Defending Rudy, Part II
The dispute over whether Rudolph Giuliani can force the Brooklyn Museum of Art to
withdraw from its new "Sensation"
art exhibit a painting depicting the Virgin Mary covered in elephant dung (and
surrounded, Chatterbox neglected to mention
last time, by photographs of genitals scissored out of porno magazines) has
entered federal court. The Brooklyn Museum hired Floyd Abrams to sue the mayor
and New York City. Here is what Abrams said in his Sept. 28 complaint for
declaratory and injunctive relief (which ought to be on the Web, but
isn't):
Although the City may generally choose to fund museums as it sees fit, it
may not make funding decisions for the purpose of punishing a museum's
constitutionally protected expression. Mayor Giuliani's repeatedly announced
decision to retaliate against the BMA is in violation of the First Amendment of the Constitution of the United
States, as made applicable to the States by the Fourteenth Amendment of the Constitution of the United
States.
Does a museum's constitutional right to free expression, which is
undeniable, really include the right to demand a government subsidy? (The city
of New York provides one-third of the Brooklyn Museum's budget.) To Chatterbox,
the notion is transparently absurd. But Abrams is the nation's
preeminent first-amendment lawyer, justly celebrated for defending the New
York Times in the Pentagon Papers case. Can he possibly have the law on his side?
(Incidentally, the Senate today jumped into the fight by voting unanimously to
withhold $500,000 from the Brooklyn Museum; click here to read
MSNBC's account.)
Guided by a pretty good news analysis piece in today's New York Times (which has
been reflexively anti-Giuliani in most of its coverage), Chatterbox looked up
the Supreme Court's most recent
ruling touching on this question, in a case where Karen Finley, the
performance artist famous for smearing chocolate on her breasts, sued the
National Endowment for the Arts for withdrawing a grant. The decision, by
Sandra Day O'Connor, gives much comfort to Abrams and the Brooklyn Museum by
flatly stating that "the First Amendment certainly has application in the
subsidy context." Here is some more language from the decision that bolsters
the Brooklyn Museum:
We have stated that, even in the provision of subsidies, the Government
may not "ai[m] at the suppression of dangerous ideas," Regan, supra , 461
U.S., at 550 (internal quotation marks omitted), and if a subsidy were
"manipulated" to have a "coercive effect," then relief could be appropriate.
See Arkansas Writers' Project, Inc. v. Ragland , 481 U.S. 221, 237 (1987)
(Scalia, J., dissenting); see also Leathers v. Medlock , 499 U.S. 439,
447 (1991) ("[D]ifferential taxation of First Amendment speakers is
constitutionally suspect when it threatens to suppress the expression of
particular ideas or viewpoints"). In addition, as the NEA itself concedes, a
more pressing constitutional question would arise if government funding
resulted in the imposition of a disproportionate burden calculated to drive
"certain ideas or viewpoints from the marketplace." Simon & Schuster,
Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U.S. 105, 116 (1991);
see Brief for Petitioners 38, n. 12.
But is the government, in withdrawing funding that indirectly subsidizes a
shit-smeared madonna, suppressing an idea, or merely saying it wants no
part in promoting it? (In practice, the most efficient way to publicize
an idea is to condemn it; the madonna painting has by now been reproduced,
albeit in miniature, in the Times and countless other news outlets. If
you missed it before, click here.)
Mister Justice Chatterbox humbly dissents from the Supreme Court majority's
view that the First Amendment has any "application in the subsidy
context." This puts Mister Justice Chatterbox in agreement with Antonin Scalia,
a jurist whom Chatterbox is not in the habit of praising. Scalia, though
concurring in the decision (which ultimately favored the NEA
against Finley), wrote a somewhat mocking critique of O'Connor's muddy
reasoning on this question that was so lucid that Chatterbox will give him the
last word:
The First Amendment reads: "Congress shall make no law ...
abridging the freedom of speech." U.S.Const., Amdt. 1 (emphasis added).
To abridge is "to contract, to diminish; to deprive of." T. Sheridan, A
Complete Dictionary of the English Language (6th ed. 1796). With the
enactment of §954(d)(1), 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 the enactment of this statute.
Avant-garde artistes such as respondents remain entirely free to
épater les bourgeois ; they are merely deprived of the additional
satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous
to equate the denial of taxpayer subsidy with measures " ' "aimed at the
suppression of dangerous ideas." ' " Regan v. Taxation with Representation
of Wash., 461 U.S. 540, 550 (1983) (emphasis added) (quoting Cammarano
v. United States , 358 U.S. 498, 513 (1959), in turn quoting Speiser v.
Randall , 357 U.S. 513, 519 (1958)). "The reason that denial of
participation in a tax exemption or other subsidy scheme does not necessarily
'infringe' a fundamental right is that--unlike direct restriction or
prohibition--such a denial does not, as a general rule, have any significant
coercive effect ." Arkansas Writers' Project, Inc. v. Ragland , 481 U.S.
221, 237 (1987) (Scalia, J., dissenting).
