Freedom of Expression

at the National Endowment for the Arts

An interdisciplinary education project partially funded by the American Bar Association, Commission on College and University Legal Studies through the ABA Fund for Justice and Education

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Government support for the arts raises broad questions about

The role of government in funding the arts prior to the establishment of the National Endowment for the Arts is important to consider, as the long tradition of government support is often overlooked.

The Congressional declaration of purpose when the NEA was established in 1965 provides an important statement of the rationale for government support. Recent modifications in this declaration of purpose reflect newly heightened concerns about "indecency" in publicly funded art, as well as reservations about the appropriateness of arts funding in times of fiscal constraint.

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Discussion Questions
Government Support for the Arts: Before the NEA

Federal support for creative activities began with the U.S. Constitution itself, when the Founding Fathers authorized the establishment of a copyright system.(1) By allowing creators to retain the financial interests in their intellectual property, so the theory runs, they would be encouraged to create, which would be in the interests of the nation. It is worth considering that this encouragement to creators came at the expense of certain expressions of free speech, as the creators can restrict the use of their creations unless permission is given and/or royalties are paid. Thus the encouragement of creativity through copyright protection is a trade-off against the free expression of others. The copyright system encourages creativity through the "free market" system of capitalism. Creative people are allowed to earn income from their work.

Discussion QuestionsDo the interests of the nation in encouraging creativity and invention justify this restriction on speech? Does this approach to encouraging creativity seem to be effective? Are there other ways in which creativity might be encouraged, other than copyright protection?

Another way in which artistic and other creative work has been encouraged financially in the twentieth century is through tax deductions for charitable contributions to non-profit educational institutions, museums, symphonies, and other artistic organizations, an indirect government subsidy through the tax code. These long traditions of financial support for artists have not been challenged by Congress on the grounds that some of the artists produce work which is "obscene" or "indecent."

Discussion QuestionsHow does financial support through tax deductions differ from more recent support in the form of grants and contracts to artists by government agencies? With what justification does Congress tolerate "indecent" work subsidized through the copyright system and the tax code, but not through grants and contracts?

Government support was provided to artists during the Great Depression through the Works Project Administration (WPA). The purpose of this government largesse, however, seems to have been motivated primarily by the interest in providing work to the unemployed, not some special interest in promoting the arts.(2) The same motivation provided employment for artists and many others through the federal Comprehensive Employment and Training Act (CETA) of the 1970s. (3)

Numerous books and articles, by political theorists, legal scholars, and philosophers, have discussed the justifiability of public funding of the arts. (4) Debate about government funding of the arts should include broader considerations of the appropriate role of government.

Discussion QuestionsCritics of government funding point out that great art was produced before the U.S. government supported the arts. Is this argument decisive? What general principles can be elicited from such an argument? Should those general principles be applied to other government funding programs? For example, brilliant science was developed before the establishment of the National Science Foundation. Important medical research was accomplished before the establishment of the National Institutes of Health. Should government funding for those programs be terminated on these grounds? If not, why?

The National Endowment for the Arts

Since 1965, the most prominent source of government support for the arts has been from the National Endowment for the Arts. (Artists continue to benefit, of course, from copyright protection and tax deductions, and CETA funding continued through the early 1980s.)

The United States Congress stressed the importance of freedom of expression at NEA when the agency was established. In the Declaration of Purpose, Congress said that "it is necessary and appropriate for the Federal Government to help create and sustain . . . a climate encouraging freedom of thought, imagination, and inquiry."(5) Congress was concerned that NEA not become a cultural "czar." The U.S. Senate urged that

there be given the fullest attention to freedom of artistic . . . expression. One of the artist's . . . great values to society is the mirror of self-examination which they raise so that society can become aware of its shortcomings as well as its strengths. . . . The standard should be artistic . . . excellence.(6)
The minority report by the House of Representatives expressed concern that direct Federal support of the arts "could lead to attempts at political control of culture." (7) The report quoted playwright Thornton Wilder that "government should not subsidize a national theater because the voters would then become critics with the power of censorship at the polls." (8)

Many people over the past thirty-two years have argued that NEA should be shut down although for very different reasons. Some believe that the NEA simply cannot be trusted with the taxpayers' money. Others argue that attempts to draw guidelines on acceptable programming unavoidably infringe on freedom of expression and the arts should thus be left to the private sector. (9)

Others believe that, with the fiscal problems in the nation, NEA is a luxury we can no longer afford.(10) This fiscal concern is not a new one, however. At the beginning of the Ronald Reagan administration in 1981, David Stockman, then-director of the Office of Management and Budget, proposed cutting the NEA budget by 50%. In the face of a firestorm of opposition, the actual cut passed was only 10%. (11) In the budget cuts of 1995, the NEA was cut by 40% and the annual budget is now slightly less than $100 million per year.

Discussion QuestionsNEA supporters have pointed out that the agency's annual budget is equivalent to approximately five inches of a B-1 bomber. NEA critics argue that any government spending that is unjustified should be abolished as a matter of principle, regardless of the actual dollar size. Is the miniscule size of the NEA budget (relative to the overall Federal government budget) relevant in this debate? Why or why not?

Since the establishment of the NEA, Congress has required a range of administrative safeguards against an entrenched Federal bureaucracy dictating cultural policy for the nation. These safeguards in the decision-making process include the extensive involvement of persons outside government. Congress required the establishment of a National Council on the Arts to review proposals and make recommendations to the Chairperson before grants could be made. 20 U.S.C. 955 (f) The Council consists of 26 members appointed by the President, confirmed by the Senate. They are private citizens, not government employees, with "broad knowledge of, or expertise in, or . . . profound interest in, the arts and . . . established records of distinguished service, or achieved eminence, in the arts." 20 U.S.C. 955 (b)

Another protection against a "ministry of culture" is the use of peer review panels to evaluate all proposals. (Authority to establish such panels was provided in the original 1965 authorizing legislation. 20 U.S.C. 959 (a)(4)) Panelists were to reflect "a wide geographic, ethnic, and minority representation as well as . . . diverse artistic and cultural points of view." (20 U.S.C. 959 (a)(4). These diversity requirements were modified over the years, and are now codified in 20 U.S.C. 959 (c)(1)) Since 1990, Congress has required that panels include "lay individuals who are knowledgeable about the arts but who are not engaged in the arts as a profession and are not members of either artists' organizations or arts organization." (20 U.S.C. 959 (c)(2)) All applications are reviewed "solely on the basis of artistic excellence and artistic merit." (This provision was added in 1990, codified in 20 U.S.C. 959 (c).)

These safeguards have become a double-edged sword. The extensive involvement of "the public" (on the National Council and on the proposal review panels) could be seen as protection of the freedom of artists as against the federal bureaucrats who might otherwise impose their personal views on the artists (the "ministry of culture"). But the public involvement also could be seen as suppressing artistic freedom by restricting funded grants to the safe and the mainstream, as against "too-liberal" NEA staff members who might otherwise fund extreme, experimental works of art.

For a more detailed survey of Federal support of the arts, see the NEA document: "A Brief Chronology of Federal Involvement in the Arts."

Discussion Questions

Discussion QuestionsIs support for the arts an appropriate activity for the government? Should government support grants for artistic activity through organizations like the National Endowment for the Arts? Should it limit its support to the copyright system and charitable tax deductions to non-profit artistic organizations? On what grounds should it support the arts in any of these forms? Should the arts be supported because artistic activity is in the best interests of the nation? Should the arts be supported as a form of job training and employment for artists? Are there other grounds for support?

Discussion QuestionsDoes the complex organizational model at NEA (both full-time Federal staff members and extensive involvement of public members through the National Council and the panel review members) seem the best approach for ensuring good decision-making in determining which grant proposals should be funded? What are the strengths and weaknesses of this approach? Are there alternative approaches that might work better?


1. "The Congress shall have power . . . To promote the Progress of Science and useful Arts, by securing for limited times to authors and Inventors the exclusive right to their respective Writings and Discoveries." U.S. CONST. art. I, 8 Return to text

2. For a good summary of the WPA programs for artists, see Lawrence D. Mankin, "Federal Arts Patronage in the New Deal," in America's Commitment to Culture: Government and the Arts, edited by Kevin V. Mulcahy and Margaret Jane Wyszomirski (Boulder, CO: Westview Press, 1995), pp. 77-94. Return to text

3. For an excellent report on the CETA program for artists, see Steven C. Dubin, Bureaucratizng the Muse: Public Funds and the Cultural Worker (Chicago: the University of Chicago Press, 1987). Return to text

4. See, e.g., Edward Arian, The Unfulfilled Promise: Public Subsidy of the Arts in America (Philadelphia: Temple University Press, 1989); Leonard Garment, "Education and the Future of the Arts: The Second Annual Nancy Hanks Lecture on the Arts and Public Policy," in The Future of the Arts: Public Policy and Arts Research, edited by David B. Pankratz and Valerie B. Morris (New York: Praeger, 1990), pp. 15-23; Kevin V. Mulcahy and Margaret Jane Wyszomirski, eds., America's Commitment to Culture: Government and the Arts (Boulder, CO: Westview Press, 1995); Dick Netzer, The Subsidized Muse: Public Support for the Arts in the United States (Cambridge: Cambridge University Press, 1978); Arthur Schlesinger, Jr., "America, the Arts, and the Future: The First Nancy Hanks Lecture on the Arts and Public Policy " in Pankratz and Morris, op. cit., pp. 3-13; Ralph A. Smith and Ronald Berman, eds., Public Policy and the Aesthetic Interest (Urbana: University of Illinois Press, 1992); Margaret Jane Wyszomirski, editor, Congress and the Arts: A Precarious Alliance? (New York: American Council for the Arts, 1987).
Philosophers who have considered public funding of the arts include Monroe C. Beardsley, "Aesthetic Welfare, Aesthetic Justice, and Educational Policy," in The Aesthetic Point of View: Selected Essays, edited by Michael J. Wreen and Donald M. Callen (Ithaca, NY: Cornell University Press, 1982), pp. 111-124; Noel Carroll, "Can Government Funding of the Arts Be Justified Theoretically?" Journal of Aesthetic Education XXI (Spring 1987): 21-35; Ronald Dworkin, "Can A Liberal State Support Art?" A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), pp. 221-233; Joel Feinberg, "Not with my Tax Money: The Problem of Justifying Government Subsidies for the Arts," Public Affairs Quarterly VIII (April 1994): 101-123; Richard N. Manning, "Intrinsic Value and Overcoming Feinberg's Benefit Principle," Public Affairs Quarterly VIII (April 1994): 125-140; Thomas Nagel, "Public Benefits of the Arts and Humanities," Columbia Journal of Art and the Law IX (1985): 237-239; Daniel O. Nathan, "Liberal Principles and Government Support for the Arts," Public Affairs Quarterly VIII (April 1994): 141-151. Return to text

5. 20 U.S.C. 951(5); Pub.L. 89-209 (1965). This clause was redesignated 20 U.S.C. 951(7) in the 1990 Amendments, Pub.L. 101-512 Sec. 101. Return to text

6. S.REP. NO. 300, 89th cong., 1st Sess. 3-4 (1965). Return to text

7. H.R. REP. NO. 618, 89th cong., 1st Sess. 21 (1965). Return to text

8. Ibid. Return to text

9. Columnist William Safire has urged: " . . . [Freedom of expression . . . includes the audience's freedom . . . to resist being forced to pay for it. . . . The Federal Government should get out of the arts business because direct Federal support ultimately conflicts with freedom of expression." "Stop Subsidizing the Arts," The New York Times, May 18, 1990, p. A15. Return to text

10. Congressmen Dana Rohrabacher (R-CA) and Philip Crane (R-IL) are reported by John Frohnmayer, the NEA chairman ousted by President Bush, to believe ". . . that the government shouldn't support art in the first place . . . [,] that we simply cannot afford art in an era of fiscal austerity and that art isn't the government's business." John Frohnmayer, Leaving Town Alive: Confessions of an Arts Warrior (Boston: Houghton Mifflin Company, 1993), p. 45; see also, pp. 36, 94, 114, 228-9, 295. Return to text

11. Among the many accounts of this earlier threat to the NEA, see Kevin V. Mulcahy, "The Attack on Public Culture: Policy Revisionism in a Conservative Era," in Public Policy and the Arts, edited by Kevin V. Mulcahy and C. Richard Swaim (Boulder, CO: Westview Press, 1982), pp. 303-322; Joseph Wesley Zeigler, Arts in Crisis: The National Endowment for the Arts versus America (Chicago: a cappella books, 1994), pp. 46-49. Return to text

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