Public funding of controversial art
By Bill Kenworthy
First Amendment Center legal research assistant
and Kyonzte Hughes
Throughout history artists have produced works which tested society’s
standards of decency. Society, or parts of it, may respond to these
controversial works with harsh criticism and scorn. In free societies, artists
may produce any type of work that their talent, imagination and means can
support, whether it is controversial or not. However, the question arises: Do
artists have the same freedom when their art is publicly funded by taxpayer
The U.S. Supreme Court has made clear that the government is not required to
subsidize artistic expression with public funds.1 But the
Court has also found that once it does decide to provide funds for arts
programs, the government cannot withdraw that funding, thus censoring certain
works, because it disagrees with the viewpoint expressed in the work. In other
words, while the government has great flexibility in determining which artists
and programs to fund, it must do so in a manner consistent with the First
Amendment and cannot do so in a vague or viewpoint-based way. As stated by the
National Coalition Against Censorship, public funding for the arts does not
allow the government to play the role of censor.
That being said, in 1989 Congress amended the law that created the National
Endowment of the Arts to bar the use of NEA funds “to promote, disseminate, or
produce materials which in the judgment of [the NEA] may be considered obscene,
including but not limited to, depictions of sadomasochism, homoeroticism, the
sexual exploitation of children, or individuals engaged in sex acts and which,
when taken as a whole, do not have serious literary, artistic, political, or
scientific value.” The NEA required all grant recipients to certify in advance
that none of the funds would be used “to promote, disseminate, or produce
materials which in the judgment of the NEA … may be considered obscene.” In
addition, Congress eliminated $45,000 from the NEA’s budget.
The changes to the law came about as a reaction to two controversial works
that were being shown in various U.S. cities in 1989. The first was the infamous
“Piss Christ,” a photograph of a crucifix immersed in urine, by Andres Serrano,
who had received a $15,000 grant from the Southeast Center for Contemporary Art
which in turn received funding from the NEA. The second was a retrospective
exhibit of photographs by Robert Mapplethorpe titled “The Perfect Moment.” This
exhibit was arranged by the Institute of Contemporary Art at the University of
Pennsylvania using $30,000 of an NEA grant. The exhibit included homoerotic
photographs, images of sadomasochism and, according to critics, child
The uproar over the Mapplethorpe exhibit led to its cancellation at the
Corcoran Gallery of Art in Washington, D.C., and to the arrest and trial of the
director of Cincinnati’s Contemporary Art Center on charges of pandering and
obscenity after he allowed the exhibit to open at the center. The director,
Dennis Barrie, was acquitted after a much-publicized six-month trial.
The 1989 NEA rules were challenged and found to be unconstitutionally vague
by a U.S. District Court in California because the determination of what was
obscene was left in the hands of the NEA. Even before the 1991 ruling — Bella
Lewitzky Dance Foundation v. National Endowment for the Arts, 754 F. Supp.
774 (C.D. Cal. 1991) — members of Congress were debating ways to reform the
NEA’s grant process. In 1990, Congress adopted an amendment which directed the
NEA to take into consideration “general standards of decency and respect for the
diverse beliefs and values of the American public.”
This amendment led to a 1998 U.S. Supreme Court decision upholding the
decency standard enacted by Congress. The ruling in National
Endowment for the Arts v. Finley initially seemed a heavy blow to the
First Amendment as a bulwark protecting artistic expression. In NEA v.
Finley, the Court held that the NEA may consider public standards of decency
in deciding which artists should receive federal grants.
However, Justice Sandra Day O’Connor, writing for the majority, took the
sting out of the law. She explained that the decency standard was merely
advisory and simply added one more consideration to a variety of pre-existing
Though some might argue that the decency standard infringes upon free speech
because it allows the NEA to favor certain viewpoints over others, the consensus
is that the law poses no real threat given that the high court has characterized
it as a mere piece of advice rather than a law that must be enforced.
Art controversies didn’t end with the Finley case. In 1999, the
city-funded Brooklyn Museum of Art came under fire when it exhibited a Chris
Ofili painting of the Virgin Mary that featured sexually explicit cutouts
covered with elephant dung. The Catholic Church, as well as New York City Mayor
Rudolph Giuliani, were outraged. Giuliani denounced the exhibit as morally
offensive and threatened to cut off funding to the museum and terminate its
lease if it did not cancel the exhibit that included Ofili’s painting. The city
followed through and withheld the museum’s rent payment for October and filed a
state lawsuit to get the lease revoked.
The museum filed a suit in federal court against Giuliani claiming First
Amendment violations and seeking a permanent injunction against the city to keep
it from withholding funds. U.S. District Judge Nina Gershon, finding that
Giuliani’s actions violated the First Amendment, granted the museum a
preliminary injunction. Gershon also ordered the city to restore the museum’s
funding and stop eviction proceedings.
In February 2001, Giuliani again was offended by a piece of controversial
art. “Yo Mama’s Last Supper” is a 15-foot-tall photograph of a nude
African-American woman portraying Jesus surrounded by 12 black men portraying
the disciples. In his weekly radio address Giuliani stated, "If you want to
desecrate religion in a disgusting way, if you want to promote racism, if you
want to promote anti-Semitism, if you want to promote anti-Catholicism, if you
want to promote anti-Islamism, then do it on your own money. Do not use the
taxpayers' money to do that."
Giuliani then appointed a 20-member “decency commission” to review publicly
funded art and determine the works’ moral content. If the commission deemed an
artwork offensive to any religious, racial or ethnic group, the city could
withdraw funding. Giuliani based his authority to form the commission on an
obscure section of the City Charter that allowed him to appoint members of a
cultural-affairs committee to review art subsidized by the public. The
commission, which held some meetings but failed to do anything noteworthy, was
abolished in early 2002 by Giuliani’s successor, Michael Bloomberg.
Another work that inspired art-rage in some critics was Alma Lopez's collage
of the Virgin of Guadalupe in a floral bikini. The work was displayed in 2001 at
a state-run museum in Santa, Fe, N.M. Santa Fe Archbishop Michael Sheehan,
finding the portrayal insulting, expressed frustration that Catholic images were
being singled out by artists. “No one would dream of putting Martin Luther King
in Speedos and desecrating his memory by putting him in some outlandish outfit
... But somehow it seems open season on Catholic symbols.”
Although efforts were made to banish “Our Lady” from the museum, a state
judge refused to order its removal.
More recent controversies haven’t been confined to art with religious themes.
In 2001, the 9th U.S. Circuit Court of Appeals ruled that the city of Pasco,
Wash., had violated the rights of two artists when their works were censored by
the city. Even though the city had made an agreement with the artists to display
their work City Hall, the city prevented artist Janette Hopper from displaying
her work and ordered the work of artist Sharon Rupp to be taken down. The
pieces, which included nudity, were censored because of their “sexual” nature.
ACLU attorney Paul Lawrence summed up the case by saying, “The city of Pasco had
decided to open City Hall as a public forum for art. The courts have said
clearly that once government officials make such a decision, they cannot make
choices based on the content of the art — whether it’s controversial or offends
someone’s political sensibilities.”
Also in 2001, California State Fair officials determined that a work, which
had won “best sculpture,” was unfit for exhibition and was banned. Peter
Langenbach’s satirical sculpture depicts former President Clinton and Monica
Lewinsky in a bathtub. One fair official remarked that the work was “offensive
to some people and inappropriate for children.”
During the last few years, battles over censorship involving taxpayer funding
have mostly faded away, giving way to fights involving people offended by
certain works who have sought to have the pieces removed from public display.
Museums and galleries are still targets of would be censors, but increasingly,
any public space which displays art has become a target.
For instance, an anti-Bush painting included in an exhibit at the California
Department of Justice cafeteria in August 2005 generated controversy, leading to
complaints and the eventual removal of the painting. The painting shows the
continental United States, decorated with the American flag, sticking out of a
toilet with the words “T’anks to Mr. Bush” next to it. The painting was removed,
California’s attorney general said, out of sensitivity to the situation in the
Middle East, not because of public complaints.
In May 2006, the 44th annual Young People’s Art Exhibition in Colorado
Springs, Colo., considered by many in the area as the premier student art
exhibit in the region, was the scene of controversy. A 5-foot-by-4-foot painting
titled “Dismantled Stereotype” by Fountain Valley School senior Addie Green was
considered too controversial because it included an image associated with gay
pride and was banned from the show. The painting depicts a high school football
player standing near the back of a pickup. On the bumper is a small
football-shaped rainbow bumper sticker.
Also in May 2006, Brooklyn Borough Parks Commissioner Julius Spiegel ordered
an exhibition of art from graduate students of the Brooklyn College closed
because some of the works were “not appropriate for families.” Spiegel said the
exhibit violated a verbal agreement reached six years ago by the Parks
Department and Brooklyn College over use of the city-owned Brooklyn War Memorial
building. The student exhibit was relocated to another venue and re-opened a few
days later. Norman Siegel, a lawyer working on behalf of the students, filed a
suit in federal court.
With artwork being displayed in public places from City Halls to universities
to airports, the debate about the appropriateness of art in public places
continues to thrive.Updated June 2006
1This reasoning was articulated by U.S. District Judge
Nina Gershon in Brooklyn Institute of Art and Sciences v. City of New
York, 64 F.Supp. 2d 184, 200. Cases cited in her reasoning include:
Hannegan v. Esquire, 327 U.S. 146 (1946); Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 505 (1952); Perry v. Sindermann, 408 U.S. 593,
597 (1972); Regan v. Taxation with Representation of Washington, 461 U.S.
540, 548 (1983.) These cases are not art-specific cases.