Museums and Expression

The intersection among civil rights, museums, and expression usually focuses on the right of artists to make controversial works and museums to offer them to the public. The First Amendment protects all speech, with narrow exceptions. However, since aesthetic appreciation is often considered a luxury, the right to aesthetic expression is often given less First Amendment protection than the right to speak a political opinion. Outright censorship, though rare, has been practiced in America. While the prohibition against ‘‘obscenity’’ is very narrowly construed and almost never used, there are famous examples of artistic works being banned under the obscenity rules in America. Henry Miller’s books were banned in America for their strong sexual content, and William S. Boroughs’s book Naked Lunch was also prosecuted for obscenity. The issue of controversial books in public libraries is another recurrent theme in American politics.

The arts can also serve as a surrogate battlefield for broader political struggles. For example, during the French Terror, when expressing sympathy for the ancien regime was dangerous, the conservative critic Boutard did so obliquely by praising rococo art (associated with the old aristocracy) and condemning the neoclassical (associated with the revolutionaries). Even when not intentionally encoded, artistic and critical practice necessarily reflects and confronts the political issues of its time. For example, during the National Endowment for the Arts (NEA) crisis of the late 1980s, the work of homosexual artists became the focal point of a broader crisis over the visibility of homosexuality in society. Earlier in the century, the critic Clement Greenberg’s history of modern painting bespoke a Marxist belief in historical dialectic, while Lionel Trilling’s belief that good literature could exist only in untroubled times was anti-Marxist. The critic Hilton Kramer’s insistence on objective standards in art reflects an exasperation with the egalitarianism of sixties counterculture.

Ironically, the low value placed on artistic expression can also insulate it from political threats. During the censorious political climate of the Terror, when artistic news was considered too frivolous for journalistic coverage and relegated to the margins of the journals, art critics were freer to speak their minds than other commentators. In America during the first half of the twentieth century, public anxiety about immigration and Communism led to an expansion of the ‘‘imminent threat’’ doctrine, which allowed prohibition of political speech that advocated the violent overthrow of the government. However, during the same period, artistic expression was relatively free.

The biggest threat to a robust public debate about matters of aesthetic experience is often not the government, but the vicissitudes of the marketplace. For example, radio stations around the country are controlled by a handful of operators with tested profit models, and therefore it is difficult for more sophisticated programmers to enter or survive in the market. Similarly, museums increasingly face the same problem, where more and more institutions subscribe to traveling ‘‘blockbuster’’ exhibitions that are curatorially unsophisticated. Therefore, when artists compete for a finite opportunity to be heard, the less complex and challenging will often prevail. While this is not necessarily a civil liberties issue, it is intrinsically tied up with the civil liberty of free enterprise. If one considers artistic quality to be a valuable public resource, then its lack of support would seem to constitute a market failure.

There has long been a power struggle between the art establishment and emerging artists and forms. This struggle goes all the way back to the first secular art institutions that arose in the sixteenth century, such as Cosimo de Medici’s Accademia delle Arte del Disegno in Florence (which opened in 1563) and Accademie Royale Le Peintre in Paris (which opened in 1648). The Accademie, with its public salons, had grown extremely powerful in French culture by the eighteenth century. Success at the salon was crucial for an artist’s career; however, the Accademie was stylistically conservative and unreceptive to new trends. Artists who felt they had been unjustly excluded from the salon created alternative exhibits. It was at these alternative exhibits that the most important new styles of the eighteenth and nineteenth centuries were incubated, including neoclassicism, impressionism, and postimpressionism.

Meanwhile, the most successful ‘‘academics’’ of the same period, such as William Bouguereau, have been mostly forgotten. This power struggle between the art ‘‘establishment’’ and emerging artists and art institutions continues to this day. Venerable institutions such as the Museum of Modern Art soak up most of the resources and smaller venues, which take more risks on emerging forms and young artists, fight to stay alive.

The issue of public subsidies for art is a recurrent crisis in American society. It is a complex civil liberties issue. While the public cannot constitutionally prohibit an artist from expressing himself in a certain way, it is under no constitutional obligation to subsidize his expression. The question is whether, by discriminating based on viewpoint in giving out subsidies, the government is really ‘‘abridging’’ speech it does not like, in violation of the First Amendment, or simply encouraging speech it likes. This issue comes up whenever a community tries to exclude controversial books from the public library or controversial curricula from public universities or schools. It also comes up in the perennial debate over the NEA.

Similarly, when the government licenses broadcasting rights, it is free to regulate content without running afoul of the First Amendment. Through the FCC, the government prohibits nudity, sexual content and language in television and radio and has enforced ‘‘equal time’’ rules for political broadcasting.

The rights of free expression and private property often come into conflict. Mall owners consider it a taking when the government forces them to allow protesters inside their property; protestors argue that because American life increasingly takes place within privately owned structures, it is impossible for them to speak anywhere else. Shopkeepers and subway operators consider it a defacement of private property when graffiti artists use their walls as a canvas; the artists argue they have a right to express themselves artistically.

First Amendment issues also arise with regard to the ownership of speech. Creative expression is a form of property that can be bought and sold, and the owner of speech can prevent others from using it by copyright or trademark. Power struggles often occur over who has the right to certain speech. Artists and writers claim that they are forced into unfair contracts with dealers and publishers, who make much more money from their creative works than the artists do. Some artists also advocate for ‘‘moral rights’’: the right not to have their work altered or defaced in a way that changes its political or stylistic meaning. While the doctrine of moral rights is widely accepted in Europe, it has never been accepted in America.

CHRISTOPHER D. KING

References and Further Reading

• Bazin, Germain. The Museum Age. New York: Universe Books, 1967.
• Bolton, Richard. Culture Wars: Documents From the Recent Controversies in the Arts. New York: New University Press, 1992.
• Brenson, Michael. Visionaries and Outcasts: The NEA, Congress, and the Place of the Visual Artist in America. New York: New Press, 2001.
• Lorente, Jesus Pedro. Cathedrals of Urban Modernity. Brookfield, VT: Ashgate, 1998.
• Sherman, Daniel J., and Irit Rogot, eds. Museum Culture: History, Discourses, and Spectacle. Minneapolis: University of Minnesota Press, 1984.

See also Broadcast Regulation; Freedom of Speech and Press under the Constitution: Early History (1791– 1917); Freedom of Speech: Modern Period (1917– Present); Government Funding of Speech; Intellectual Property and First Amendment; Low Value Speech; National Endowment for the Arts v. Finley, 118 S. Ct 2168 (1998); Obscenity; Public Vulgarity and Free Speech