous campaign in response to the resolutions,
no such consensus exists in the arts community."57
Although Cobb County today does support cultural programming
through three arts centers and a theater, it has not
reinstated arts grants.58 The events in Cobb County
were a dramatic reminder of the fact that whatever artistic
integrity, good public policy, or the First Amendment
may require in the context of arts funding, the legislature
that controls the purse strings can eliminate grant-making
entirely if the arts do not have sufficient political
support.
Charlotte/Mecklenburg, North Carolina
In 1996, the Charlotte Repertory Theater, which received
partial funding from the Charlotte/Mecklenburg Arts
and Science Council, staged Tony Kushner's Pulitzer
Prize-winning play, Angels in America. An epic dramatization
of concerns about contemporary America at the approach
of the millennium, Angels has gay as well as straight
characters, and deals with AIDS, homophobia, and McCarthyism
past and present. It has a very brief nude scene. Despite
picketing from Christian right activists and pressure
from the mayor, an "unrepentant" Charlotte
Rep refused to "tone down" the show, and went
on to stage John Guare's Six Degrees of Separation which
includes a gay leading character.59
The following April, 1997, at a "circus-like six-hour
meeting"60 of the Mecklenburg County Commissioners,
members of the public excoriated the "homosexual
agenda," and the commissioners, by a 5-4 vote,
passed a resolution supporting "the traditional
American family," attacking "perverted forms
of sexuality," and denouncing the Arts and Science
Council for failing to abide by "any acceptable
community standards." The resolution relieved the
Council of "any further responsibility for the
determination of where taxpayer dollars shall be spent,"
and required that henceforth every arts grant must be
approved by the commissioners themselves.61
Interviewed by the Charlotte Observer, Commissioner
Bill James remarked that "as far as I'm concerned,
those guys [the Charlotte Rep] are dead on arrival.
If they don't know they're the walking dead now, I suggest
they get a clue pretty quick."62 Another commissioner,
when asked about homosexuality, replied: "if I
had my way, we'd shove these people off the face of
the earth."63
The majority of the county's population did not concur
with this bigotry; and two years after what one critic
calls "the infamous April Fools' Day meeting,"
all but one of the "gang of five" commissioners
who reacted so combustibly to Angels in America had
been voted out of office, thanks to the electoral efforts
of a bipartisan citizens' group.64 The Council was able
to rally political support and retrieve its grant-making
responsibilities. As its then-president Michael Marsicano
explained, "gay people pay taxes too," and
the Council fought back with a public relations campaign.
"Free nights, lower ticket prices for those who
can't afford to go otherwise, free dress rehearsals
for students, raising diversity consciousness among
arts organizations, integrating the arts into education.
If you think about things like libraries and the arts
- if those are not publicly supported, only the rich
can afford them," Marsicano said.65 By 2000, the
Council's budget had grown to $15.6 million, and combined
city/county arts spending in Charlotte/ Mecklenburg
was more than $9 million.66
Grant decisions by the Arts and Science Council today
are governed by a peer review process. Although the
"traditional American family" and "community
standards" provisions of the 1997 resolution are
no longer in effect, North Carolina does have "some
odd ancient laws about nudity and sexual orientation,"
says the Council's chief operating officer, Bill Halbert.
"And as long as we don't break those laws, everybody's
happy." His reference is to a prohibition on public
nudity that prosecutors interpret to apply to theater
productions, and to the fact that North Carolina's civil
rights laws do not protect against discrimination on
the basis of sexual orientation. Hence, Halbert explains,
the Council cannot fund productions that include nudity
on stage; and it cannot insist that its grantees' anti-discrimination
policies protect gays. But he says there is no problem
now in supporting art with gay or lesbian content -
indeed, the Charlotte Rep presented M. Butterfly in
2003, and in neighboring Davidson, North Carolina, Angels
in America was performed "without a hitch."67
San Antonio/Esperanza
The Esperanza Peace and Justice Center is a multi-purpose
nonprofit arts and cultural center in San Antonio, Texas.
It offers music, film, video, and other cultural programming
as well as space and assistance to local artists. It
is explicitly political - its mission statement mentions
civil rights, the environment, and economic justice,
and proclaims the center's intention to "advocate
for those wounded by domination and inequality - women,
people of color, lesbians and gay men, the working class
and poor."68
Beginning in 1990, Esperanza received funding from the
City of San Antonio through its Department of Arts and
Cultural Affairs. Some grants were for operating expenses
in connection with the center's major programming, called
PazARTE; others were for specific projects, such as
the "Out at the Movies" film festival, operated
by a separate group for which Esperanza served as fiscal
sponsor.69
In 1997, as a federal court later found, Esperanza and
other arts organizations "were targeted by certain
conservative groups who opposed their perceived advocacy
of the 'gay and lesbian lifestyle,'" but "none
were the target of a lobbying effort as extensive or
as vicious as that leveled against Esperanza."
A Christian-right radio talk show host spearheaded a
campaign of homophobia directed in particular at the
"Out at the Movies" festival, while the local
director of the Christian Pro-Life Foundation sent a
flyer to about 1,200 supporters urging opposition to
further funding for Esperanza. City Council members,
some of them already sympathetic to the religious right's
goals, received calls, letters, and e-mails dwelling
on the "homosexual agenda" and "deviant
lifestyle." In September 1997, the Council voted
to discontinue more than $62,000 annually in grants
to Esperanza. This scenario was repeated the following
year, when the Council, under continuing pressure, voted
down all of Esperanza's grant requests.70
Esperanza sued the city and its then-mayor for damages
and an injunction. After a lengthy litigation, the case
was decided in Esperanza's favor in 2001. The judge
found that the city's decision was clearly driven by
unconstitutional viewpoint discrimination - antagonism
to rights or recognition for gays and lesbians. He noted
that although "of course, the government is not
required to fund arts programs," if it does so,
"it must award grants in a scrupulously viewpoint-neutral
manner." In response to San Antonio's argument
that stigmatizing homosexuality is "neither novel
nor new" and that therefore the city had cause
to deny funding to an organization that promoted it,
the judge wrote that "racial discrimination also
has 'ancient roots,' but the antiquity of stupid beliefs
does not make them constitutionally acceptable."71
In contrast to Cobb County, San Antonio did not respond
to the mandate of viewpoint neutrality by eliminating
all arts funding. In part, this was because the city
is culturally diverse, with a political complexion considerably
less conservative than Cobb County's. San Antonio is
also a major urban center that thrives on tourism, in
which arts and culture play a significant role. Finally,
the Texas Commission on the Arts, which contributes
to San Antonio's arts budget, has a more inclusive approach
to funding. As its then-executive director John-Paul
Batiste said, the city behaved badly, and "ended
up for three years in court. But the whole situation
in San Antonio has changed; there are new people elected,
and they're off to a great start over there."72
In 2002, Esperanza reapplied for funding, was ranked
first in its division, and was awarded a total of $103,000
for 2003.73
The Brooklyn Museum and Sensation
With the largest budget of any government arts agency
in America, the New York City Department of Cultural
Affairs has long maintained "a de facto policy"
of "not interfering in the rights of freedom of
expression of the groups that it supports."74 In
September 1999, however, then-mayor Rudolph Giuliani
made headlines by expressing outrage over the upcoming
exhibit Sensation: Young British Artists from the Saatchi
Collection, at the Brooklyn Museum of Art. Giuliani
announced that several works in the show were "sick"
and "disgusting"; and he was infuriated, in
particular, by Chris Ofili's The Holy Virgin Mary, a
glittering, icon-like painting of an African madonna
with a dollop of dried elephant dung near one breast.
The painting was not smeared with dung, as some reports
had it, and dried elephant dung is not an insulting
or blasphemous substance in African culture. Indeed,
Ofili used it in works that were clearly respectful,
including other works in the Sensation show.75
Nevertheless, a week before Sensation's scheduled opening,
Giuliani ordered the Brooklyn Museum to cancel the show.
He threatened that if the museum refused, he would freeze
funds that the city had already allocated for general
operating expenses (the city had not funded Sensation
specifically), and would evict the institution from
its public premises. On September 28, he stated that
taxpayer money should not "be used to support the
desecration of important national or religious symbols,"
and a city press release the same day denounced "an
exhibit which besmirches religion and is an insult to
the community."76
Giuliani's appeal to religious feelings - at a political
moment when he was preparing to run for the U.S. Senate
- and his refusal to entertain explanations of the context
and meaning of Ofili's work, were painfully reminiscent
of the political grandstanding that surrounded the attacks
on Serrano's Piss Christ ten years before. It was frequently
noted that Giuliani needed a high-profile political
issue on which he could appeal to moral conservatives,
particularly in view of his pro-choice record on abortion.
Sensation was an opportunity to put his likely opponent,
Hillary Clinton, on the spot. When Clinton expressed
aversion for the show but disagreement with Giuliani's
desire to shut it down, he responded: "Well, then,
she agrees with using public funds to attack and bash
the Catholic religion."77
This appeal to Catholics was hardly subtle, but it did
not have the outcome that Giuliani anticipated. Although
Sensation remained controversial, with pickets for and
against it appearing in front of the Brooklyn Museum
during the first days of the show, New Yorkers seemed
generally unimpressed with Giuliani's rhetoric.78 And
although the arts community's response was not uniform,
the New York City Arts Coalition, consisting of more
than 200 nonprofits, organized a protest statement within
days of Giuliani's first comments, and within a week,
22 of the 33 members of the city's Cultural Institutions
Group (private nonprofits that operate the city's cultural
landmarks) released a letter condemning his threats
as a "dangerous precedent" that could cause
"lasting damage" to New York's cultural life.
The signers ranged from the Metropolitan Museum of Art
to the Staten Island Historical Society and the Bronx
Zoo. Non-member institutions including the Museum of
Modern Art (MOMA), the Frick Collection, and the Jewish
Museum also signed.79
This outpouring did not move Giuliani, and when city
officials announced that they would withhold the Brooklyn
Museum's monthly payment of $497,554, due on October
1, the museum filed a First Amendment lawsuit seeking
to stop the retaliation and restore the funds. The city
countered with an eviction suit in state court; then
argued to the federal judge (unsuccessfully) that she
must defer to the state court action.
Opposition to Giuliani's concept of arts funding solidified
during the brief but dramatic litigation. Dozens of
major institutions joined in friend-of-the-court briefs
opposing the mayor, including the Metropolitan Museum,
MOMA, the American Association of Museums, the Whitney
Museum, the New York Historical Society, the New York
City Arts Coalition, the New York Foundation for the
Arts, the Wildlife Conservation Society, the New York
Hall of Science, the American Association of Museum
Directors, and the Alliance of Resident Theaters/New
York. Local political leaders also filed a brief supporting
the museum; they included Manhattan Borough President
C. Virginia Fields, Bronx Borough President Fernando
Ferrer, City Council Speaker Peter Vallone, 26 other
members of the Council, and seven members of the New
York State Assembly.80
In November 1999, Judge Nina Gershon released her decision.
Following the Supreme Court's reasoning in the Finley
case, she explained that, even in the provision of subsidies,
government cannot engage in viewpoint discrimination,
and furthermore, that the city's coercive actions amounted
to an unconstitutional effort to penalize the museum
and suppress the art being shown. Judge Gershon wrote:
"there is no federal constitutional issue more
grave than the effort by government officials to censor
works of expression and to threaten the vitality of
a major cultural institution as punishment for failing
to abide by governmental demands for orthodoxy."81
Giuliani described the court decision as "the usual
knee-jerk reaction of some judges," and vowed to
appeal, but in March 2000, he settled the case and agreed
to restore the museum's funding.82 So matters stood
until April 2001, when the mayor activated a largely
dormant Cultural Affairs Advisory Commission and instructed
it to establish "decency standards" for New
York City's public museums. The catalyst was another
work by a black artist, Renee Cox's nude Yo Mama's Last
Supper, again at the Brooklyn Museum, although this
time the publicity and the level of sensationalism surrounding
Giuliani's disapproval of the work were more subdued.83
Giuliani's successor, Mayor Michael Bloomberg, had no
interest in continuing the decency campaign. In February
2003, he appointed 21 new members to the Cultural Affairs
Advisory Commission, including MOMA President-Emerita
Agnes Gund and artist Chuck Close. The new members would
provide assistance and advocacy for cultural groups,
but would not screen for indecency.84 Today, Department
of Cultural Affairs program services director Len Detlor
emphasizes: "these issues come up very infrequently,
far less frequently than you would imagine. We just
don't get that many complaints."85
New York's experience, like San Antonio's and ultimately,
Charlotte/ Mecklenburg's, suggests that efforts to censor
art based on the "taxpayers' money" rationale
do not always succeed. While lawsuits were necessary
in the short term to restore public funding for Esperanza
and the Brooklyn Museum, in the long run, as the experience
in Charlotte/Mecklenburg suggests, political support
and good public relations are critical in maintaining
censorship-free arts funding.
II.
FREE EXPRESSION POLICIES AMONG STATE AND LOCAL ARTS
AGENCIES
State Laws Recognizing Artistic Freedom
We found 32 state arts agencies with enabling legislation
that explicitly recognizes artistic freedom. In establishing
the Connecticut Commission on the Arts in 1965, for
example, the state's General Assembly mandated "that
all activities undertaken in carrying out the policies
set forth in this chapter shall be directed toward encouraging
and assisting, rather than in any way limiting, the
freedom of artistic expression that is essential for
the well-being of the arts."86 Similar or identical
declarations found their way into the 1965 laws establishing
the Indiana, Maine, Missouri, New Hampshire, New York,
and Oklahoma arts councils.87 Colorado's law, with its
origins in 1963, may have been the first to use this
particular wording.88 Similar language appears in the
Kentucky, Michigan, and New Jersey laws passed in 1966;89
the laws creating the Alabama, Arizona, Delaware, Idaho,
Montana, Nevada, North Dakota, Rhode Island, South Carolina,
Tennessee, and Wyoming arts councils in 1967;90 and
Mississippi's enabling legislation in 1968.91 Other
state laws with similar or identical language "encouraging
and assisting" the free expression "that is
essential for the well-being of the arts" are found
in Alaska, Florida, Georgia, Nebraska, and Wisconsin.92
A few state laws expand on this general formula. Pennsylvania,
instead of listing artistic freedom as one of several
agency goals, devotes an entire statutory section to
the subject. Titled "Interference With Artistic
Expression or Cultural Programs," the law provides:
"In the course of carrying out its powers and duties
under this act, the council shall avoid any actions
which would interfere with the freedom of artistic expression
or with the established or contemplated cultural programs
in any local community."93
Minnesota, although without a separate code section,
has a similar directive, clarifying that the board "shall
insofar as reasonably possible," "avoid any
actions which infringe on the freedom of artistic expression
or which interfere with programs in the state which
relate to the arts but which do not involve board assistance."94
Maryland's 1967 law creating the State Arts Council
has not one but two explicit references to artistic
freedom. The first tracks the familiar language of many
of the state laws: "All activities undertaken by
the state" in promoting and funding the arts "shall
be directed toward encouraging and assisting rather
than in any way limiting the freedom of artistic expression
which is essential for the well-being of the arts."95
The second echoes the Pennsylvania and Minnesota laws:
"In the course of exercising its powers and duties
… , the Council shall avoid any actions which
would interfere with the freedom of artistic expression
or with the established or contemplated arts programs
in any community."96
Finally, South Dakota's 1966 law simply states that
the arts, "in order to grow and flourish, depend
upon freedom, imagination, and individual initiative."97
Although this is more ambiguous than the other enactments,
we have classified it as a free-expression statement.
On the other hand, the closest that California's law
comes to mentioning free expression is its listing,
as one of the arts council's powers and duties, to "encourage
artistic awareness, participation, and expression."98
This did not seem to us explicit enough to qualify as
a statement in support of artistic freedom. (California's
1975 amendment to its 1965 arts funding law also announced
that the "legislature perceives that life in California
is enriched by art," and that the "source
of art is in the natural flow of the human mind."99)
State and Local Agency Policies Relating to
Artistic Freedom
State Policies That Reinforce Statutory Language
Of the 32 state agencies with free-expression language
in their enabling laws, some back up the mandate with
policies prominently featured on their Web sites or
in other public documents; some do not advertise the
policies at all; and a few, like Arizona and Tennessee,
are governed by later legislation or policy statements
that contradict artistic freedom. (For the Arizona and
Tennessee experiences, see below.)
Several states agencies' free expression policies predate
the nationwide controversies over government arts funding
that erupted in 1989. The New York State Council on
the Arts (NYSCA), for example, has since its founding
counted "supporting … artistic excellence
and the creative freedom of artists without censure"
among its missions.100 According to Richard Schwartz,
chair of the Council, this means supporting controversial
art when it meets the agency's standards of merit. "If
our mission was only to fund things that were plain
vanilla, I don't know how we'd do it."101
In Rhode Island, similarly, the State Council on the
Arts lists on its Web site among its duties "to
promote and protect freedom of artistic expression"
in Rhode Island.102 RISCA executive director Randall
Rosenbaum observes that "Rhode Island as a state
has always been first and foremost a proponent of individual
freedom, religious and otherwise," so that "a
statement regarding intellectual freedom that's inherent
in the council's enabling legislation would be a natural
thing."103
In New Jersey, although there is no explicit free-expression
language on the arts council's Web site, its policy,
according to Beth Vogel, program officer for the council's
Education and Artist Services, has been consistently
to follow the statutory mandate to "encourage and
assist freedom of expression in the performing and creative
arts."104 In fellowship workshops throughout the
state, Vogel says, staff assure potential grantees that
decisions on funding "are not issue-driven,"
and that the council will not reject proposals simply
because the content may be sexual or religious. Nevertheless,
she feels, the funding wars have taken their toll. Artists
"are censoring themselves when they're entering
contests," she says. Ten years ago, "you'd
see a lot more nudes." Artists have told her directly
that they are now submitting "safer" work.105
North Dakota has had a visible free expression policy
since at least 1987, according to Janine Webb, executive
director of the state's arts council. The council augments
the free expression language in its state legislation
with a vision statement and strategic plan that include
the goal of supporting individual artists' "development,
freedom of expression, and sustenance."106 Webb
explains that North Dakota, a rural state with shrinking
population, views the arts as a potential area for economic
development. She and other North Dakota leaders believe
that a welcoming climate for creativity will attract
younger people, and that "freedom of expression
is key to supporting artists."107
Several state agencies with free expression language
sitting silently in their statute books adopted more
public statements amid the galvanized climate of the
arts funding wars. The Minnesota State Arts Board's
August 1989 resolution, for example, passed "in
response to Congressional proposals to restrict the
ability of the National Endowment for the Arts to make
grants on the basis of free artistic expression,"
articulated the Board's "strong support of the
original objectives of the Congress in the creating
of the National Endowment for the Arts," and expressed
"its deep concern with any contemplated alteration
in the landmark objectives of artistic freedom so clearly
set forth in the legislation of 1965." The resolution
was to be conveyed "to the Minnesota Congressional
delegation to indicate an undivided concern for prompt
resolution of debate in favor of artistic freedom and
an unwavering commitment by the federal government to
support the arts and humanities."108 It cannot
currently be found on the board's Web site, however.
The New Hampshire State Arts Council also reacted to
the attacks on the NEA with a resolution recognizing
its "great obligation and public responsibility
in granting public funds," while affirming that:
all activities supported with Council funds be directed
toward encouraging the freedom of expression that is
essential for the well-being of the arts and the people
of New Hampshire. We fulfill our responsibility with
the adoption of and adherence to a rigorous system of
review by panels composed of arts professionals and
New Hampshire citizens informed in the arts to recommend
grants on the basis of artistic merit.109
Again, the resolution is not now available on the council's
Web site.
When the Wisconsin Arts Board rewrote its mission statement
in the early 1990s, it, too, incorporated free expression,
declaring that the Board was "committed to creating
an environment of free expression and open interpretation
in which the arts can flourish."110 However, the
policy "doesn't really enter in [our discussions]"
during the grant application review process, according
to Arts Board executive director George Tzougros. Tzougros
says that the policy has had "not a big impact,"
especially as the Board has made no controversial funding
decisions to date.111
Idaho provides another example of ambivalence. In this
conservative mountain state, the free-expression policy
articulated in the arts commission's governing statute
has become part of the Commission's funding policies,
and has evolved into a formal statement on "Freedom
of Expression and Community Standards." The statement
begins: "The Commission is an advocate for and
defender of the right of free speech for all citizens
under the First Amendment of the Constitution of the
United States"; but goes on to announce that "the
Commission intends that funded projects exhibit a sensitivity
and responsiveness to community standards. The Commission
recognizes the need for public support of the arts and
understands the responsibilities that accompany the
allocation of public funds."112
The two most recent free expression statements come
from Nevada and Georgia. The Nevada Arts Council incorporated
artistic freedom in its guidelines beginning around
1998. (Its free-expression law has been on the books
since 1967.) The policy reads: "Freedom of expression
is paramount not only to a free society, but to the
creation of art. The Nevada Arts Council bases its funding
decisions on the artistic quality of submitted artwork."113
Once "an unspoken philosophy of the agency,"
according to executive director Susan Boskoff, the official
statement was not added to the guidelines in response
to the funding debates of the 1990s. "We don't
like to respond to things like that - it gives them
the weight they don't deserve," she says.114
Finally, in 2001 the Georgia Council for the Arts adopted
a statement that the "freedom to create, view and
interact with a diversity of artistic expression is
essential to our democracy and fosters mutual respect
for the beliefs and values expressed in the First Amendment."115
"We wrote it, we put it in there, we completed
a major strategic plan," says the Council's former
executive director, Betsy Baker. That plan has involved
sending the policy to each member of the Georgia legislature
and participating in symposia on artistic freedom. "I
think it's very important for an agency to make its
stand very clear on artistic expression," Baker
continues. "Obviously, you have to couch all this
on freedom of expression in a very normal and natural
tone. … Agencies need to be very clear in their
stand on that, at the same time realizing that you're
dealing with public dollars. Since it is public money
you have an obligation to be respectful of those moneys
at the same time [that] you're educating the public;
because I think there is a lot of educating to be done
in this area."116
States That Shy Away From Explicit Free-Expression
Policies
If Idaho seeks to affirm artistic freedom while at the
same time announcing its sensitivity to "community
standards," other states with legislation protecting
free expression do not advertise the fact at all in
their mission statements, grant guidelines, or other
program materials. Of the 32 states with free expression
statements in their enabling legislation, we found just
13 that include such language on their arts agencies'
Web sites or in other written policies.117
Alaska is an example of the less assertive approach.
Charlotte Fox, executive director of the Alaska State
Council on the Arts, says that while the state law describing
artistic freedom as "essential for the well being
of the arts" is still on the books, "I don't
feel like it's necessary to state it. It's a little
bit about stating the obvious."118
The Missouri Arts Council takes a similar approach.
Its 1965 enabling law lists among the Council's duties
"to encourage and assist freedom of artistic expression
essential for the well-being of the arts."119 This
explicit language is omitted from the Council's Web
site, however, which instead lists more generally, among
its eight guiding principles, the "vital role"
that the arts play in "the life and well-being
of the community," the value of "innovation
and creative expression in the arts," and the agency's
"commitment to the effective use of resources and
to maintaining integrity and accountability in our distribution
of public resources."120 When we asked Don Dyer,
then program development specialist at the Council,
about the discrepancy, he replied that he was not aware
of the statute. He added that "a couple of years
ago I put together a free expression policy, but then
the director left, and a new director came in …
and it's been sitting in a file in my cubicle."
He indicated that he would be submitting the draft to
the new director and thanked us "for giving me
that spark."121
Other
agencies candidly explain their reasons for not carrying
over free expression legislative language into more
visible materials. The Colorado Council on the Arts'
enabling law requires that all agency activities encourage
and assist, "rather than in any way limiting,"
artistic freedom, but when asked whether this policy
appears in the Council's more public documents, Fran
Holden, executive director, exclaimed: "we wouldn't
dare put it in there!" Holden explains that Colorado
is an extremely conservative state, and while the free
expression language was written in 1967, it is not a
sentiment that would be broadly accepted by the legislature
today. Holden notes that Council members, in making
grant decisions, certainly recognize the importance
of the legislation. However, the Council does not "beat
our breasts about it." "To be honest,"
continues Holden, free expression "has not been
an issue for us. So, we're sort of just leaving things
alone."122
States That Promote Artistic Freedom Absent
Specific Statutory Language
We found four state agencies - Illinois, Iowa, Ohio,
and Oregon - whose governing laws do not explicitly
mention artistic freedom but that nevertheless have
announced free-expression policies on their Web sites
or in other public documents. In addition, the Washington
State Arts Commission posts a mission statement that
stresses cultivating "a thriving environment for
creative expression," but it does not explicitly
embrace artistic freedom. Mary Frye, the Commission's
awards program manager, says "there has always
been an internal unwritten perspective that freedom
of speech is important."123 This seemed a bit too
informal to qualify as a free-expression policy.
A high-profile battle over a student exhibit at the
School of the Art Institute of Chicago in 1989 led the
Illinois Arts Council to adopt a "Position on Freedom
of Expression." The controversial work, "Dread"
Scott Tyler's What Is the Proper Way to Display a U.S.
Flag?, featured a flag on the floor and gave rise to
outcry among legislators and veterans' groups, as well
as bomb threats to the Institute, which felt compelled
to close the show.124 Although the Illinois Arts Council
did not fund the exhibit - it provided general funds
to the School of the Art Institute for public programs,
not for student shows - the Illinois legislature from
that point on limited Council funding to the school
to one dollar.125
The Council's position, while never formally published,
was drafted after the Dread Scott incident, and is to
be used by staff as a reference in the event of complaints
about allegedly inappropriate funding decisions. It
affirms that:
The Illinois Arts Council respects the integrity of
an artist's personal vision and his or her right to
freedom of expression. The Council has respect as well
for the public nature of the grants that we administer
and we endeavor to ensure that these funds are used
to support a wide variety of artistic viewpoints. Ensuring
that all citizens have access to quality artistic programs
is the Council's primary goal.
In fulfilling that goal, the Council acknowledges that
bold statement and challenging works may be at times
troublesome to certain audience members. While our intention
is not to insult or offend anyone, the meaning of an
artist's work is a matter about which responsible people
can disagree. The activities, individual artists and
other programs supported by the Council are judged on
their aesthetic merits and presented as representative
of the quality and diversity of the arts in Illinois.126
Since the policy was written, the Council has not faced
any controversies that would force the agency to test
it.127
The Iowa Arts Council also produced an artistic freedom
policy in response to the crises of 1989 and the early
1990s. The Council sought the aid of Wayne Lawson, executive
director of the Ohio Arts Council, which had been a
focal point for controversy in 1990 when the Cincinnati
Contemporary Arts Center and its director were criminally
prosecuted for obscenity in connection with their showing
of the traveling Mapplethorpe retrospective, The Perfect
Moment. (A jury acquitted them, finding that the works
had serious artistic value.128) According to the Iowa
Council's community development coordinator, Julie Bailey,
bringing in a peer with experience in the arts funding
debate was "the best thing we could have done."
Believing it was crucial that the statement be worded
correctly to avoid potentially thorny differences in
interpretation, the Council involved not only its staff,
its board, and Lawson in its drafting; it also initiated
public involvement in and awareness of the statement,
and before finalizing it, the Council published a draft
in its newsletter to give constituents "reaction
time."129
The text that eventually emerged from this multifaceted
discussion process is today a prominent part of the
agency's policy, and is highlighted on its Web site.
It states:
The mission of the Iowa Arts Council is to support the
arts for the benefit of all. Support of free speech
is the centerpiece of this mission. The Council is an
advocate for and defender of the right of free speech
for all citizens under the First Amendment of the Constitution
of the United States. The Council also recognizes the
need for public support of the arts and understands
the responsibilities that accompany the use of public
funds. The Council seeks the advice of qualified Iowans
through the use of review committees for funding recommendations.
To uphold and maintain the highest artistic standards
and to encourage excellence in the arts is a directive
of the Council. The Council respects the integrity of
an artist's personal vision and right to freedom of
expression. Attempts to control or censor the arts are
rejected by the Council. The Council supports freedom
of choice and access to the arts for all citizens.130
In July 1990, the Oregon Arts Commission (OAC) also
published a formal declaration on free expression. In
conjunction with the (now defunct) Oregon Advocates
for the Arts, it adopted "An Arts Policy for Oregon,"
the announced goal of which was "to preserve and
protect freedom of artistic expression in Oregon."
The Policy's "Preamble" explains:
We recognize that art, by its very nature, must embrace
risk if it is to succeed in reflecting, stimulating,
and chronicling the rich, pluralistic fabric of ideas,
experiences, passions, and commitments that mark and
strengthen a free nation through freedom of expression.
Though we expect that in our pluralistic society works
of art will be created that offend certain groups, we
are staunchly opposed to any measure that would inhibit
free artistic expression in our society. In a fiercely
independent democracy such as ours, we must ask ourselves
which danger is greater - risking that someone might
express themselves "offensively," or risking
the censoring of freedom of expression and the tyranny
which could ensue from such a course.
The Policy itself states that:
because pluralism and basic freedoms are central to
the American way of life, neither the State of Oregon
nor any agency of general purpose government shall restrict
or censor the free expression of any artist or artistic
organization by any means. Considerations or actions
of funding which the state, its counties, or municipalities
render unto its citizenry shall be made on the basis
of artistic quality, not on issues or matters of content.131
This statement, however, is "not something people
really go back to and refer to at this point,"
according to Christine D'Arcy, executive director of
the Oregon commission. D'Arcy remarks that "it's
good policy stuff" but is essentially dormant;
it has neither been officially re-affirmed nor repealed.132
Finally, a policy written by the Ohio Arts Council in
the early 1990s has also fallen away from the agency's
mission statements. The statement notes "the responsibility
that accompanies the allocation of public funds,"
and the Council's commitment to "the highest artistic
standards." It then asserts that:
freedom of expression is at the core of our social,
cultural and political heritage. The Council rejects
all attempts to control or censor the arts and supports
the National Endowment for the Arts in its effort to
create and sustain a climate where freedom of thought,
imagination and inquiry are encouraged.133
The policy is "something we'd have to have the
current Council vote on before making it public again,"
says Ohio Council communications manager Jami Goldstein.134
As of 2002, there were no plans to bring it before the
Council.135 The Council's Web site, however, does note
among the "Public Purposes of the Arts":
The arts help form an educated and aware citizenry -
by promoting understanding in our diverse society, by
developing competence in school and at work and by advancing
freedom of inquiry and the open exchange of ideas and
values.136
Local Policies
In our sample of local agencies, we only found a few
with publicized free-expression policies. (Many may
be unstated, such as the "de facto" policy
in New York City of "not interfering in the rights
of freedom of expression of the groups that it supports."137)
Chicago is one city with an explicit statement. As currently
worded in the introduction to materials describing its
Visual Arts Program, the city's Department of Cultural
Affairs "strives to foster freedom of expression"
as well as freedom of access.138 According to DCA assistant
commissioner Pat Matsumoto, the statement has been there
since the early '80s but has not been widely publicized
or incorporated into the department's other policies
or program guidelines: "It's a constitutional right,
so we don't feel the need to reestablish or reiterate
it."139
Among less densely urban locales, the Arts Council of
Winston-Salem and Forsyth County, North Carolina stands
out for its 1995-96 "value statement," featured
prominently on its Web site, that "we stand in
the belief ... that freedom of artistic expression is
a fundamental human right."140 Similarly, the Web
site for the Portland, Oregon Regional Arts & Culture
Council states: "We value freedom of artistic and
cultural expression as a fundamental human right."141
In Santa Monica, California, the Arts Commission includes
in its mission statement the belief that "it is
our responsibility" to "honor and support
artistic vision, artistic excellence and freedom of
expression."142 Cultural Affairs Coordinator Hamp
Simmons says that if a constituent were to complain
that one of Santa Monica's funded projects was offensive,
he would reply: "You're entitled to your opinion,
but so is the Arts Commission, and they decided to fund
it." The Commission "wouldn't back off from
a grant because somebody was offended by some odd element."143
Policies Limiting Artistic Freedom
We did not find any state or local arts agencies that
have copied the "decency and respect" mandate
that Congress imposed on the NEA in 1990, or a close
equivalent. We did find a number of states that include
"community standards" in their guidelines.
For example, Louisiana, whose "Decentralized Arts
Funding Program" disburses funds to eight regional
agencies to ensure that each parish in the state receives
arts support, includes among its "Evaluation Criteria"
the application's "objectives and community standards."144
The Ohio Arts Council's "Percent for Art"
program, similarly, urges its advisory committee "to
be sensitive to the immediate community" in decisions
about the siting of public art.145
We also found a handful of policies that were enacted
in response to particular controversies, or that might
be considered markers for restricting grants based on
potentially controversial content. And we found one
case, Georgia, in which the arts council reacted to
the funding battles of the early 1990s by following
the lead of Congress in its treatment of the NEA, and
eliminating individual artists' grants. It was "an
unfortunate result of everything that was happening
nationally and at the state level," then-executive
director Betsy Baker explains. But "we give money
to organizations, and we're hoping they're funding individual
artists, and of course they are."146
We do not include here restrictions on religious or
sectarian events, which are found in a number of agency
policies, since these seem to be aimed at avoiding violations
of the First Amendment prohibition on "establishments
of religion," and not at disqualifying art because
of objections to its content.147 Similarly, we do not
consider agency requirements that funded events be open
to the public, or that grant recipients not engage in
partisan political activity,148 to threaten free expression
in the same sense as moral or ideological restrictions
such as "decency," "community standards,"
or hostility to "the gay lifestyle." Of course,
we recognize that in many cases, agencies' restrictions
on potentially controversial grants may be inexplicit,
unofficial, and internalized.
In Texas, a restriction that inhibits the funding of
art with sexual content arose from the NEA crises. In
1995, the state legislature added to the law governing
the Texas Commission on the Arts a statement that "the
commission shall not knowingly foster, encourage, promote,
or fund any project which includes obscene material,"
as defined in the state penal code.149 The commission
accordingly added an obscenity clause to its "Guide
to Programs and Services" which repeats the terms
of the new statute.150 The provision is technically
meaningless, because as a matter of law, any work that
has serious artistic value and therefore is likely to
receive funding cannot be legally obscene.151 But the
legislature's message seems clear enough - to avoid
art with sexually explicit content.
The new wording was added "absolutely in the wake
of the NEA case," says former TCA executive director
John-Paul Batiste. "It ended up in our strategy"
in order to avoid being "mired" in the same
kind of controversy. "The legislative codes were
posed in much of the same language, and we thought,
why do we need new laws? We will abide by what's on
the books. The laws have been on the books in Texas
for well over fifty years."152
The Commission has not had occasion to test its obscenity
provision. If a grant application seemed likely to involve
"obscene" activities, Batiste says, the Commission
would seek the advice of the state attorney general's
office: "We would write a small, simple letter
asking the attorney general to review the matter, ...
along with any [information on] the piece in question,
or the attorney general would send a person out to any
local community to review it." According to Batiste,
the agency would not be involved in this review process.153
A variation on the theme of restrictive legislation
comes from Arizona, which was the site of a passionate
conflict over the exhibit Old Glory: The American Flag
in Contemporary Art, at the Phoenix Art Museum in 1996.
The show, which originated at the Cleveland Center for
Contemporary Art, included such provocative works as
Dread Scott's What is the Proper Way to Display a U.S.
Flag? and Kate Millett's The American Dream Goes to
Pot. The exhibit had caused no problem in Cleveland
two years before, and the Phoenix museum did advance
work to prepare the community; it even involved an American
Legion representative to serve on the committee developing
educational materials. Nevertheless, there were weeks
of angry protests from veterans groups. The museum refused
to dismantle the show, and continued to pursue a public
relations strategy to explain its importance. Museum
director Jim Ballinger commented: "What this exhibit
celebrates is freedom in America. We have a story to
tell and we're not going to take away a crucial part
of the story."154
The legislature responded, however, by inserting a provision
in its 1998 legislation creating the Arizona Arts Endowment
Fund, to be administered by the state Commission on
the Arts. The provision states that no monies from the
fund "may be spent for payment to any person or
entity for use in desecrating, casting contempt on,
mutilating, defacing, defiling, burning, trampling or
otherwise dishonoring or causing to bring dishonor on
religious objects, the flag of the United States, or
the flag of this state."155 Arizona's legislators
were apparently unconcerned about the contradiction
between this new provision and its 1967 law mandating
that the commission "encourage and assist freedom
of artistic and scholarly expression essential for the
well-being of the arts."156 The new provision is
probably unconstitutional because of its viewpoint bias
(disqualifying from funding any art that expresses a
disapproved viewpoint about religious objects or flags)157;
but like the "decency and respect" law that
binds the NEA, it stands as a warning of the political
vulnerability of free expression in arts funding.
The Tennessee Arts Commission (TAC) also has restrictions,
or at least a ban on nudity in works exhibited in its
gallery space. While preparing an exhibit of his work
for the Commission's gallery in 2002, artist Ernie Sandidge
was told that TAC policy prohibited artworks featuring
nude figures. When he protested on First Amendment grounds,
the Commission responded: "The TAC Gallery is not
a designated public forum opened for exhibitions by
all groups. Rather, the Gallery is a limited public
forum with restrictions on the selection of works exhibited.
One of the … restrictions placed on all exhibits
in the Gallery is no nude figures."158 Upon further
inquiry from the National Coalition Against Censorship
(NCAC), the TAC Gallery rescinded its invitation to
Sandidge to show his work at all. The Commission said
it had a no-nudes policy on file but would not fax or
mail the document, telling the NCAC's arts advocate
that such records can only be read in person at the
TAC offices by a Tennessee resident.159
When we spoke with Rich Boyd, executive director of
the TAC, he stated that the gallery space, like the
agency's headquarters, is in a state building, and is
therefore governed by a policy which he referred to
as "public act 1990, chapter 1092," as amended,
but did not describe.160 The law in question prohibits
obscenity and material that is deemed "harmful
to minors," however; it does not bar artworks depicting
the human nude in state buildings or anywhere else.161
Hence, Boyd's reliance on the statute was misplaced.
One of the local commissions we contacted, the Aspen-Snowmass
Council for the Arts in Colorado, also restricts work
in its gallery space. As explained by Cindy Bingham,
director of the Red Brick Center for the Arts (which,
she explains, is the arts council's informal name),
this small agency wants to ensure that the art it shows
is appropriate for audiences that include toddlers through
adults. She noted that nudity and violent content would
probably be "inappropriate," and that the
gallery's review committee ensures that displays are
not "of a violent nature." These policies
are informal; Bingham is not aware of anything in writing.
On the other hand, there are no restrictions relating
to the council's funding of other arts groups; "there
is nothing in writing that would discriminate."
And the gallery has monthly artists' receptions at which
display rules are more relaxed; a recent exhibit, Bingham
says, included a "full frontal nude."162
The Arts Council of Greater Baton Rouge, Louisiana,
operates in a similarly informal fashion. Grants director
Martha Yancey knows of nothing in the council's guidelines
relating either to free expression or to explicit restrictions,
but she notes that most funded programs "are community-based
activities and in one way or another it is expected
that the art would conform to whatever standards the
community requires." Among artists and nonprofits,
she adds, there is a "general understanding that
things are done in propriety," although she acknowledges
that "there is no limit to the imagination."163
Some agencies have limitations that are not explicitly
content-based but nevertheless may be used to restrict
grantees' artistic freedom. For example, JuDee Pettijohn,
director of the Florida Division of Cultural Affairs,
notes that free expression in arts funding is still
the policy under state law, and that the agency "absolutely
supports it." However, because the funds are public,
the agency's mission is one of "access and inclusion."
Accordingly, the Division makes sure that all programs
are accessible to children as well as adults. Art exhibits
that are "open" are allowed, but if "anyone
were to be barred from something, or an exhibit was
members only, then that is not open."164
An example of this accessibility mission is detailed
by a complaint that Florida faced ten years ago. According
to Pettijohn, the Christian Coalition complained about
an exhibit that was included in a general program the
agency funded. The exhibit, at Valencia Community College,
had "perceived religious themes with sexual overlays,"
and was under lock and key in a private room. When addressing
the complaint, the Division of Cultural Affairs did
not deal with it as a free expression issue, but as
an accessibility issue. Based on the exhibit's inaccessibility,
the agency determined that the state would not fund
the exhibit. Valencia Community College was free to
continue supporting it.165
Another criterion that could be used to restrict controversial
grants is "appropriateness." For example,
among the review criteria for its "Arts On Tour"
program, the Kentucky Arts Council lists "the quality
and appropriateness of artists and events presented
in recent years in relation to the presenter's community."166
Similarly, the Michigan Council for Arts and Cultural
Affairs references appropriateness in its criteria for
grant applications in the category of Community Services.
The Council's list of criteria poses the question: "Are
the project activities appropriate for the community?"167
In response to our inquiry about appropriateness, Lori
Meadows, executive staff advisor with the Kentucky Arts
Council, explained that this often relates to whether
an artwork can be adequately displayed, or an event
adequately performed, in a particular venue. In other
situations, she said, the Council feels it is important
to understand the local culture, so that touring works
are evaluated based on their fit within a community.
For example, "it wouldn't do any good to bring
in a group that would be so totally new to the community
without doing some sort of community outreach, give
it some kind of background or history to make sure it
interests the community."168 Understood in this
context, "appropriateness" is not necessarily
a proxy for "decency and respect"-type restrictions,
but it is vague enough to be used that way.
III. EXPERIENCE WITH FREE EXPRESSION POLICIES,
AND PROCEDURES FOR HANDLING CONTROVERSY
How Have Free Expression Policies Fared in Practice?
Most agencies we interviewed reported that their free
expression policies and funding decisions have not been
tested in actual controversies. There are probably a
number of reasons for this.
Agencies in some states, such as New York and California,
seem to have solid political support and forthrightly
proclaim their artistic freedom principles. As Richard
Schwartz of New York's Council on the Arts reports,
the agency has faced "nothing more than scattered"
challenges to its funding decisions, including requests
from one or two state legislators to stop providing
general operating support to the Brooklyn Museum and
Jewish Museum because of controversial shows.169 Despite
New York City Mayor Giuliani's withholding of funds
from the Brooklyn Museum because of its Sensation show,
the handful of state legislators' complaints did not
produce any serious threat to NYSCA. (The Jewish Museum
issue involved a 2002 exhibit, Mirroring Evil, in which
contemporary artists used Holocaust themes.)
Juan Carrillo, chief of grant programs for the California
Arts Council, says the arts funding controversies "have
skipped across us like a stone on a lake; we've been
slightly touched by it, but there's not much effect."
The council, Carrillo points out, has funded such potentially
controversial institutions as the Highways Performance
Space and Gallery, which was co-founded by Tim Miller,
one of the NEA Four. It has confronted no objections
to that venue's programming or any other council-funded
projects aside from "sporadic letters from the
Christian Right," none of which have developed
into more extensive or higher-profile complaints. The
council even funded the installation of Robert Mapplethorpe:
The Perfect Moment at the Berkeley Art Museum; and there
was "NOTHING. It was disappointing," Carrillo
continues jokingly. "No controversy developed."170
In Rhode Island, similarly, arts council director Randall
Rosenbaum attributes the lack of controversy to the
state's tradition of individual freedom and the strong
stand of the agency. "We may have people that disagree
with us on artistic reasons," Rosenbaum says, "but
no one has come after us on content restrictions."171
Another reason for the relative lack of controversy
is that agencies are doing their homework and reaching
out to their communities in advance. In the late 1990s,
for example, the Wisconsin Arts Board undertook public
outreach programs just as the board-funded Milwaukee
Chamber Theater was preparing to mount a production
of Angels in America, and when the play was generating
controversy in Charlotte/Mecklenburg. "The way
of dealing with it is to try to be preemptive of the
controversy," says George Tzougros, executive director
of the board.172
Similarly, when the Dallas Theater Center produced Angels,
it launched an ambitious PR program six months in advance
that included numerous meetings at Baptist churches,
social service organizations, and ladies' auxiliaries,
among other groups. The production was a huge success.173
The Ohio Arts Council also managed to anticipate controversy
and avoid political damage in 1994 when it funded the
Old Glory exhibit that later caused a firestorm in Arizona.174
Old Glory: The American Flag in Contemporary Art was
presented at the Cleveland Center for Contemporary Art,
with no major repercussions. The council's communication
director, Jami Goldstein, writes that the visual arts
program coordinator "believed that there weren't
problems in Cleveland because it was a less conservative
community than the one in Arizona (which probably was
demographically older - perhaps more veterans) and that
in Cleveland they really emphasized the educational
materials and opportunities. There was great signage
accompanying the exhibition and the museum offered lectures
which really helped frame the exhibition in an appropriate
context. We know, as I'm sure you do, that how an organization
chooses to educate the community can make all the difference
in the world as to how the programming/exhibition is
perceived by the community."175
Lisa Cordes of the Mid-America Arts Alliance notes that
this sort of outreach - "tools to educate and contextualize"
- are "most important free expression-wise."
The Alliance assists its affiliates with community outreach
through study guides, programming assistance, and other
educational tools. Because it runs a national touring
exhibit service that has had its share of controversy,
the MAAA has become expert in anticipating and managing
political crises over confrontational art. (One potential
crisis involved an exhibit of ceramics that included
a Christ with Mickey Mouse ears, but it opened without
a major incident.176)
The New Jersey State Council on the Arts also reports
an absence of challenges. Here, though, program officer
Beth Vogel suggests another reason: applicants are submitting
"safer" work.177 And some funding agencies,
likewise, are no doubt exercising caution. In addition
to states like Colorado, whose agency head frankly asserts
the need to avoid provoking a conservative legislature,
Susan Boskoff of the Nevada Arts Council reports no
serious problems - only a few complaints from legislators
on behalf of constituents - but this is probably because
the council is taking care to assure that the projects
it funds are non-controversial. Boskoff says she "[doesn't]
want to call it self-censorship," but adds: "there's
enough of an understanding regarding the fragility of
our funding. If something comes down the pike that seems
controversial, we might look into finding alternative
funding sources for them."178
Boskoff adds that some potentially controversial works
are legitimately denied funding on the basis of poor
quality. She describes one recent submission for a visual
arts fellowship that "could be defined as shock
art. It was needlepoint of genitalia, and the level
of artistry and quality was minimal." The councilperson
facilitating the discussion, however, focused on the
subject rather than the quality, and described the work
as "pornographic." "I had to inform the
chair that we don't fund pornography," Boskoff
says.179 This incident illustrates how easily judgments
about offensive content may blend into judgments about
lack of artistic merit.
On the other hand, the Nevada council has funded a Las
Vegas theater company that presents "gay, lesbian,
bisexual, and transgender plays," Boskoff reports.
"They've received funding and we haven't heard
anything. I think they're advertising to a specific
community. … Nevada is a very bizarre state; there's
a lot of nudity in the casinos, but it's also a very
conservative state."180
In Iowa also, agency officials shrink from an assertive
use of their statement on free expression. According
to the community development coordinator, Julie Bailey,
Iowa, like many other states, is going through "some
pretty severe budget situations, so we have a lot of
things to think about," in terms of possibly troublesome
grants. On the other hand, Bailey reports that the council
has only once in recent years rejected a potentially
controversial application - a project by dancer/choreographer
Bill T. Jones - and in that instance, she says the grant
denial was the result, in the end, of the applicant's
failure to provide sufficient detail on his project.181
Whether or not this was a pretext for denying funds
to a potentially controversial grant would be difficult
to determine.
The Chicago Department of Cultural Affairs is also aware
of political realities. Assistant Commissioner Pat Matsumoto
implies that funding for controversial art is provided
at the expense of less volatile projects: "There
are two issues there: whether or not it's valid for
taxpayers to provide funding for projects that challenge
freedom of expression for an artist who wishes to do
whatever he wishes to do - I would question that. And
there's the issue of taste and pornography; by protecting
those artists, we diminish the rights of the majority
of artists." On the other hand, Matsumoto acknowledges
that "what someone might describe as pornography,
… someone else [would describe] as artistic license."
Once a work is on display, "the presumption is
that the exhibitions team and the curator have looked
at it from the point of view of the policy, and it's
been approved."182
Not only do some arts officials feel that controversial
grants diminish the opportunities for less provocative
artists; in some instances, they fear for the survival
of funding itself. The director of one state agency
whose enabling statute supports artistic freedom says:
"We're strapped here, not fully staffed. In 1997,
we fought the most horrific battle for our life, and
we're still trying to move from being on the defensive
to the offensive. … Holding up the First Amendment
is not the best way to deal with a conservative legislature.
Our legislature is very conservative, and dealing with
First Amendment issues, they'll immediately close up
and vote against you." The agency would be eliminated,
this director continues, "if we had to go through
Karen Finley. There's absolutely no doubt; our legislature
just wouldn't put up with it. … At the time of
the NEA controversy there were all these lies that were
out there, and they're still out there now. ... Out
here in grassroots America, they still think of the
NEA that way. It's really sick-they still talk about
Serrano and Mapplethorpe."183
Yet another reason for the relative tranquility reported
by the state agencies we contacted may be that protests
over controversial art, when they occur, are usually
focused at the local level, so that the organization
presenting the work and, as in Cobb County and Charlotte/Mecklenburg,
the local funding agency become the targets. Many state
legislators who might otherwise be inclined to make
an issue out of tax funding for a "pornographic"
or "blasphemous" artwork may not see the issue
as close enough to home to warrant attention. State
legislators may also appreciate the economic benefits
that a vigorous arts sector brings to the state.
Sometimes, agencies become involved in controversies
that don't involve their own funding decisions. Washington's
Mary Frye, for example, reports that the state arts
council has received no complaints about funding, but
it did, briefly, become embroiled in a 1981 battle over
two murals in the state's legislative chambers when
it defended the artists in the midst of legislators'
efforts to remove the works. "At one point, the
Governor's Office instructed us to have no further involvement
in the controversy," writes Frye. "There was
an attempt to cast an 'inappropriate' label on one work,
but it was smoke and mirrors to disguise a lack of appreciation
for the art."184
Finally, of course, we did not contact every state agency
- for the most part, only those with free expression
statements in their statutes or public policies; and
of this group, several did not respond to our interview
requests. Among local agencies, we selected a random
sample and sought to interview only the 27 within the
sample that either had free expression statements on
their Web sites or that did not have Web sites at all.185
Other local agencies have faced funding controversies,
but they were not part of our random sample.
In Anchorage, Alaska, for example, controversy raged
for several years over local funding for the Out North
Theater, which presented gay-themed works by such groups
as "Pomo Afro Homo."186 In Los Angeles, the
County Arts Commission, which was part of our sample,
indicated that it had not been involved in any controversies,
but sent us to Mark Greenfield, director of the city-owned
Watts Towers Arts Center, which is operated by the city's
Cultural Affairs Department, an agency not on our list.
Greenfield described a 2001 incident in which satiric
paintings by Alex Donis that depicted police officers
dancing with gang members inspired such turmoil that
he and the city decided to close the show within three
days of its opening.
Greenfield says he was "told in no uncertain terms
that if I did not take the work down, it would be taken
down for me. … When you start dealing with something
like this, it becomes a consideration of public safety.
… People on the west side [of Los Angeles] said,
'why don't you call in the police to protect the exhibition,'
but I didn't want to call the police in, to cause another
situation with a confrontation between the police and
the community." Looking back, Greenfield says:
"My big mistake was, for a show that clearly dealt
with community issues, that maybe I hadn't read the
community well enough to know they wouldn't accept these
things."187
Procedures For Anticipating and Handling Controversy
How prepared are state and local agencies to handle
the next Angels in America, Piss Christ, or exhibit
of artwork using the American flag? According to Lawrence
Rothfield of the University of Chicago's Cultural Policy
Center, "careful crisis-management thinking before
the fact about the array of interests and sensibilities
within the public" is critically important. Without
it, "the very communities that should be drawn
into discussion will either reject it altogether or
enter it enraged."188 Yet, although many agencies
have free expression statements, relatively few have
specific procedures in place for anticipating and handling
political attacks that may arise from challenging art.
For example, Susan Rothschild, deputy commissioner of
the New York City Department of Cultural Affairs, feels
that "the Brooklyn Museum controversy was so unique"
that it cannot provide useful lessons for future conduct;
"these are issues that have to be dealt with on
a case-by-case basis."189 California, not having
experienced serious political threats to arts funding,
also takes a laissez-faire approach.
What would the California Arts Council do if controversy
did erupt? "At one time we had tucked under our
arms the Americans for the Arts or NASAA what-to-do-in-case
kind of thing," Juan Carrillo says. "We carried
that around for a while, but now we don't know where
it is - nothing has happened." Carrillo added that
in case of crisis, "I think we're well prepared.
But I assume we'd run to the NEA and NASAA and probably
some colleagues who have faced the same kind of thing."
Among them would be Ohio Arts Council director Wayne
Lawson, who weathered the Mapplethorpe controversy and
emerged with a free expression policy, although not
one that is currently on the front burner.190
Oregon is another state without official procedures
for handling controversy. "I'm not even sure what
our first step would be," says executive director
Christine D'Arcy. But "we believe in artistic freedom.
We don't get many complaints. Oregon is, I don't want
to say polarized … is equally balanced between
people who really value freedom of expression and people
who think projects funded with public funds should be
subject to content restrictions."191
Indiana, too, lacks a crisis communications policy.
It is "something we've thought about doing,"
says Indiana Arts Commission director Dorothy Ilgen,
but unfortunately, no actual plan has been developed.
In states like hers, Ilgen says, the government contribution
to arts organizations is relatively small. "People
vote with their feet. You can't offend community standards
very long and continue to survive."192
Another state official similarly lamented his agency's
ill-preparedness: "I wish we did have a protocol
for dealing with [controversial] grants; that would
make me comfortable. But we just keep our fingers crossed
- it's probably not a smart way." He added that
in his state, alliances with non-arts groups such as
libraries and churches have been helpful in addressing
controversies. "When you're going up against the
Christian Coalition, which we usually are, having a
church group behind us is very advantageous."193
We found four states - Minnesota, Idaho, Virginia, and
Ohio - with specific procedures for anticipating and
handling controversy. They range from rudimentary to
extensive.
Minnesota's are the most informal. Communications director
Sue Gens reports that the agency expects whichever staff
member is monitoring a peer panel review to "alert
the executive director that something is coming up that
could raise questions." "It's not that it
would affect whether or not the activity is funded,"
Gens assured us; "it's just good to be ready with
whatever rationale, responses, justifications - not
to be surprised, I guess, is the thing."194
Idaho's procedures are more detailed, though still relatively
brief. The agency's "Suggested Procedures in Event
of a Censorship Challenge" are:
1) Have an official statement or policy that focuses
on the process rather than the content.
2) Get the facts.
3) Collect materials that identify the artist, the exhibition,
and the context of the material.
4) Involve the Board and key staff in the communication
plan.
5) Use only a designated spokesperson.
6) If necessary, schedule a press conference and press
release.
7) Send material to appropriate legislators.
8) Tell the whole story; use a straightforward, rather
than a combative, approach.
9) Form coalitions with other arts organizations; activate
networks.
10) Link the public benefit of the arts, accountability,
and the free expression of ideas with the ICA mission
and with those of other arts organizations.195
The Virginia Commission for the Arts' formalized procedure
is divided into four stages: "First Steps,"
"Preparation," "Response," and "Long
Term." "First Steps" include immediately
alerting the executive director when reporters or "organizations
with political agendas" call to inquire about particular
grants. "Preparation" includes collecting
information about a potentially controversial project
(including its artistic significance); preparing talking
points; and notifying the chair of the commission, the
press secretary in the state office of education, the
governor's press office, and the director and lobbyist
of Virginians for the Arts. The "Response"
portion of the policy involves disseminating the talking
points to all members of the commission, keeping the
secretary of education and the governor's press office
informed of press contacts, touching base with legislators
in the affected districts, and responding to all published
criticism of the commission or a grantee with letters
to the editor. Finally, the "Long Term" section
provides:
° If the controversy lasts more than a few days,
the Commission will send a letter to the directors of
the arts organizations in the state that receive operating
support from the Commission. The letter will explain
the controversy and include the talking points for the
directors to use if contacted by the media.
° The Director will identify people with strong
interviewing skills to appear on local television talk
shows.
° The Director will work with the administrator
of the affected grantee to identify an appropriate person
to sign an op-ed piece for the local newspaper.196
Unlike the Idaho plan, which proposes the use of one
designated spokesperson, the Virginia procedure contemplates
that a number of people will be prepared to defend and
explain the funding decision and the artwork at issue.
Peggy Baggett, executive director of the Virginia Commission,
comments that agencies should "think about free
expression and diversity in the arts ahead of time,
so that you're not making policy on the fly when a reporter
is placing a microphone in your face." Everyone
should be in agreement on the agency's response: "It's
important that if I go out to defend a decision, my
board is backing me up." She stresses the need
to get out "ahead of the curve," and to have
confidence in your decision-making process."197
Mary Frye of Washington agrees: "once a grant program
has been publicly labeled by the press as pornographic
[how they love these stories], even the strongest of
your political supporters are going to shy away from
making public statements in defense of the arts. How
to re-spin the media is a highly desirable talent and
would need to work hand-in-hand with the political strategy."198
The fourth state with formal procedures, Ohio, has the
most detailed plan. The Ohio Arts Council's "Crisis
Communications Plan" is a six-page document containing
four "General Principles," eight "Crisis
Management Principles," and eleven "Crisis
Communications Principles," followed by two "Next
Steps." It was adapted from a plan prepared by
The Success Group, a management consultant, for the
North Market Development Authority, an agency that manages
a historical public marketplace in Columbus, Ohio.
Among the "General Principles" are that the
executive director be the sole spokesperson assigned
to handle inquiries; that a "crisis manager"
be appointed along with an "ad hocracy" that
is "best equipped" to deal with the situation;
and that "all OAC board members defer to the spokesperson
and rigorously refrain from all comment in all public
places or circumstances." The document specifies
that the council should brainstorm to anticipate possible
crises, prepare notification lists and notebooks for
every person with a possible role in handling the crisis,
"be wary of 'emergency macho'" responses,
and, "when an emergency does strike," trust
the "'ad hocracy'" rather than "an entrenched
or untested bureaucracy" within the agency. It
notes that this "ad hocracy" principle was
"articulated by former Governor of Pennsylvania
Dick Thornburgh in a paper on his management of the
Three Mile Island crisis," and adds: "It is
also a good idea, in an emotionally charged crisis for
the organization, to consult with outsiders who have
no emotional investment in the outcome; perspective
is often skewed by intense feelings."199
The Ohio plan goes on, under "Crisis Communications
Principles," to emphasize that "a media crisis
plan is as important as a business plan." It advises:
"when a crisis hits, do not circle the wagons:
Deal with the media head-on. … Do not duck the
press. Do not have the spokesperson's calls screened.
Make sure the spokesperson is always available. Nothing
will influence the press negatively faster than if they
sense you are hiding something. Work with them on the
story they are going to write anyway." In addition:
"if you have a bad story, tell it to the media
before they discover it"; "do not use jargon";
use simple concepts and repeat them; do not be defensive;
and "get everything out at once" ("omission
can be more damaging than admission, and nothing is
more certain to increase the shelf life of a story than
slow, steady leaking of truths").200
According to Ohio Arts Council communications manager
Jami Goldstein, the agency's procedures also involve
assembling a fact sheet describing "what the situation
is" and "what monies the individual or organization
received. … We send the fact sheet to the entire
legislature; they're our first and foremost priority
- so they're not blindsided by one of their angry constituents.
That's the primary step. We make sure the legislators
have no questions; then we basically field media calls."201
Sociologist Bethany Bryson criticizes the Ohio plan's
basic message that the agency's current structure will
be useless or even harmful. "If the plan is to
scuttle the council out the back door while 'experts'
distract the crowd, then they will abandon the very
structure that they hope to preserve at the moment when
it is most important to defend their goals and methods
- when the public is watching. If their current structure
really is harmful, they should change it," she
writes.202
Summarizing what has been learned over the difficult
years of funding battles, NASAA provides several pointers
for handling controversy. Most important, it says, is
to develop a message that "links benefits, accountability,
and freedom of expression" - in other words, to
integrate free expression as an intrinsic part of the
arts funding mission. NASAA also advises using only
designated spokespersons; creating messages targeted
to different audiences; framing the debate through accurate
information without getting combative; establishing
press strategies that include quick reaction time; and
building strong relationships with allies and constituents
well before the crisis hits.203
CONCLUSION
Official
statements supporting free expression in arts funding
can be helpful, especially if they are publicized on
agencies' Web sites and in other materials, and not
hidden in statute books. But free expression depends
less on official statements than on the political situation
in a particular locale, on the strength of leadership
within the funding agency and local arts community,
and on the ability to build alliances, set the terms
of debate, and lay the groundwork for public understanding
and support.
Many
arts officials have very real concerns about their vulnerability
to controversy - their lack of preparation, the fate
of their already tenuous funding - and for some of them,
artistic freedom is still too hot a subject to be discussed
without risk of adverse consequences. On the other hand,
there is an emerging sense that the traumas of the 1990s
are behind us, that religious-right objections to art
with feminist, gay, or allegedly blasphemous content
does not represent a majority viewpoint, and that a
proactive stance in favor of artistic freedom is not
only politically viable but a necessary element of public
arts funding.
As
one NEA staffer commented during the attacks on Piss
Christ: "Controversy has always been endemic to
art. … Even as far back as Caravaggio, people
complained because he painted the Virgin too naturalistically
with dirty feet."204
RECOMMENDATIONS*
°
Create a free expression policy - or dust off one that
is already on the books.
°
Undertake educational campaigns about artistic freedom.
Involve the community.
°
Create opportunities for non-polarizing dialogue about
controversial art.
°
Anticipate and prepare for controversies - if necessary,
months in advance - through education and outreach.
° Build alliances both within and outside the arts
community.
° Keep legislators and others in the power structure
informed. Invite them to openings, and thank them for
coming.
° Have procedures in place for handling controversies,
including a media communications plan.
* In addition to suggestions from those interviewed,
these recommendations also draw on the NCFE Handbook,
on NASAA's publication, "Facing Controversy,"
on communications from FEPP advisory board member Nan
Levinson, and on discussion at the April 26, 2003 conference
at Columbia University, The Future Is Us: Arts Advocates
of Tomorrow.
This report may be reproduced in its entirety
as long as the Free Expression Policy Project is credited
and a link to the Project's web site, www.fepproject.org,
is provided. No material may be reproduced in part or
in altered form without permission.
ENDNOTES
1. Rev. Donald Wildmon, letter concerning Serrano's
Piss Christ, Apr. 5, 1989, reprinted in Culture Wars:
Documents From the Recent Controversies in the Arts
(Richard Bolton, ed.) (NY: New Press, 1992), p.27.
2. Congressional Record, Vol. 135, No. 64, S5594 (May
18, 1989), reprinted in Culture Wars, supra n.1, p.29.
3. Id., p.30.
4. See Lucy Lippard, "Andres Serrano: The Spirit
and the Letter," Art in America, Apr. 1990, p.242.
For details on the Serrano controversy, see Steven Dubin,
Arresting Images: Impolitic Art and Uncivil Actions
(NY: Routledge, 1992), pp.96-101; Michael Brenson, Visionaries
and Outcasts: The NEA, Congress, and the Place of the
Visual Artist in America (NY: New Press, 2001), pp.92-97;
and other documents, including the Chronology, collected
in Culture Wars, supra n.1.
5. See Steven Weil, "Tax Policy and Private Giving,"
in Public Money and the Muse: Essays on Government Funding
for the Arts (Stephen Benedict, ed.) (NY: Norton, 1991),
p.180 (quoting NEA Acting Chair Hugh Southern's concern
that the NEA could become the "National Endowment
for Nice Art").
6. National Campaign for Freedom of Expression, NCFE
Handbook to Understanding, Preparing for, and Responding
to Challenges to Your Freedom of Artistic Expression
(Washington, DC: NCFE, 1998), p.ix.
7. National Assembly of State Arts Agencies, "Facing
Controversy: Arts Issues and Crisis Communications,"
The NASAA Advocate, Vol. 4, No. 1, n.d.
8. See Kevin Mulcahy, "The Government and Cultural
Patronage: A Comparative Analysis of Cultural Patronage
in the United States, France, Norway, and Canada,"
in The Public Life of the Arts in America (Joni Cherbo
& Margaret Wyszomirski, eds.) (E. Brunswick, NJ:
Rutgers U. Press, 2000), pp.145-48.
9. NCFE Handbook, supra n.6, p.1.
10. Because of logistical and staff constraints, we
were not able to search city and county ordinances for
possible free-expression policies at the local level
if such policies were not found through our Web searches
or other leads.
11. This was evidently the result in Hopper v. City
of Pasco, 241 F.3d 1067 (9th Cir. 2001), after a federal
court of appeals ruled that city officials had created
a "public forum" at city hall for the display
of art; hence, they could not censor works based on
perceived controversial content. For other court decisions
on government exhibit spaces, see Lebron v. National
RR Passenger Corp., 69 F.3d 650, modified, 89 F.3d 39
(2d Cir. 1995) (rejecting an artist's claim that Amtrak's
refusal to accept a political advertisement for its
large display space in New York's Pennsylvania Station
violated the First Amendment); Henderson v. City of
Murfreesboro, 960 F. Supp. 1292 (M.D.Tenn. 1997) (holding
that city officials' removal of a painting of a partial
nude from city hall exhibit space that had been designated
as a public forum violated the First Amendment); Claudio
v United States, 836 F. Supp. 1219 (E.D.N.C. 1993),
affirmed without opinion, 28 F.3d 1208 (4th Cir. 1994)
(rejecting a First Amendment challenge to the removal
of a painting displayed in a federal building lobby
as part of the Public Buildings Cooperative Use Act).
12. Congressional Record, supra n.2, pp.29-30.
13. Milton Cummings, Jr., "Government and the Arts:
An Overview," in Public Money and the Muse, supra
n.5, p.63; Elizabeth Kastor, "NEA Under Fire Over
Controversial Photo," Washington Post, June 7,
1989, C1.
14.
See the American Family Association's press release
on the NEA, July 25, 1989, reprinted in Culture Wars,
supra n.1, pp.71-72, and the Chronology and other documents
collected in Culture Wars. See also Judith Tannenbaum,
"Robert Mapplethorpe - The Philadelphia Story,"
50(4) Art Journal 71 (winter 1991); Arthur Danto, Playing
With the Edge: The Photographic Achievement of Robert
Mapplethorpe (Berkeley: U.Cal. Press, 1996); Elizabeth
Kastor, "Corcoran Cancels Photo Exhibit; Director
Cites Dear of Political Uproar over Mapplethorpe Show,"
Washington Post, June 13, 1989, C1; Barbara Gamarekian,
"Corcoran, to Foil Dispute, Drops Mapplethorpe
Show," New York Times, June 14, 1989, C22.
15. Cummings, supra n.13, p.64.
16. Bella Lewitzky Dance Foundation v. Frohnmayer, 754
F. Supp. 774 (C.D.Cal. 1991).
17. National Endowment for the Arts v. Finley, 524 U.S
569, 575-76 (1998); "The Independent Commission,
Recommendations on the Issue of Obscenity and Other
Content Restrictions," excerpt, in Culture Wars,
supra n.1, p.261.
18. Amendment to the National Foundation on the Arts
& the Humanities Act, 20 U.S.C. §954(d)(1);
see NEA v. Finley, supra n.17.
19. See Finley v. National Endowment for the Arts, 795
F. Supp. 1457 (C.D. Cal. 1992), affirmed, 100 F.3d 671
(9th Cir. 1996), reversed, 524 U.S. 569 (1998).
20. See Brenson, supra n.4, p.89; Mulcahy, "The
Government and Cultural Patronage," supra n.8,
p.164; Thomas Peter Kimbis, "Surviving the Storm:
How the National Endowment for the Arts Restructured
Itself to Serve a New Constituency," 27 Journal
of Arts Management, Law & Society 139 (summer 1997);
Jacqueline Trescott, "A Shrinking Canvas; NEA Chairman
Plans Huge Staff Cuts at Arts Agency," Washington
Post, Aug. 5, 1995, F3. Individual grants for jazz,
literature, and traditional arts and crafts survived
the 1995 legislation. "Why the exceptions?"
one columnist asked. An NEA spokesperson explained that
writers' groups "had banded together and hired
a lobbyist, and that Melanie Griffith (who as an actress
needs screenplays) had made a big hit in her meeting
with Newt Gingrich." Walter Robinson, "Axe
about to fall on the NEA," Art in America, Nov.
1995, p.27.
21. Jane Alexander, Command Performance: An Actress
in the Theater of Politics (NY: Public Affairs, 2000).
On the NEA's struggles during the 1990s, see Brenson,
supra n.4; Cummings, supra n.13; the Chronology and
documents collected in Culture Wars, supra n.1; Robinson,
"Axe about to fall on the NEA," supra n.20;
Carole Vance, "Reagan's Revenge: Restructuring
the NEA," Art in America, Nov. 1990, pp.49-55;
and the essays collected in The Cultural Battlefield:
Art Censorship and Public Funding (Jennifer Peter &
Louis Crosier, eds.) (Gilsum, NH: Avocus, 1995).
22. See the lower court decisions in Finley v. NEA,
supra n.19.
23. NEA v. Finley, supra n.17, 524 U.S. at 587, quoting
Regan v. Taxation With Representation, 461 U.S. 540,
548 (1983) and Cammarano v. U.S., 358 U.S. 498, 513
(1959). Justice Antonin Scalia agreed with the result
in Finley, but disagreed with the reasoning. The Court's
decision sustained the constitutionality of the decency
and respect law by "gutting it," Scalia asserted
in a concurring opinion. Scalia said that it was perfectly
constitutional to discriminate against artists on the
basis of their political or cultural viewpoint when
handing out government grants. Id., 590 (Scalia, concurring).
Justice David Souter was the only dissenter in Finley:
he argued that the law clearly, and unconstitutionally,
discriminated against "indecent" or "disrespectful"
viewpoints. Id., 600.
24. See, e.g., David Strauss, "The False Promise
of the First Amendment," in Unsettling "Sensation":
Arts-Policy Lessons From the Brooklyn Museum of Art
Controversy (Lawrence Rothfield, ed.) (New Brunswick,
NJ: Rutgers U. Press, 2001), p.44.
25. Senate Report No. 300, 89th Congress, 1st Session
(Committee on Labor and Human Resources, 1965), pp.3-4.
26. National Foundation on the Arts & the Humanities
Act, 20 U.S.C. §951(5) (original statute), now
20 U.S.C. §951(7). The new subsections (5) and
(6), added n 1990, state that the government "must
be sensitive to the nature of public sponsorship,"
that public funding "should contribute to public
support and confidence in the use of taxpayer funds,"
and that the arts and humanities should foster "mutual
respect for the diverse beliefs and values of all persons
and groups." See Julie Van Camp, "Freedom
of Expression at the National Endowment for the Arts:
An Opportunity for Interdisciplinary Education,"
30 Journal of Aesthetics 43, 56-57 (fall 1996).
27. Julie Van Camp, "National Endowment for the
Arts," in Encyclopedia of Aesthetics, Vol. 3 (NY:
Oxford U. Press, 1998), pp.333-34 (despite the Reagan
Administration's recommendation for a 50% cut, the NEA
budget was reduced by only 10%); see also Dubin, supra
n.4, p.282; Livingston Biddle, Our Government and the
Arts (NY: American Council on the Arts, 1988), p.316.
28. Mulcahy, "The Government and Cultural Patronage,"
supra n.8, p.163.
29.
Robert Brustein, "Requiem," The New Republic,
Mar. 27, 2000, pp.27-29. Brustein sarcastically placed
ceramics, adobe church preservation, lacemaking, and
"raven and eagle drumming" in the populist
category.
30. Paul DiMaggio et al., "The Role of Religion
in Public Conflicts Over the Arts in the Philadelphia
Area, 1965-1997," in Crossroads: Art and Religion
in American Life (Alberta Arthurs & Glenn Wallach,
eds.) (NY: New Press, 2001), p.119; see also Julie Van
Camp, "Indecency on the Internet: Lessons From
the Art World," in 1996-97 Entertainment, Publishing
and the Arts Handbook (Stephen Breimer et al., eds.)
(NY: Clark Boardman & Callaghan, 1996), pp. 255-75
(noting Congress's focus on visual depictions).
31. David Levy, president and director of the Corcoran
Gallery, quoted in Kimbis, supra n.20.
32. Arthur Levitt, Jr., "Introduction," Public
Money and the Muse, supra n.5, 24.
33. Dubin, supra n.4, pp.11, 231; see also William Honan,
"Congressional Anger Threatens Arts Endowment,"
New York Times, June 20, 1989, C15 (quoting former NEA
chair Livingston Biddle as noting "a confluence
of factors" contributing to the "worst firestorm"
in the agency's existence, and noting especially the
new "religious element").
34. E-mail from Professor Julie Van Camp, California
State University, Mar. 15, 2003.
35. See Brenson, supra n.4, p.90.
36. AFA press release, supra n.14; see also Cummings,
supra n.13, p.67 (describing Congressman Dana Rohrabacher's
characterization of the 1989 debates as "us against
a bunch of smug Ph.D types telling us what art is");
Kimbis, "Surviving the Storm," supra n.20.
37. On the other hand, by the mid-1990s, the NEA's press
department had developed good relationships with many
arts reporters and was able, by correcting misstatements,
to forestall some attacks. E-mail from Jennifer Dowley,
former director of NEA Museums and Visual Arts Program,
Mar. 19, 2003.
38. Final Report of the American Assembly, in Public
Money and the Muse, supra n.5, 259.
39. See, for example, the essays in The Politics of
Culture (NY: New Press, 2000) (Gigi Bradford et al eds.);
Public Money and the Muse, supra n.5; and The Public
Life of the Arts in America, supra n.8.
40. Paul DiMaggio & Becky Pettit, "Surveys
of Public Attitudes Toward the Arts: What Surveys Tell
Us About the Arts' Political Trials - and How They Might
Tell Us Even More," Arts Education Policy Review,
Vol. 100, No. 4 (Mar./Apr. 1999).
41. Paul DiMaggio & Bethany Bryson, "Public
Attitudes Toward Cultural Authority and Cultural Diversity
in Higher Education and the Arts," paper prepared
for The Arts of Democracy: The State, Civil Society
and Culture (Casey Blake, ed.) (Princeton, NJ: Woodrow
Wilson Center Press, forthcoming); see also Paul DiMaggio,
"Social Division in the United States: The Disparity
Between Private Opinion and Public Politics," paper
prepared for The Fractious Nation: Unity and Division
in Contemporary American Life (Jonathan Rieder, ed.)
(Berkeley: U. Cal. Press, forthcoming), p.1 (reports
of a "culture war" that has created "polarization,
fragmentation, and division in American society"
may be consistent with what we see on television and
in the press, but are not borne out by the facts).
42. Paul DiMaggio, "Social Division in the United
States," supra n.41, p.2; see also Paul DiMaggio
et al., "Have Americans' Social Attitudes Become
More Polarized?" 102 American Journal of Sociology
690-755 (1966); Steven Tepper, "The Culture Wars:
A Reassessment," background essay for Center for
Arts & Culture conference, Art, Culture, and the
National Agenda (1999), prepared as an occasional paper
for the Center for Arts and Cultural Policy Studies,
Princeton University (forthcoming) (examination of cultural
conflicts in American cities suggests that "brushfires"
are more common than "strident battles"; the
"vast majority took place without name calling
and attempts to discredit opponents").
43. See Margaret Wyszomirski, "Raison d'Etat, Raisons
des Arts: Thinking About Public Purposes," in The
Public Life of the Arts, supra n.8, p.50; and Joni Cherbo
& Margaret Wyszomirski, "Introduction,"
in the same volume, p.16; Margaret Wyszomirski, "Policy
Communities and Policy Influence: Securing a Government
Role in Cultural Policy for the Twenty-First Century,"
in The Politics of Culture, supra n.39, p.94 (it can
be argued that "many arts advocates have been unwittingly
complicitous" in the travails of the NEA "because
they have neglected key elements of what might be called
the intellectual and political infrastructure of cultural
policy").
44. "Facing Controversy," supra n.7.
45. E-mail from Roberto Bedoya, former director, National
Association of Artists' Organizations, Apr. 8, 2003.
46. Utah Arts Council Mission/Goals, www.arts.utah.gov/goals.html
(accessed 3/5/02); e-mails from Maryo Ewell, associate
director, Colorado Council on the Arts, Mar. 24, 2003,
Mar. 28, 2003; e-mail from Robert Lynch, director, Americans
for the Arts, Mar. 24, 2003; e-mail from Kelly Barsdate,
director of research, NASAA, Mar. 24, 2003.
47.
Minnesota State Arts Board, About the Arts Board, www.arts.state.mn.us/about/aab2.html
(accessed 4/10/03) (State Arts Society established in
1903; name changed to State Arts Council in 1963; renamed
Minnesota State Arts Board in 1976); Minn. Stat. §129D.0
48.
New York State Council on the Arts, About NYSCA, www.nysca.org/aboutnysca.html
(accessed 2/20/02).
49. Washington Arts Commission, Fiscal Year 2002 Annual
Report, p.4 (commission established in 1961);Washington
Rev. Code §43.46; South Carolina Code Ann. §60-15-10
(1962; revised 1967).
50. Paul DiMaggio, "Decentralization of Arts Funding
From the Federal Government to the States," in
Public Money and the Muse, supra n.5, p.219; John Kreidler,
"Leverage Lost: Evolution in the Nonprofit Arts
Ecosystem," in The Politics of Culture, supra n.39,
p.152.
51. Maryo Ewell, "Community Arts Councils: Where
They Came From," paper prepared for Americans for
the Arts and the Kenan Institute (fall 1999); e-mail
from Maryo Ewell, Mar. 24, 2003.
52. DiMaggio, supra n.50, p.219; Kreidler, supra n.50,
p.152; Mulcahy, "The Government and Cultural Patronage,"
supra n.8, p.146.
53. The NEA's congressional appropriation in 2003 was
$116.5 million, down from $176 million in 1992. Bruce
Weber, "Stratford-Upon-Main Street: Shakespeare
on Tour, Thanks to N.E.A.," New York Times, Apr.
23, 2003, E1. Federal legislation in 1990 increased
the percentage of NEA funds that must go to the states
as direct grants, up from 20% in the original law, to
a total of 35% by 1993. The states receive additional
NEA funds for separate programs such as challenge grants.
See Mulcahy, "The Government and Cultural Patronage,"
supra n.8, p.148; Cummings, "Government and the
Arts," supra n.13, pp.74-75. Thanks to Julie Van
Camp for explaining the intricacies of the state funding
formulas.
54. Statement by Jonathan Katz, executive director of
NASAA, at The Future is Us: Arts Advocates of Tomorrow
conference, Columbia University, Apr. 26, 2003.
55. In early 2003, New Jersey Governor James McGreevey
proposed to cut the entire $18 million budget of the
state arts council. A similar plan was offered in Missouri,
and a committee of the Arizona legislature recommended
zero funding as well. The previous year, California
cut its support for arts and cultural programs by 41%;
Massachusetts cut 62%. Arts advocates pointed out that
eliminating arts funding was not only socially but economically
destructive because of its adverse impact on businesses
that rely on cultural patrons, for example, restaurants
in downtown areas. Stephen Kinzer, "Some States
Propose End to Arts Spending," New York Times,
Feb. 20, 2003, E1; Jason Edward Kaufman, "U.S.
Arts Funding in Crisis," Forbes, Apr. 15, 2003,
www.forbes.com/lifestyle2003/04/15/cx_0415hot.html (accessed
4/18/03); National Assembly of State Arts Agencies,
Legislative Appropriations Annual Report: FY 2003, summary,
www.nasaa-arts.org/publications/legapp.shtml (accessed
2/25/03).
56. Cobb County Board of Commissioners, Resolution,
Aug. 10, 1993; Proposed Amendment to Section 3-2-15.1
of the Code of Cobb County, Georgia, July 23, 1993 (on
file at the Free Expression Policy Project).
57. Brian Britt, "Religious Right Runs Rampant:
State of the Arts in Cobb County," The Nation,
Feb. 14, 1994, pp.196, 198; Kathy Alexander, "Plan
would cut groups supporting gay lifestyle," Atlanta
Journal & Constitution, July 22, 1993, D3; Peter
Applebome, "Vote in Atlanta Suburb Condemns Homosexuality,"
New York Times, Aug. 12, 1993, A16; Applebome, "Avoiding
a Values Test, County Cuts All Arts Funds," New
York Times, Aug. 26, 1993, A16; letter to Cobb County
Commission Chairman Bill Byrne from state and national
ACLU staff and local attorneys representing several
arts organizations, Aug. 6, 1993 (on file at the Free
Expression Policy Project).
58. Telephone interview with Elizabeth Whitlock, cultural
affairs manager, Cobb County Parks, Recreation and Cultural
Affairs Dept., Feb. 27, 2003. Whitlock adds that "the
grants funding would have fizzled out on its own. Then,
they had a complaint and that just led to funding being
eliminated earlier."
59. "Money for the Arts: No Gays, Please, We're
Carolinian," The Economist, Apr. 26, 1997, p.26;
Tony Brown, "Charlotte Emerges Stronger From Anti-Gay
Upheaval," Plain Dealer, May 7, 2000, 51; see also
"Arts Funding Generates Controversy in Charlotte,
NC," Artswire Current, Apr. 8, 1997, www.nyfa.org/current_archive/1997/cur040897.html
(accessed 3/4/03).
60. The Economist, supra n.59.
61. Resolution of the Mecklenburg County Board of County
Commissioners in Support of Traditional Family Values
and Further, A Resolution of Support of the Arts and
Sciences, Where the Arts and Sciences Promote a Wholesome
Family Agenda and Further, a Resolution Relieving the
Arts & Science Council of the Distribution of County
Taxpayer Dollars to the Arts, Mar. 27, 1997 (on file
at the Free Expression Policy Project). The resolution
had the effect of revoking $2.5 million in funding to
the Council - about ¼ of its $11 million budget.
"Money for the Arts,," The Economist, supra
n.59. Nineteen arts organizations that relied on Council
grants for general operating support now had to petition
the commissioners directly, among them the arts education
center Spirit Square and an elementary school literacy
program. Geoff Edgers, "The Arts Under Attack,"
Charlotte Observer, Apr. 20, 1997, G1; Artswire Current,
supra n.59.
62. Artswire Current, supra n.59.
63. Edgers, supra n.60; quoted in Barry Yeoman, "Art
and States' Rights," The Nation, June 29, 1998,
p.31.
64. Brown, supra n.59; telephone interview with Donna
Drew Sawyer, vice president of communications, Arts
and Science Council of Charlotte/Mecklenburg, Feb. 27,
2003; e-mail from Norma Munn, chair, New York City Arts
Coalition, Apr. 28, 2003.
65. Quoted in Brown, supra n.59.
66. Id.
67. Telephone interviews with Bill Halbert, chief operating
officer, Arts and Science Council of Charlotte/Mecklenburg,
Aug. 14, 2002; Apr. 24, 2003. It is questionable whether
the First Amendment would permit government officials
to apply a general law against public nudity to prohibit
nudity in a theatrical production. "Everybody would
love to see a test case," Halbert says; but "who
can afford to do it?"
68. Quoted in Esperanza Peace and Justice Center v.
City of San Antonio, 2001 U.S.Dist. LEXIS 6259 *3-4
(W.D. Tex. 2001).
69. Id., *11-13.
70. Id., *15-25.
71. Id., *35-36, 59 n.92.
72. Telephone interview with John-Paul Batiste, then-executive
director, Texas Commission on the Arts, Apr. 4, 2002.
73. Telephone interview with Graciela Sanchez, executive
director, Esperanza Peace and Justice Center, Feb. 27,
2003.
74. Telephone interview with Len Detlor, director of
program services, New York City Department of Cultural
Affairs, June 3, 2002. To Detlor's knowledge, the policy
is not in writing.
75. The Holy Virgin Mary also had a background of floating
cherub-like images that, on close inspection, were cut-outs
of female buttocks. Other works that offended the mayor
included Damien Hirst's cross-sectioned animals in formaldehyde.
See Brooklyn Institute of Arts & Sciences v. City
of New York, 64 F. Supp. 2d 184, 191 (E.D.N.Y 1999);
and the essays in Unsettling "Sensation,"
supra n. 24.
76. Quoted in Brooklyn Institute of Arts & Sciences,
supra n.75, 64 F. Supp.2d at 191.
77. See David Halle, "The Controversy Over the
Show Sensation at the Brooklyn Museum, 1999-2000,"
in Crossroads, supra n.30, pp.149, 151. The controversy
was not entirely created by Giuliani: the museum publicized
Sensation with a tongue-in-cheek "Health Warning"
that it might cause "shock, vomiting, confusion,
panic, euphoria and anxiety," and an announcement
(later rescinded) that nobody under 17 would be admitted
unless accompanied by an adult. See Marjorie Heins,
Not in Front of the Children: "Indecency,"
Censorship, and the Innocence of Youth (NY: Hill &
Wang, 2001), pp.254-55. The museum's position was also
compromised by revelations of ethically questionable
arrangements with the show's sponsor, Charles Saatchi.
See James Cuno, "'Sensation' and the Ethics of
Funding Exhibitions," and Gilbert Edelson, "Some
Sensational Reflections," in Unsettling "Sensation,"
supra n.24, pp.162, 171; David Barstow, "Biggest
Donors Stood to Gain From Brooklyn Museum Show,"
New York Times, Oct. 31, 1999, Metro, 1; David Barstow,
"Art, Money and Control: Elements of an Exhibition,"
New York Times, Dec. 6, 1999, A1.
78. One commentator wrote that few New Yorkers "were
deceived by Giuliani's theatrics." Carol Becker,
"The Brooklyn Controversy: A View From the Bridge,"
in Unsettling "Sensation," supra n.24, p.19.
Giuliani later dropped out of the senatorial race for
personal reasons.
79. Dinitia Smith, "A Scientist Rallies Allies
for Besieged Art Museum," New York Times, Oct.
4, 1999, E1; Barbara Stewart, "Some Arts Groups
Silent on Museum Dispute," New York Times, Oct.
11, 1999, E3.
80. These amicus curiae briefs are on file at the Free
Expression Policy Project.
81. Brooklyn Institute of Arts & Sciences, supra
n.75, 64 F. Supp. 2d at 193, 199-203. The decision also
relied in part on Cuban Museum of Arts & Culture
v. City of Miami, 766 F. Supp. 1121 (S.D.Fla. 1991),
which found unconstitutional the city's refusal to renew
a museum's lease in retaliation for exhibiting works
by Cuban artists.
82. David Barstow, "Giuliani Ordered to Restore
Funds to Art Museum," New York Times, Nov. 2, 1999,
A1; Alan Feuer, "Giuliani Dropping His Bitter Battle
With Art Museum," New York Times, Mar. 28, 2000,
A1.
83. Elisabeth Bumiller, "Giuliani Names His Panel
to Monitor Art at Museums," New York Times, Apr.
4, 2001, B3; Elisabeth Bumiller, "Affronted by
Nude 'Last Supper,' Giuliani Calls for Decency Panel,"
New York Times, Feb. 16, 2001, A1.
84. "Manhattan: Mayor Names Cultural Advisers,"
New York Times, Feb. 25, 2003, B4; David Saltonstall,
"New City Art Panel Drawn Up," Daily News,
Feb. 25, 2003, www.nydailynews.com/news/local/story/62296p-58136c.html
(accessed 3/4/03).
85. Telephone interview with Len Detlor, program services
director, NYC Dept. of Cultural Affairs, June 3, 2002.
86. Connecticut Gen. Stat. §10-370.
87. Indiana Code Ann. §4-23-2-2(d); Maine Rev.
Stat. §404; Missouri Code s.185.040.1(4); New Hampshire
Code, §19-A; New York C.L.S. §301; Oklahoma
Stats. §162.
88. Colorado Rev. Stats. §23-9-102(1)(h). The historical
note to the Colorado law refers to a 1967 enactment
that had its source in Colorado Rev. Stats. 1963, §§3-18-10
and 3-18-11.
89. Kentucky Stats. §153.220(3); Michigan Code
§2.124(4)(4); New Jersey Code §52:16A-26(c).
90. Alabama Code §41-9-45(4); Arizona Rev. Stats.
§41-982(B)(4); Delaware Code §29-8727(2);
Idaho Stats. §67-5605(4); Montana Code Ann. §22-2-106(4);
Nevada Rev. Stats. §233C.090(1); North Dakota Code
§54-54-05(4); Rhode Island Gen. Laws §42-75-7(4);
South Carolina Code Ann. §60-15-10 (established
1962; statute revised 1967); Tennessee Code §4-20-104(4);
Wyoming Stat. §9-2-903(a)(v).
91. Mississippi Code Ann. §39-11-7(4).
92. Alaska Stat. §44.27.050(4); Florida Stat. §265.285(2)(f);
Official Code of Georgia Ann., §50-12-23(4); Nebraska
Code §82-312(4); Wisconsin Stat. §44.53(1)(d).
93. Pennsylvania Code §71-1530.7.
94. Minnesota Stat. §129D.04(2)(a).
95. Maryland Ann. Code art. 83A, §4-603.
96. Maryland Ann. Code art. 83A, §4-609.
97. South Dakota Code §1-22-1.
98. California Gov. Code §8753(a).
99. California Gov. Code §8750. According to Professor
Monroe Price, this was a retreat from the language of
the original 1965 law which grandly announced the "paramount"
position of California as a cultural center "in
the nation and the world." Monroe Price, "State
Arts Councils," 27 Hastings Law Journal 1183, 1183-84
n.4 (1976).
100. New York State Council on the Arts, About NYSCA,
www.nysca.org/aboutnysca.html (accessed 11/6/02).
101. Telephone interview with Richard Schwartz, chair,
New York State Council on the Arts, Mar. 20, 2002.
102. Rhode Island State Council on the Arts, "About
RISCA: General Information on the Rhode Island State
Council on the Arts," www.risca.state.ri.us/about.htm
(accessed 5/19/03) (quoting Rhode Island Gen. Laws §42-75-7(4)).
103. Telephone interview with Randall Rosenbaum, executive
director, Rhode Island State Council on the Arts, Mar.
20, 2002.
104. New Jersey Code §52:16A-26(c).
105. Telephone interview with Beth Vogel, program officer,
Education and Artist Services, New Jersey State Council
on the Arts, Mar. 10, 2003.
106. North Dakota Strategic Plan, www.state.nd.us/arts/new_on_site.htm
(accessed 3/6/03).
107.
E-mail from Janine Webb, executive director, North Dakota
Council on the Arts, Mar. 6, 2003; telephone interview
with Janine Webb, Feb. 6, 2003; see also Saving North
Dakota, www.in-forum.com/specials/savingnd/index2.cfm
(accessed 4/26/03).
108. Minnesota State Arts Board, Resolution (Aug. 25,
1989) (on file at the Free Expression Policy Project).
109. New Hampshire State Council on the Arts, Resolution
(Apr. 6, 1990) (on file at the Free Expression Policy
Project); e-mail from Rebecca Lawrence, director, New
Hampshire State Council on the Arts, Dec. 19, 2002.
110. Wisconsin Arts Board, "Our Mission,"
arts.state.wi.us/static/general.htm (accessed 4/17/02).
The same Web page includes the statutory language ("encourage
and assist freedom of artistic expression," Wisconsin
Stat. §44.53(1)(d)); and the Wisconsin Arts Board's
informational brochure repeats the "Mission Statement"
language. Wisconsin Arts Board (2001), p.2.
111. Telephone interview with George Tzougros, executive
director, Wisconsin Arts Board, Apr. 4, 2002.
112. "Use of Funds: Policies," Idaho Commission
on the Arts, www2.state.id.us/arts/grants.htm#policies
(accessed 11/6/02).
Even the NEA, although bound by the decency and respect
law, highlights artistic freedom in its 2003-2008 Strategic
Plan, which prominently states that "artistic work
and freedom of expression are a vital part of any democratic
society," and also excerpts the "freedom of
thought, imagination, and inquiry" language from
its enabling law. National Endowment for the Arts, Strategic
Plan 2003-2008, pp.3, 4, www.nea.gov/learn/Stragegic/FY2003-2008StrategicPlan.pdf
(accessed 4/18/03).
113. Nevada Arts Council, Artists' Fellowship Guidelines
(1999-2002) (on file at the Free Expression Policy Project).
114. Telephone interview with Susan Boskoff, executive
director, Nevada Arts Council, Mar. 25, 2002.
115. Georgia Council for the Arts, Grant Guidelines:
Fiscal Year 2003 (2002), p.2, www.gaarts.org/pdfdocs/guides03.pdf
(accessed 11/6/02).
116. Telephone interview with Betsy Baker, then-executive
director, Georgia Council for the Arts, Mar. 20, 2002.
117. In addition to the states mentioned in the text
- New York, Rhode Island, North Dakota, New Jersey,
Minnesota, New Hampshire, Wisconsin, Idaho, Nevada,
and Georgia - these are: Indiana (which simply reproduces,
as an appendix to the Indiana Arts Commission Policy
Manual, the 1965 law outlining the Council's "Purposes
and Duties," among them "to encourage and
assist freedom of artistic expression essential for
the well-being of the arts"); Maine (whose Web
site notes, as part of the Maine Arts Commission's mission,
to "encourage and assist freedom of artistic expression
for the well-being of the arts," www.mainearts.com/about/mission.shtml
(accessed 4/25/03)); and Montana (whose Web site reproduces
the statutory language listing among the duties of the
Montana Arts Council "to encourage and assist freedom
of artistic expression essential for the well-being
of the arts," www.art.state.mt.us/about/about_mission.htm
(accessed 4/25/03)). It is possible that despite our
searches, we overlooked free expression statements on
some agency sites.
118. Telephone interview with Charlotte Fox, executive
director, Alaska State Council on the Arts, Dec. 11,
2002.
119. Missouri Code §185.040.1(4).
120. Missouri Arts Council, "What is the Missouri
Arts Council: A Brief Overview," www.missouriartscouncil.org/html/about.shtml
(accessed 4/17/03).
121. Telephone interview with Don Dyer, program development
specialist, Missouri Arts Council, Dec. 17, 2002; telephone
message from Don Dyer, Dec. 18, 2002. When we tried
to determine what happened to Dyer's draft, we learned
that he had resigned from the agency and that nothing
had been done regarding the proposed policy. Telephone
interview with Joan White, grants manager, Missouri
Arts Council, Apr. 24, 2003; e-mail from William Meerbott,
assistant director for administration, Missouri Arts
Council, Apr. 28, 2003.
122. Telephone interview with Fran Holden, executive
director, Colorado Council on the Arts, Dec. 18, 2002.
123. "About WSAC," www.arts.wa.gov (accessed
5/12/03); e-mail from Mary Frye, awards program manager,
Washington State Arts Commission, Feb. 26, 2003. Similarly,
the District of Columbia's arts agency told us that
it follows a free-expression policy (telephone interview
with Lionell Thomas, legislative and grants officer,
D.C Commission on the Arts & Humanities, Mar. 10,
2003), but this was not reflected in the documents they
faxed us, or on the commission's Web site.
124. Marja Mills, "Art Show Closed Amid Threats,"
Chicago Tribune, Feb. 28, 1989, 7.
125. Telephone interview with Rose Parisi, director,
artists' services, local arts agencies, and technical
assistance programs, Illinois Arts Council, Mar. 28,
2002.
126. Illinois Arts Council, Illinois Arts Council Position
on Freedom of Expression (1989) (on file at the Free
Expression Policy Project).
127. Telephone interview with Rose Parisi, Mar. 28,
2002.
128. Isabel Wilkerson, "Cincinnati Jury Acquits
Museum in Mapplethorpe Obscenity Case," New York
Times, Oct. 6, 1990, 1. For the legal definition of
"obscenity," see n.151.
129. Telephone interview with Julie Bailey, community
development coordinator, Iowa Arts Council, May 2, 2002.
130. Iowa Arts Council, General Policies and Priorities,
www.culturalaffairs.org/iac/guidebook/gb05.htm (accessed
11/6/02). An earlier, and longer, version of this statement
is found in NASAA's "Facing Controversy,"
supra n.7.
131. Oregon Arts Commission/Oregon Advocates for the
Arts, An Arts Policy for Oregon (July 1990) (on file
at the Free Expression Policy Project).
132. Telephone interviews with Christine D'Arcy, executive
director, Oregon Arts Commission, Apr. 2, 2002, and
Apr. 29, 2002.
133. Ohio Arts Council: Guiding Principles, n.d. (on
file at the Free Expression Policy Project); also found
in NASAA's "Facing Controversy," supra n.7.
134. Telephone interview with Jami Goldstein, communications
manager, Ohio Arts Council, Mar. 20, 2002.
135. Telephone interview with Sue Newman, deputy director,
Ohio Arts Council, Mar. 22, 2002.
136. Ohio Arts Council, Guidelines, www.oac.state.oh.us/guidelines/guide_intro.html
(accessed 2/23/02).
137. Telephone interview with Len Detlor, June 3, 2002;
see above.
138. City of Chicago, "Visual Arts," Department
of Cultural Affairs, www.ci.chi.il.us/CulturalAffairs/VisualArts
(accessed 11/6/02).
139. Telephone interview with Pat Matsumoto, assistant
commissioner, Department of Cultural Affairs, City of
Chicago, May 2, 2002.
140. Arts Council of Winston-Salem and Forsyth County,
"Value Statement," www.intothearts.org/valStat.html
(accessed 11/6/02); e-mail from Stephanie Nelson, Director
of Marketing and Grants, Arts Council of Winston-Salem
and Forsyth County, Mar. 13, 2003.
141. Portland, Oregon Regional Arts & Culture Council,
"About Us - Core Values," www.racc.org (accessed
4/18/03).
142. Santa Monica Arts Commission, "About Us: Mission
Statement,"
arts.santa-monica.org/sea/about (accessed 5/19/03).
143. Telephone interview with Hamp Simmons, cultural
affairs coordinator, Santa Monica Cultural Affairs Division,
June 7, 2002.
144. Louisiana Decentralized Arts Funding Program, www.crt.state.la.us/arts/decentrl.htm
(accessed 3/5/02).
145. Ohio Arts Council Percent for Art Program Guidelines,
www.oac.state.oh.us/percentforart/percent/pcntgl.htm
(accessed 2/23/02).
146. Telephone interview with Betsy Baker, Mar. 20,
2002.
147. See, for example, Vermont Arts Council, Opportunity
Grants Guidelines, 2001-2003, p.4 (no funding for events
that are "predominantly religious or sectarian");
Washington State Arts Commission, General Guidelines:
Policies and Procedures, FY 2002, p.3 (no funding for
events "not commonly recognized as a general public
event, that are an integral part of a specific religion
or promote a religious observance").
148. E.g., Kansas Arts Commission, Regulations and Policies
for All Grant Contracts (July 2, 2001) (no use of public
funds for "lobbying, religious services, private
functions, or any other non-public service function");
West Virginia Commission on the Arts Grants Book, www.wvculture.org/arts/grantsbk.html
(accessed 4/14/03) (no funding for, among other things,
dances, fundraisers, "country, pop or rock bands,"
and "magic acts").
149. Texas Gov't Code §444.021(b), as amended,
Acts 1995, ch. 323.
150. Texas Commission on the Arts, A Guide to Programs
and Services, www2.arts.state.tx.us/tcagrant/TXArtsPlan/Responsibilities.htm
(accessed 11/6/02); telephone interview with John-Paul
Batiste, then-executive director, Texas Commission on
the Arts, Apr. 4, 2002.
151. For expression to be legally suppressible because
obscene (and therefore without First Amendment protection),
it must: (1) taken as a whole, depict or describe specific
sexual or excretory activities in a manner that is "patently
offensive as measured by contemporary community standards";
(2) taken as a whole, appeal to a "prurient"
- i.e., a "shameful or morbid" - interest
in sex or excretion; and (3) in the judgment of a reasonable
person, lack "serious literary, artistic, political,
or scientific value." Miller v. California, 413
U.S. 15, 24 (1973); Brockett v. Spokane Arcades, 472
U.S. 491 (1985); Pope v. Illinois, 481 U.S. 497 (1987).
152.
Telephone interview with John-Paul Batiste, Apr. 4,
2002.
153. Id.
154. Quoted in Associated Press, "Veterans Protest
Flag Exhibit," Mar. 26, 1996, artscenecal.com/ArticlesFile/PhoenixMsmFile/PAMAP0396.html
(accessed 3/13/03); see also Michael Kiefer, "Legionnaire's
Disease," Phoenix New Times, Mar. 4, 1996, www.phoenixnewtimes.com/issues/1996-04-04/news3.html/1/index.html
(accessed 3/13/03); NASAA, "Facing Controversy,"
supra n.7; Old Glory: The American Flag in Contemporary
Art (Cleveland: Cleveland Center for Contemporary Art,
1994) (the catalog for the exhibit, which was funded
in part by the Ohio Arts Council).
155. Arizona Rev. Stats. §41-986(G).
156. Arizona Rev. Stats. §41-982(B)(4).
157. See the discussion of NEA v. Finley, above; Texas
v. Johnson, 491 U.S. 397 (1989) (prohibition on flag
desecration is unconstitutional).
158. Quoted in e-mail from Hedy Weinberg, executive
director, ACLU of Tennessee, Mar. 12, 2002.
159. Conversation with Svetlana Mintcheva, Arts Advocacy
Coordinator, National Coalition Against Censorship,
July 3, 2002; see also Press Release, "National
Coalition Against Censorship Slams Tennessee Arts Commission's
'No Nudes' Policy," Mar. 21, 2002, www.freeexpression.org/newswire/0321_2002.htm
(accessed 4/17/03).
160. Telephone interviews with Rich Boyd, executive
director, Tennessee Arts Commission, Oct. 28, 2002;
Mar. 5, 2003.
161. Tennessee Code Ann. §39-17-01; e-mail exchanges
with Hedy Weinberg, executive director, Tennessee ACLU;
Barry Friedman, Professor of Law, New York University,
Feb.-Mar. 2003.
162. Telephone interviews with Cindy Bingham, director
of Aspen-Snowmass Council for the Arts, doing business
as the Red Brick Center for the Arts, Feb. 27, 2003,
Mar. 21, 2003.
163. Telephone interview with Martha Yancey, grants
director, Arts Council of Greater Baton Rouge, Mar.
21, 2003.
164. Telephone interviews with JuDee Pettijohn, director,
Florida Division of Cultural Affairs, Dec. 11, 2002;
Mar. 6, 2003.
165. Id. Another Florida incident, in 2001, involved
threats by a few state legislators to cut funding to
Florida Atlantic University because its theater department
had staged Terrence McNally's play Corpus Christi, which
features a gay Christ figure. The incident evidently
did not involve the Division of Cultural Affairs, and
the school refused to cancel the remaining performances.
Associated Press, "Florida College Could Lose State
Funding Over Gay Christ Play," Mar. 30, 2001, www.freedomforum.org/templates/document.asp?documentID=13564
(accessed 4/17/03).
166. Kentucky Arts Council, Guidelines for FY2003: Kentucky
Arts On Tour Grant Program, www.kyarts.org/guide/prog3/aot_gdl.htm
(accessed 3/3/03).
167. Michigan Council for Arts and Cultural Affairs,
Review Criteria, www.michigan.gov/documents/HAL_MCACA_AP_Gdlns04_58101_7.pdf
(accessed 3/6/03). Similarly, Illinois' Short Term Artists
Residency Program notes "quality and appropriateness
of the activity planned" among its evaluation criteria.
Illinois Arts Council, Short Term Artists Residency
Program, www.state.il.us/agency/iac/Guidelines/opendeadlines/STAR.pdf
(accessed 4/28/03). Other examples are Ohio's "Percent
for Art" program, which bars works "that would
be inappropriate or out of place in or on the building,"
Ohio Arts Council Percent for Art Program Guidelines,
www.oac.state.oh.us/percentforart/percent/pcntgl.htm
(accessed 2/23/02); and the Oregon Arts Commission's
"Percent for Art" program, which directs its
selection committee "to select artwork appropriate
for each building." Oregon Arts Commission, Percent
for Public Art Program, www.oregonartscommission.org/public_art/?r=17&acc=0
art.econ.state.or.us/programs/percent.htm (accessed
2/29/03).
168. Telephone interview with Lori Meadows, executive
staff advisor, Kentucky Arts Council, Apr. 2, 2002.
169. Telephone interview with Richard Schwartz, chair
of NYSCA, Mar. 20, 2002.
170. Telephone interview with Juan Carrillo, chief of
grant programs, California Arts Council, Mar. 26, 2002.
171. Telephone interview with Randall Rosenbaum, Mar.
20, 2002.
172.
Telephone interview with George Tzougros, Apr. 4, 2002.
173. Statement by Robert Yesselman, director, Dance/NYC,
at The Future is Us: Arts Advocates of Tomorrow conference,
Columbia University, Apr. 26, 2003.
174. Old Glory: The American Flag in Contemporary Art,
supra n.154. See the description of the controversy
over Old Glory in Phoenix, Arizona, above.
175. E-mail from Jami Goldstein, Mar. 14, 2003.
176. Telephone interview with Lisa Cordes, director
of development and communications, Mid-America Arts
Alliance, Feb. 28, 2002.
177. Telephone interview with Beth Vogel, Mar. 10, 2003.
Vogel did note a 2001-02 brouhaha over the state's poet
laureate, Amiri Baraka (formerly, Leroy Jones), who
wrote a poem about the September 11, 2001 terrorist
attacks on the World Trade Center which suggested that
Jews knew in advance of the attacks. The arts council
received many phone calls after Governor McGreevey called
for Baraka's resignation, but the poet laureate was
actually a program of the state's Council for the Humanities.
178. Telephone interview with Susan Boskoff, Mar. 25,
2002.
179. Id.
180. Id.
181. Telephone interview with Julie Bailey, May 2, 2002.
182. Telephone interview with Pat Matsumoto, May 2,
2002.
183. Telephone interview with executive director of
a state arts agency who asked to be unnamed, May 3,
2002.
184. E-mail from Mary Frye, Feb. 26, 2003.
185. Appendix B shows which local agencies we contacted.
186. See "New York Audiences Get a Choice …
Will San Antonio and Anchorage Be So Lucky?" Censorship
News Online (summer 1998), www.ncac.org/cen_news/cn70corpuschristi.html
(accessed 4/24/03) (reporting that in 1997, the Anchorage
Assembly stripped Out North of municipal funds for failing
to produce only art that is "strictly mainstream
... that you would take your whole family to").
187. Telephone interview with Mark Greenfield, director,
Watts Towers Arts Center, June 7, 2002. Greenfield said
the Arts Center suggested that after the show was taken
down, a dialogue might be arranged between the artist
and the members of the community who had proved so closed
to his work, but Donis declined. See also Press Release,
Sept. 27, 2001, www.alexdonis.com/war/press2.htm (accessed
4/24/03); "Free Speech Groups, Artists, Protest
Removal of Exhibit," Oct. 11, 2001, www.ncac.org/issues/alexdonis.html
(accessed 4/24/03).
188. Rothfield, "Introduction," in Unsettling
"Sensation," supra n.24, p.8
189.
Telephone interview with Susan Rothschild, deputy commissioner,
New York City Department of Cultural Affairs, June 3,
2002.
190. Telephone interview with Juan Carrillo, Mar. 26,
2002.
191. Telephone interviews with Christine D'Arcy, Apr.
2, 2002, Apr. 29, 2002.
192. Telephone interview with Dorothy Ilgen, director,
Indiana Arts Commission, Mar. 10, 2003.
193. Telephone interview with an agency official who
asked to be unnamed, May 3, 2002.
194. Telephone interview with Sue Gens, communications
director, Minnesota State Arts Board, Apr. 1, 2002.
195. Idaho Commission on the Arts, "Suggested Procedures
in Event of a Censorship Challenge" (on file at
the Free Expression Policy Project).
196. Virginia Commission for the Arts, "Response
to Controversies about Commission Grantees" (on
file at the Free Expression Policy Project).
197. Telephone interview with Peggy Baggett, executive
director, Virginia Commission for the Arts, Dec. 12,
2002.
198. E-mail from Mary Frye, Feb. 26, 2003.
199. Ohio Arts Council, "Crisis Management and
Communications" (Feb. 10, 1998) (on file at the
Free Expression Policy Project).
200. Id. (italics in the original).
201. Telephone interview with Jami Goldstein, Mar. 20,
2002.
202. E-mails from Professor Bethany Bryson, University
of Virginia, Mar.-Apr. 2003.
203. "Facing Controversy," supra n. 7.
204. Susan Lubowsky, then-director of the NEA Visual
Arts Program, quoted in Kastor, "NEA Under Fire,"
supra n.13.
For
More Information please go online to: Free
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