By Kyonzte Hughes
Artists frequently test society’s standards of decency with works that outrage people. Society, or parts of it, may respond with harsh criticism and scorn. Artists are free to outrage people, and people are free to be outraged, but First Amendment issues may arise when art is publicly funded. Must the public, through the taxes it pays, subsidize art that offends people?
In a 1998 case that initially seemed a heavy blow to the First Amendment as a bulwark protecting free artistic expression, the U.S. Supreme Court upheld a decency standard enacted by Congress. In National Endowment for the Arts (NEA) v. Finley, the Court held that the NEA may consider public standards of decency in deciding which artists should receive federal grants.
However, Justice Sandra Day O’Connor, writing for the majority, took the sting out of the law. She explained that the decency standard was merely advisory and simply added one more consideration to a variety of pre-existing subjective criteria.
Though some might argue that the decency standard infringes upon free speech because it allows the NEA to favor certain viewpoints over others, the consensus is that the law poses no real threat given that the high court has characterized it as a mere piece of advice rather than a law that must be enforced.
In 1999, the city-funded Brooklyn Museum of Art came under fire when it exhibited a painting by Chris Ofili of the Virgin Mary that featured sexually explicit cutouts covered with elephant dung. The Catholic Church was outraged. New York City Mayor Rudolph Giuliani denounced the exhibit as morally offensive. Giuliani had been enraged over other pieces of controversial art, such as “Yo Mama’s Last Supper,” a 15-foot-tall photograph of a nude African-American woman portraying Jesus surrounded by disciples.
In response, Giuliani appointed a 20-member “decency commission” to review publicly funded art and determine the works’ moral content. If the commission deemed an artwork offensive to any religious, racial or ethnic group, the city could withdraw funding. Giuliani based his authority to form the commission on an obscure section of the City Charter that allowed him to appoint members of a cultural-affairs committee to review art subsidized by the public.
Giuliani also cut off funding to the Brooklyn Museum of Art. However, a federal court ruled that doing so violated the First Amendment’s guarantee of free expression. Consequently, the court forced the city to restore the museum’s funding and stop eviction proceedings against it.
In another instance of art-rage in 2001, artist Alma Lopez portrayed the Virgin of Guadalupe in a floral bikini. The collage was displayed in a state-run museum in Santa Fe, N.M. Santa Fe Archbishop Michael Sheehan, finding the portrayal insulting, expressed frustration that Catholic images were being singled out by artists. “No one would dream of putting Martin Luther King in Speedos and desecrating his memory by putting him in some outlandish outfit ... . But somehow it seems open season on Catholic symbols.”
Although efforts were made to banish “Our Lady” from the museum, a state judge refused to order its removal.