Public Funding / Public Art

Public funding for the arts does not allow the government to play the role of censor. While the government has considerable leeway in determining what and whom to fund, it may not do so in a vague or viewpoint-based manner. Although the government is not required to subsidize arts programs, once it does so it cannot rescind funding because of disagreement with the viewpoint expressed in a particular work. For example, the government may evaluate grant applicants on the basis of artistic excellence or general standards of decency, but it may not solely fund works promoting Christianity or Republicanism or deny funding because of antipathy to the views expressed by a particular work or artist. The government also cannot punish a particular museum or organization by rescinding funding if it opposes the ideas expressed by the institution, through its programming or otherwise. Notwithstanding these relatively simple principles, publicly-funded arts institutions routinely come under attack for work that is controversial in any ground – sex, religion, political viewpoint, etc.

Related Cases

Advocates for the Arts v. Thomson--The governor of New Hampshire cut funding for a lit mag because of an offending  poem. 

Bella Lewitzky Dance Foundation v. Frohnmayer--A group of nonprofits challenged the National Endowment for the Arts' grant procedure which prohibited the use of NEA funds for obscene materials. 

Brooklyn Institute of Arts and Sciences v. City of New York--Rudy Giuliani took offense at a work at the Brooklyn Museum of the Holy Virgin Mary which incorporated elephant dung. The City took action by trying to withhold funds and remove the museum from City land. 

Bullfrog Films v. Wick--A group of filmmakers challenged a treaty which provided tax and other benefits to audio-visual works without a political, religious, or economic message.

Claudio v. United States--The artist challenged the removal of his work "Sex, Laws, and Coathangers" from the lobby of a Raleigh federal building. 

Esperanza Peace and Justice Center v. City of San Antonio--Esperanza sued San Antonio after the city discontinued its funding. 

Henderson v. City of Murfreesboro--Henderson displayed a painting of a partial nude in the Murfreesboro City Hall, which the city attorney deemed to violate the sexual harassment policy. 

Hopper and Rupp v. City of Pasco--Pasco's city hall invited artists to display works in their building. Hopper challenged the city's decision to not display his artwork. 

Kelley v. Chicago Park District-- Kelley objected to the Chicago Parks' reconfiguration of his sculpture made of flowers titled "Wildflower Works".  

NEA v. Finley--NEA-funded photographs by Mapplethorpe and Serrano were met by controversy, and Congress amended the NEA's mandate to include considerations of "decency." A group of artists challenged the amendment. 

Nelson v. Streeter--Nelson painted an "offensive" image of a recently deceased Chicago mayor, which was seized by city aldermen. 

Serra v. U.S. General Services Administration--Serra was commissioned to create a site-specific sculpture for the plaza next to a federal office complex. The government decided to move the work, and Serra asserted his VARA rights. 

Wojnarowicz v. American Family Association--Wojnarowicz sought to stop an American Family Association pamphlet which condemned the NEA's funding of Wojnarowicz's works. The pamphlet included images from the film. 

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superseded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome here.