By Bill Kenworthy
Legal researcher
and Kyonzte Hughes
Contributing writer
Throughout history artists have produced works which tested society’s standards of decency. Society, or parts of it, may respond to these controversial works with harsh criticism and scorn. In free societies, artists may produce any type of work that their talent, imagination and means can support, whether it is controversial or not. However, the question arises: Do artists have the same freedom when their art is publicly funded by taxpayer dollars?

The U.S. Supreme Court has made clear that the government is not required to subsidize artistic expression with public funds.1 But the Court has also found that once it does decide to provide funds for arts programs, the government cannot withdraw that funding, thus censoring certain works, because it disagrees with the viewpoint expressed in the work. In other words, while the government has great flexibility in determining which artists and programs to fund, it must do so in a manner consistent with the First Amendment and cannot do so in a vague or viewpoint-based way. As stated by the National Coalition Against Censorship, public funding for the arts does not allow the government to play the role of censor.

That being said, in 1989 Congress amended the law that created the National Endowment of the Arts to bar the use of NEA funds “to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value.” The NEA required all grant recipients to certify in advance that none of the funds would be used “to promote, disseminate, or produce materials which in the judgment of the NEA … may be considered obscene.” In addition, Congress eliminated $45,000 from the NEA’s budget.

The changes to the law came about as a reaction to two controversial works that were being shown in various U.S. cities in 1989. The first was the infamous “Piss Christ,” a photograph of a crucifix immersed in urine, by Andres Serrano, who had received a $15,000 grant from the Southeast Center for Contemporary Art which in turn received funding from the NEA. The second was a retrospective exhibit of photographs by Robert Mapplethorpe titled “The Perfect Moment.” This exhibit was arranged by the Institute of Contemporary Art at the University of Pennsylvania using $30,000 of an NEA grant. The exhibit included homoerotic photographs, images of sadomasochism and, according to critics, child pornography.

The uproar over the Mapplethorpe exhibit led to its cancellation at the Corcoran Gallery of Art in Washington, D.C., and to the arrest and trial of the director of Cincinnati’s Contemporary Art Center on charges of pandering and obscenity after he allowed the exhibit to open at the center. The director, Dennis Barrie, was acquitted after a much-publicized six-month trial.

The 1989 NEA rules were challenged and found to be unconstitutionally vague by a U.S. District Court in California because the determination of what was obscene was left in the hands of the NEA. Even before the 1991 ruling — Bella Lewitzky Dance Foundation v. National Endowment for the Arts, 754 F. Supp. 774 (C.D. Cal. 1991) — members of Congress were debating ways to reform the NEA’s grant process. In 1990, Congress adopted an amendment which directed the NEA to take into consideration “general standards of decency and respect for the diverse beliefs and values of the American public.”

This amendment led to a 1998 U.S. Supreme Court decision upholding the decency standard enacted by Congress. The ruling in National Endowment for the Arts v. Finley initially seemed a heavy blow to the First Amendment as a bulwark protecting artistic expression. In 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.

Art controversies didn’t end with the Finley case. In 1999, the city-funded Brooklyn Museum of Art came under fire when it exhibited a Chris Ofili painting of the Virgin Mary that featured sexually explicit cutouts covered with elephant dung. The Catholic Church, as well as New York City Mayor Rudolph Giuliani, were outraged. Giuliani denounced the exhibit as morally offensive and threatened to cut off funding to the museum and terminate its lease if it did not cancel the exhibit that included Ofili’s painting. The city followed through and withheld the museum’s rent payment for October and filed a state lawsuit to get the lease revoked.

The museum filed a suit in federal court against Giuliani claiming First Amendment violations and seeking a permanent injunction against the city to keep it from withholding funds. U.S. District Judge Nina Gershon, finding that Giuliani’s actions violated the First Amendment, granted the museum a preliminary injunction. Gershon also ordered the city to restore the museum’s funding and stop eviction proceedings.

In February 2001, Giuliani again was offended by a piece of controversial art. “Yo Mama’s Last Supper” is a 15-foot-tall photograph of a nude African-American woman portraying Jesus surrounded by 12 black men portraying the disciples. In his weekly radio address Giuliani stated, "If you want to desecrate religion in a disgusting way, if you want to promote racism, if you want to promote anti-Semitism, if you want to promote anti-Catholicism, if you want to promote anti-Islamism, then do it on your own money. Do not use the taxpayers' money to do that."

Giuliani then 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. The commission, which held some meetings but failed to do anything noteworthy, was abolished in early 2002 by Giuliani’s successor, Michael Bloomberg.

Another work that inspired art-rage in some critics was Alma Lopez's collage of the Virgin of Guadalupe in a floral bikini. The work was displayed in 2001 at 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.

More recent controversies haven’t been confined to art with religious themes. In 2001, the 9th U.S. Circuit Court of Appeals ruled that the city of Pasco, Wash., had violated the rights of two artists when their works were censored by the city. Even though the city had made an agreement with the artists to display their work City Hall, the city prevented artist Janette Hopper from displaying her work and ordered the work of artist Sharon Rupp to be taken down. The pieces, which included nudity, were censored because of their “sexual” nature. ACLU attorney Paul Lawrence summed up the case by saying, “The city of Pasco had decided to open City Hall as a public forum for art. The courts have said clearly that once government officials make such a decision, they cannot make choices based on the content of the art — whether it’s controversial or offends someone’s political sensibilities.”

Also in 2001, California State Fair officials determined that a work, which had won “best sculpture,” was unfit for exhibition and was banned. Peter Langenbach’s satirical sculpture depicts former President Clinton and Monica Lewinsky in a bathtub. One fair official remarked that the work was “offensive to some people and inappropriate for children.”

During the last few years, battles over censorship involving taxpayer funding have mostly faded away, giving way to fights involving people offended by certain works who have sought to have the pieces removed from public display. Museums and galleries are still targets of would be censors, but increasingly, any public space which displays art has become a target.

For instance, an anti-Bush painting included in an exhibit at the California Department of Justice cafeteria in August 2005 generated controversy, leading to complaints and the eventual removal of the painting. The painting shows the continental United States, decorated with the American flag, sticking out of a toilet with the words “T’anks to Mr. Bush” next to it. The painting was removed, California’s attorney general said, out of sensitivity to the situation in the Middle East, not because of public complaints.

In May 2006, the 44th annual Young People’s Art Exhibition in Colorado Springs, Colo., considered by many in the area as the premier student art exhibit in the region, was the scene of controversy. A 5-foot-by-4-foot painting titled “Dismantled Stereotype” by Fountain Valley School senior Addie Green was considered too controversial because it included an image associated with gay pride and was banned from the show. The painting depicts a high school football player standing near the back of a pickup. On the bumper is a small football-shaped rainbow bumper sticker.

Also in May 2006, Brooklyn Borough Parks Commissioner Julius Spiegel ordered an exhibition of art from graduate students of the Brooklyn College closed because some of the works were “not appropriate for families.” Spiegel said the exhibit violated a verbal agreement reached six years ago by the Parks Department and Brooklyn College over use of the city-owned Brooklyn War Memorial building. The student exhibit was relocated to another venue and re-opened a few days later. Norman Siegel, a lawyer working on behalf of the students, filed a suit in federal court.

With artwork being displayed in public places from City Halls to universities to airports, the debate about the appropriateness of art in public places continues to thrive.

Updated June 2006
1This reasoning was articulated by U.S. District Judge Nina Gershon in Brooklyn Institute of Art and Sciences v. City of New York, 64 F.Supp. 2d 184, 200. Cases cited in her reasoning include: Hannegan v. Esquire, 327 U.S. 146 (1946); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505 (1952); Perry v. Sindermann, 408 U.S. 593, 597 (1972); Regan v. Taxation with Representation of Washington, 461 U.S. 540, 548 (1983.) These cases are not art-specific cases.