The Supreme Court struck a blow for common sense last month. It was not a remarkably lusty blow, but in telling Karen Finley to get lost, the high court affirmed the right of Congress to say how the people's money may be spent.
Karen Finley is a performer best known for a monologue in which she coats her bare breasts with chocolate, the better to protest the oppression of women. Or something. In 1990 she applied to the National Endowment for the Arts for a grant to subsidize her performance.The NEA was then having a hard time of it. Members of Congress were outraged at the endowment's indirect subsidy of two exhibitions of art. One exhibition offered dirty photographs; the other included a blasphemous work of sculpture.
Congress reacted with one of its periodical fits of morality. An amendment was passed directing the NEA to ensure that its grants were judged not only by "artistic excellence," but also by "general standards of decency and respect for the diverse beliefs and values of the American public."
Obedient to the congressional mandate, the NEA denied Ms. Finley's grant. She brought suit, arguing that the amendment amounted to viewpoint censorship. What was "indecency" anyhow? The lower federal courts agreed that the 1990 amendment was void for vagueness, but on June 25 the Supreme Court ruled 8-1 that the NEA had acted within its authority.
The majority opinion, written by Justice Sandra Day O'Connor, was a tepid piece of work. The 1990 amendment, she said, was merely "advisory." It imposed no categorical rule against art that is indecent or disrespectful. In any event, such terms as "decency" and "respect" are no more selective or opaque than the criterion of "artistic excellence."
Justice Antonin Scalia, joined by Justice Clarence Thomas, delivered a characteristically astringent opinion concurring in the judgment. He didn't concur with much else. The 1990 amendment, in his view, was not merely advisory or hortatory. It REQUIRED the endowment to take "decency" and "respect" into account in judging applications. And that, he said, "is perfectly constitutional."
The First Amendment says that Congress shall make no law "abridging" freedom of speech. To abridge is to diminish, to contract, to deprive of. Ms. Finley and her fellow artistes had not been deprived of anything to which they were entitled by right.
"Congress did not ABRIDGE the speech of those who disdain the beliefs and values of the American public, nor did it ABRIDGE indecent speech. Those who wish to create indecent and disrespectful art are as unconstrained now as they were before enactment of this statute."
The Karen Finleys of the art world remain entirely free to produce work that offends the unsophisticated bourgeoisie. "They are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it."