Bench Memos

This Day in Liberal Judicial Activism—November 5

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine.

In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

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