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First Amendment freedomcvr 11/12/01 4:07 PM Page 1 FO R U M ON FREEDOM AND DIVERSITY CENTER FOR ARTS AND CULTURE OF EXPRESSION CULTURAL COMMENT SERIES James Early Director of Cultural Heritage Policy Center for Folklife and Cultural Heritage Mark Lloyd Executive Director, Civil Rights Forum on Communications Policy John Romano Writer/Producer Gigi Sohn Executive Director, Public Knowledge Ben Wattenberg Senior Fellow, American Enterprise Institute www.culturalpolicy.org moderated by James Fitzpatrick CENTER FOR ARTS AND CULTURE FORUM ON FREEDOM AND DIVERSITY OF EXPRESSION AND THE FIRST AMENDMENT November 2001 - 2 - - 3 - FORUM ON FREEDOM AND DIVERSITY OF EXPRESSION AND THE FIRST AMENDMENT In an increasingly connected world in which ideas have become as economically valuable as goods and as socially porous as the next click of a mouse or flick of a screen, issues of free and diverse expression will continue to be vital components of an evolving and vigorous climate conducive to continued creativity and the public goods that should result from that cre- ativity. At the same time, these issues are becoming m o re layered. In today’s world, our attention is increasingly focused on first amendment issues sur- rounding the dissemination of words and images. The Center for Arts and Culture convened a panel of experts on June 25, 2001 in Washington DC to discuss major issues regarding the First Amendment and free expression. James Fitzpatrick, a senior partner of the Washington law firm of Arnold & Porter, where he specializes in constitutional public policy issues, mod- erated the panel. The panelists: JAMES EARLY Director of Cultural Heritage Policy Center for Folklife and Cultural Heritage Smithsonian Institution MARK LLOYD Executive Director of the Civil Rights Forum on Communications Policy a project of the Tides Center - 4 - - 5 - INTRODUCTION: JOHN ROMANO CREATIVITY AND writer and producer of movies and television THE CONSTITUTION The creative arts in our country are enhanced by two GIGI SOHN constitutional principles. One is the First Amendment Executive Director that guarantees freedom of speech. Broadly, neither Public Knowledge the federal government nor any state or other govern- a new non-profit organization on mental entity can enact laws or regulations that intellectual property issues affecting digital content restrict freedom of speech. This principle has under- girded the nation’s basic commitment to free and open discussion and extends, not only to political BEN WATTENBERG speech, but also to literature, film, television, cable, Senior Fellow the Internet and other forms of distribution of ideas American Enterprise Institute and creative content. The second foundational princi- ple is the Copyright Clause which authorizes Congress to protect, for a limited period of time, the fruits of one’s creative labors. This has guaranteed authors and inventors a measure of economic security over the market created by their creative endeavors. This colloquy, convened by the Center for Arts and Culture, considered at some length a variety of issues relating to creativity and the First A m e n d m e n t . Copyright issues were only touched upon toward the conclusion of the discussion and deserve separate, thoughtful consideration. The discussion of First Amendment legal and policy issues was what one would have hoped for – a robust and spirited exchange, and healthy disagreement on some of the most difficult and significant issues of cre- ative freedom facing our nation. The transcript pro- vides a thoughtful and informed discussion – one that demonstrates once again that any First Amendment proposition can prompt differing points of view. - 6 - - 7 - A large part of the discussion focused on the "culture c reative activities (e.g., individual performance wars," a time of great ferment and debate on the artists) are no longer eligible for grants. I fear that the appropriate role of the federal government in spon- tension focused on the NEA has led to much more soring the creative arts. The latest iteration of the cul- conservative and restricted funding applications. ture wars was initiated by intense public debate over Today, it’s fine to fund a big city symphony or opera, the propriety of the National Endowment for the Arts but what’s happened to cutting edge work? Indeed, supporting, in the late 1980s, two controversial photo- for many years, it was widely thought that the role of graphic exhibitions, one by Robert Mapplethorpe, the NEA included support for those artistic projects which included a series of photographs depicting the that displayed excellence, but did not in fact enjoy largely hidden view of male homosexual behavior, market success. But a return to those yeasty days and a second exhibition of the photographs of Andres when the government could fund projects that might Serrano, whose work "Piss Christ" pictured a crucifix appear provocative seem gone. in a vial of the photographer’s urine. Both shows pro- voked a huge public debate and led to serious retalia- That issue led into a broader discussion whether it is tory action in Congress, cutting the NEA’s appropria- appropriate for the federal government to fund only tions by over a third and significantly tightening the those projects that have widespread public support. rules for federal grant applications. Under First Amendment principles, should a govern- mental entity fund artistic projects which offend a Recently, the Congress has seemed to reverse course portion of our populace? Ben Wattenberg argues and after ten years of intense debate on the proper role strongly that it is not appropriate – that the issue is not of the federal government in funding the arts, the censorship, but simply a question of sponsorship. House of Representatives increased the NEA’s appro- Why should one’s tax dollars be used for artistic activ- priation. For the first time in many years, there was ity that some portion of the populace finds offensive? no serious effort in the House to eliminate the But that approach reflects, in my view, a fundamental Endowment. This led to the question of whether cul- shift of First Amendment values away from the pri- ture wars are now over. macy of protecting the rights of the speaker and cre- ates veto power in the listener. Historically, the First All the participants felt that a single victory in the Amendment has taught that governmental power be Congress does not signal the surrender of conserva- used to protect the voice of the speaker – even though tive efforts to rein in the federal government’s the audience might find that message offensive. This involvement in the arts. One of the panel participants phenomenon of giving greater attention to the listen- took a long view of America’s Puritan past and said: er rather than the speaker reflects a disturbing trend, "When has this Nation not had a culture war?" by my lights, toward a "sensitive society" where debate, discussion and artistic presentation are less But the reality is, in my view, that the intensity of the robust simply because some portion of the populace is debate over the federal government’s funding of the offended. John Romano describes the ideal condition arts has diminished significantly. However, the heat to maximize First Amendment values as a country has gone out at a very severe price. Many kinds of - 8 - - 9 - with "noisy, healthy chaos." centuries been at the center of the Western creative world, but have no formal constitutional protection That’s where I come out. First Amendment law is for free speech; that’s the situation in the United clear that the government, even when it is using its Kingdom where Parliament can largely make its own spending power, cannot deny government funds to rules dealing with creative content, without the projects in an attempt to punish or stifle unpleasant restrictions of any court telling them no. It appeared ideas. And that’s the rule even when there is a public to most that the First Amendment protections are ben- outcry against government spending. The govern- eficial, but not essential, to a flourishing artistic com- ment can make judgments in terms of excellence, but munity. That view drew a sharp dissent from Ben it cannot fund only orthodoxy that it is comfortable Wattenberg, who asserted that the protection of cre- with. ativity afforded by the First Amendment is in fact an essential element of a healthy, creative process. That point was most dramatically made in the recent events at the Brooklyn Museum of Art, where the The discussion also touched on two issues where free Mayor of New York City threatened to deny funding speech can segue into conduct. One deals with hate to the Brooklyn Museum, replace its Board of speech; the distinction was properly drawn between Trustees, and even shut that public museum down, speech that might reflect a hateful attitude and crimi- because there was an image – Nick Ofali’s "The Holy nal conduct based on blind and intense prejudice on Virgin Mary" – which mightily offended the Mayor racial, religious or sexual grounds. Another portion of and the Catholic hierarchy. The courts made absolute- the discussion looked at the issue of television pro- ly clear that punitive action by the City denying funds gramming encouraging violent behavior – a matter to the museum because the Mayor found one of the that is under close scrutiny by the Congress and the pictures offensive was a gross violation of the First Executive Branch at this point. The consensus seemed Amendment. to be that the scientific data does not provide clear evi- dence of a causal relationship between TV program- The discussion turned to an overarching question – to ming and violent behavior. what degree are the protections of the First Amendment an essential condition of creativity? A This summary can only suggest the richness and number of the panelists acknowledged that the First provocative nature of the discussion that follows.
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