Government funding of the Arts in 60 (5) Duke Law Journal Volume (2011) via Concurring Opinions

“There Is Something Unique … about the Government Funding of the Arts for First Amendment Purposes”: An Institutional Approach to Granting Government Entities Free Speech Rights (pdf)

Leslie Cooper Mahaffey

Abstract:The common understanding of the First Amendment is that its purpose is primarily libertarian, serving to protect private citizens’ expression from government censorship. In the modern era, however, the government’s pervasive presence—especially in the role of funder of private activity—has blurred the lines between governmental and private speech. Further, the relatively new, increasingly influential government speech doctrine—which dictates that the government will not be subjected to First Amendment scrutiny when it is engaging in communication—has been the Supreme Court’s guidepost of late when the Court has been confronted with a case involving expression with both private and public elements.

This is an important article addressing the legal issues in my post on Cearta on whether galleries and museums should display offensive art and my two follow-up posterous posts here and here. The wonderful blog, Despatches from the Frontline of Popular Culture, has an excellent post on the

news of the National Portrait Gallery in Washington pulling an exhibit from the Hide/Seek exhibition. Over 18s can watch the video in question, A Fire in my Belly, here. It’s an interesting piece created by the artist David Wojnarowicz in 1987 to mark the death of his lover Peter Hujar, but was removed from the exhibition following pressure from the Catholic League. Religion and sex in art, and especially the ‘same sex’ variety, are often targets for moral outrage and attempts to prohibit. What is particularly interesting here is that it marks another attempt to censor work not by using more traditional avenues such as criminal law, but by the threat of withdrawing funding.

The National Portrait Gallery in Washington is part of the Smithsonian Institution, and, during the week, we learned that the Smithsonian’s governing board called for changes in how potentially objectionable exhibits are handled, while also standing behind the museum head accused of censorship for withdrawing the Wojnarowicz. The Board said it must be prepared to handle museum disputes and guard the freedom of curators against political pressure from Congress or other groups.