A Fine Whine

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 Amendmentof the Constitution of the United States, as made applicable to the States by the Fourteenth Amendmentof 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).