40 U. Kan. L. Rev. 437 (1991-1992)
Subversive Subsidization: How NEA Art Funding Abridges Private Speech

handle is hein.journals/ukalr40 and id is 457 raw text is: 


Subversive Subsidization: How NEA Art Funding
Abridges Private Speech

DONALD W. HAwTHoRNE*


I. INTRODUCTION
   Recent efforts to change the terms on which the federal govern-
ment supports the arts have raised constitutionally troubling issues
about the power of government to promote beliefs by selectively
subsidizing the expression of particular viewpoints. In 1989, Con-
gress amended the National Endowment for the Arts' (NEA)
statutory mandate to prohibit funding of .obscene works, in-
cluding depictions of homoeroticism.1 Legislation enacted in 1990
has replaced this prohibition with a requirement that art should
be supported on the basis of general standards of decency and
respect for the diverse beliefs and values of the American public.'2
   Opponents of these viewpoint-based requirements charge that
such restrictions censor artists' speech. Dramatically lending sub-
stance to such fears, the NEA in 1990 rejected grants for a museum
because it had previously organized an exhibition of Robert Map-
plethorpe's photographs;3 foreseeing NEA            and Congressional re-
prisal, the Corcoran Gallery in Washington refused to show the
exhibition.4 Shortly thereafter, grants to         four individual artists


    * Law Clerk to the Honorable H. Lee Sarokin, District Court, N.J. B.A. 1982,
Princeton University; D. Phil. 1986, Oxford University; J.D. 1991, Yale University. The
author wishes to express his gratitude for the guidance, and the example, of Professor
Owen Fiss.
    1. Department of the Interior & Related Agencies Appropriation Act of 1990, Pub.
L. No. 101-121, § 304, 103 Stat. 701, 741-42 (1989) (codified as amended at 20 U.S.C.A.
§ 954(d) (Supp. 1991)). For the original proposed amendment offered by the bill's sponsor,
Senator Jesse Helms, and his introductory remarks, see 236 CONG. REc. S8806-08 (daily
ed. July 26, 1989).
    2. Arts, Humanities, and Museum Amendments of 1990, Pub. L. No. 101-512, §
103(b) (codified at 20 U.S.C.A. § 954(d) (Supp. 1991)).
    3. William H. Honan, Advisory Council Rejects Restriction on Arts Endowment's
Grants, N.Y. Tass, Aug. 6, 1990, at Ag. Two grants to the Institute for Contemporary
Art (ICA) in Philadelphia were rejected by the advisory council to the NEA in May
1990. These grants were subsequently restored in August 1990. As part of the regulatory
scheme under the 1989 amendment, NEA was required to notify Congress thirty days
before issuing grants to the ICA. Pub. L. No. 101-121, 103 Stat. 701, 738 (1989).
    4. Barbara Gamarekian, Corcoran to Foil Dispute, Drops Mapplethorpe Show, N.Y.
Tnsms, June 14, 1989, at C22.

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