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NATIONAL ENDOWMENT FOR THE ARTS V. FINLEY

Amicus Brief: Claes Oldenburg, et al.

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NATIONAL ENDOWMENT FOR THE ARTS, ET AL., Petitioners, v. KAREN FINLEY, ET AL., Respondents
No. 97­371
October Term, 1997
February 6, 1998

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR CLAES OLDENBURG, ARTHUR MILLER, JASPER JOHNS, HANS HAACKE, COOSJE VAN BRUGGEN, E.L. DOCTOROW, NANCY SPERO, LEON GOLUB, ANDRES SERRANO, ROBERT COLESCOTT, TONY KUSHNER, LUIS CRUZ AZACETA, TERRENCE McNALLY, BARBARA KRUGER, DAVID HAMMONS, ADRIAN PIPER, SUSAN ROTHENBERG, BRUCE NAUMAN, ERICA JONG, AND RICHARD SERRA, AMICI CURIAE, SUPPORTING RESPONDENTS

Gloria C. Phares Counsel of Record, James Kronenberg, PATTERSON, BELKNAP, WEBB & TYLER LLP, 1133 Avenue of the Americas, New York, New York 10036, (212) 336­2000

Counsel for Amici Curiae

TABLE OF AUTHORITIES

Cases
American Communications Assn. v. Douds, 339 U.S. 382 (1950)
Buckley v. Valeo, 424 U.S. 1 (1976)
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)
Coates v. City of Cincinnati, 402 U.S. 611 (1971)
Cohen v. California, 403 U.S. 15 (1971)
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
Grayned v. City of Rockford, 408 U.S. 104 (1972)
Hannegan v. Esquire, Inc., 327 U.S. 146 (1946)
Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)
Keyishian v. Board of Regents, 385 U.S. 589 (1967)
Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959)
Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997)
Smith v. Goguen, 415 U.S. 566 (1974)

Constitution, Statutes and Rules

United States Constitution

amend. I
amend. V

20 U.S.C. @ 954(d)

20 U.S.C. @ 954(d)(1)

20 U.S.C. @ 955(b)

20 U.S.C. @ 959(c)(2)

Arts, Humanities and Museum Amendments of 1990, Title I, Pub. L. No. 101­512, @ 318, 104 Stat. 1960 (1990), reprinted in 1990 U.S.C.C.A.N. (104 Stat.) 1960

Communications Decency Act of 1996, 47 U.S.C. @ 223(a) (Supp. 1997)

National Foundation on the Arts and Humanities Act of 1965, 20 U.S.C. @@ 951 et seq.

Supreme Court Rule 37.3(a)

Legislative Materials

95 Cong. Rec. H 11584 (Aug. 16, 1949)
135 Cong. Rec. S 5595 (daily ed. May 18, 1989)
135 Cong. Rec. S 12968 (Oct. 7, 1989)

Department of the Interior and Related Agencies Appropriations for 1993, Hearings Before the Subcomm. on the Department of the Interior and Related Agencies of the House Comm. on Appropriations, 102 Cong., 2d Sess. (May 5, 1992)

Department of the Interior and Related Agencies Appropriations for 1992, Hearings before the Subcomm. on the Department of the Interior and Related Agencies of the House Comm. on Appropriations, 102d Cong., 1st Sess. (Feb. 21, 1991)

S. Rep. No. 89­300 (1965)

Other Materials

The American Heritage Dictionary of the English Language (3d ed. 1996)

Archer, Michael, Art Since 1960 (1997)

Arnason, H.H., History of Modern Art (3d. ed. 1986)

Askew, Pamela, Caravaggio's Death of the Virgin (1990)

Baron, Stephanie, ed., "Degenerate Art": The Fate of the Avant­Garde in Nazi Germany (1991)

Belting, Hans, The End of the History of Art (Christopher S. Wood trans. 1987)

Carmilly­Weinberger, Moshe, Fear of Art: Censorship and Freedom of Expression in Art (1986)

Clapp, Jane, Art Censorship: A Chronology of Proscribed and Prescribed Art (1972)

Clark, T.J., The Painting of Modern Life: Paris in the Art of Manet and His Followers (1984)

Danto, Arthur C., After the End of Art: Contemporary Art and the Pale of History (1997)

Fernie, Eric, "A History of Methods," Art History and 1ts Methods: A Critical Anthology (1995)

Four Frames on America, N.Y. Times, July 6, 1991

Gardner, Helen, Gardner's Art Through the Ages (1991)

Greenberg, Clement, "The Identity of Art," 4 The Collected Essays and Criticism (John O'Brian, ed. 1993)

Hegel, G.W.F., Introductory Lectures on Aesthetics (Michael Inwood ed. & Bernard

Bosanquet trans., Penguin Books 1993)

Janson, H.W. and Anthony F. Janson, History of Art (5th ed. rev. 1997)

Janson, H.W., History of Art (1st ed. 1962)

Mairowitz, David Zane, Fascism a la Mode: in France, the Far Right Presses for National Purity, Harper's Magazine, Oct. 1997

N.Y. Times, July 20, 1991

Pliny the Elder, Natural History, reprinted in H.W. Janson and Anthony F. Janson, History of Art (5th ed. rev. 1997)

Poussin, Nicholas, an undated manuscript, reprinted in H.W. Janson and Anthony F. Janson, History of Art (5th ed. rev. 1997)

Reynolds, Sir Joshua, Discourses on Art (Robert R. Wark ed. 1975)

Richard, Paul, Robert Colescott's Perspectives on Black and White, The Washington Post, Jan. 20, 1988

Roberts, Roxanne, Hammering the Body Politic; Blacks Wreck a Portrait of a Blond, White Jesse Jackson, Time, Dec. 18, 1989

Roberts, Roxanne, Jackson: Not Insulted by Painting; Says Destruction of Portrait Reflects Hidden Anger, The Washington Post, Dec. 4, 1989

Rosenblum, Robert and H.W. Janson, 19th Century Art (1984)

Russell, John, Turbulent Restatements from Robert Colescott, N.Y. Times, Mar. 3, 1989

Traynor, Ian, Austrian Far Right Turns the Arts into Theatre of War, The Guardian, Dec. 14, 1995

1 Vasari, Giorgio, Lives of the Artists (George Bull trans., Penguin Books 1965)

Waxman, Sharon, Artists Put on Brakes at France's Right Turn; Some Urge Boycott in National Front Towns, The Washington Post, June 22, 1995

Whitford, Frank, Egon Schiele (1981)

Wypijewski, Joann, ed., Painting By Numbers: Komar and Melamid's Scientific Guide to Art (1997)

INTEREST OF THE AMICI CURIAE

The amici curiae are 20 distinguished visual and literary artists, who share an interest that the creation of art be judged on standards of excellence and merit that are free of restrictions based on the viewpoint of the artist. Because the amici have extensive experience in the arts, they believe that they can offer the Court views about the creation and evaluation of the arts that are relevant to the Court's consideration of the issues in this case.

The visual artists among the amici have created works­­sculpture, paintings, constructions, prints, photographs­­that exemplify many of the major artistic movements since the 1940s. Works of these artists are included in the permanent collections of major museums in the United States and abroad, including the Smithsonian Institution, the National Gallery of Art, the Metropolitan Museum of Art, the Museum of Modern Art, the Art Institute of Chicago, the Pompidou Center in Paris, the Tate Gallery in London, the National Gallery of Canada, and the National Gallery of Australia.

The literary artists among the amici have created novels and plays that are read and produced worldwide, and the excellence of their work has been recognized with awards, such as the Pulitzer Prize, the Antoinette Perry Award (the "Tony"), the Emmy Award and the National Book Award.

Some of the amici have served on NEA panels of experts, and one was the recipient of an NEA grant earlier in her career.

The amici use their work as a vehicle for the expression of ideas, viewpoints, or beliefs, and they are troubled by any governmental effort to control protected expression in artistic work­­whether directly or indirectly­­through the selective withholding of subsidies. A work of one of the amici, Andres Serrano, which appeared in an NEA­funded exhibition, was attacked during the 1989 and 1990 congressional debates regarding the NEA, and the institution that exhibited the work was subsequently penalized, because some congressional representatives and their constituents perceived the work as blasphemous.

The work of visual and literary artists is often intended to challenge the viewer or reader and to provoke thought. The imposition of vague, viewpoint­based restrictions, such as the "decency" and "respect" provisions at issue in this case, as criteria for funding the arts infringes protected First Amendment expression. These provisions authorize public officials to apply such standards based on their personal interpretations, and they cause artists and arts organizations that rely on public funding to engage in self­censorship rather than risk the loss of funding. Not only do such vague standards squelch creativity and artistic innovation, they foster the proliferation of art striving to satisfy the lowest common denominator. Because the amici are concerned that artistic expression not be subjected to government censorship in the form of vague restrictions that invite judgment based on viewpoint, they join in urging this Court to affirm the court of appeals' decision.

SUMMARY OF ARGUMENT

1. The "decency" and "respect" provisions of the NEA statute conflict with the Fifth Amendment because they are unconstitutionally vague. Neither "general standards of decency" nor "respect for the diverse beliefs and values of the American public" are terms that can be understood­­without guesswork­­either by NEA applicants or NEA personnel charged with making the funding decisions. Depending upon the perspective of the decision­maker, such terms could encompass much of the art that we flock to museums to see, because it might offend some Americans' views of what is politically correct, morally acceptable, sexually restrained, or religiously orthodox.

The vagueness of the terms makes the statute vulnerable to the very ills that the vagueness doctrine is meant to prevent: the exercise of unbridled discretion by the decision­maker and self­censorship by applicants anxious to avoid the statutory prohibitions.

2. The statutory standards of "artistic excellence" and "artistic merit" are not unconstitutionally vague. To evaluate art in a meaningful sense, the evaluator must have knowledge about the art work in question, experience in looking at similar works, and understanding of the history of art and recent developments in the art world. By requiring that the NEA advisory panels and the NEA Council be comprised of individuals knowledgeable in the arts, Congress recognized that such experts would have the requisite experience to make fair and informed decisions when determining which works have artistic excellence and merit. The expertise that qualifies the NEA panelists and Council members to make judgments about artistic merit, however, does not include reference to "standards of decency" and the "respect for the diverse beliefs and values of the American public." Furthermore, no definition of "artistic excellence" and "artistic merit" can include the conformity and orthodoxy necessarily imposed by the "decency" and "respect" provisions, because such standards are fundamentally antithetical to the making of art.

TEXT: ARGUMENT

I THE "DECENCY" AND "RESPECT" PROVISIONS OF THE NEA STATUTE ARE UNCONSTITUTIONALLY VAGUE UNDER THE FIFTH AMENDMENT

On November 5, 1990, Congress passed the Arts, Humanities and Museum Amendments of 1990 (the "Act"), as the finale to a year of contentious debate brought about by congressional efforts to dictate the content and viewpoint of art funded by the National Endowment for the Arts ("NEA"). (1) The Act amended the enabling legislation in certain respects; in particular, it amended 20 U.S.C. @ 954(d) so that it now reads in pertinent part:

No payment shall be made under this section except . . . in accordance with regulations issued and procedures established by the [NEA] Chairperson. In establishing such regulations and procedures, the Chairperson shall ensure that­­
(1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public; and
(2) applications are consistent with the purposes of this section. Such regulations and procedures shall clearly indicate that obscenity . . . shall not be funded. . . .

(the "'decency' and 'respect' provisions" or "Section 954 (d)(1)").

Thus, under the amended statute, awards of NEA grants are ultimately contingent upon the NEA Chairperson's determination that the applications are consistent with "general standards of decency" and with "respect for the diverse beliefs and values of the American public." As implemented by the NEA Chairperson, each member of the peer review panels that review applications for NEA grants, each member of the National Council that advises the Chairperson, and all the state, local, and private arts organizations authorized to make subgrants of NEA funds are all charged with ensuring that their decisions consider "general standards of decency" and "respect for the diverse beliefs and values of the American public." (2)

Upon challenge by respondents, both the district court, Pet. App. 76a­78a, and the court of appeals, Pet. App. 14a­19a, invalidated the "decency" and "respect" provisions as unconstitutionally vague in violation of the Fifth Amendment's due process clause. As the court of appeals recognized, the "decency" and "respect" provisions are unconstitutional because "'no standard of conduct is specified at all'" and "the statute thus provides no 'ascertainable standard for inclusion and exclusion.'" Pet. App. 17a (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) and Smith v. Goguen, 415 U.S. 566, 578 (1974)).

In the face of these holdings, the NEA persists in its contention that "Congress's use of imprecise terms in awarding grants does not penalize speech in any meaningful sense." Pet. Br. 47. This contention completely ignores the well­established principle that when a vague statute touches protected First Amendment expression, the vagueness doctrine "demands a greater degree of specificity than in other contexts." Smith, 415 U.S. at 573; Buckley v. Valeo, 424 U.S. 1, 41 (1976). And while a greater degree of vagueness is tolerated with respect to civil enactments because the consequences are less severe, that exception does not apply where a statute's vagueness "threatens to inhibit the exercise of constitutionally protected rights . . . [such as] free speech." Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); Keyishian v. Board of Regents, 385 U.S. 589, 603­04 (1967). Section 954(d)(1)'s requirement that the evaluation of grant applications take into consideration "general standards of decency and respect for the diverse beliefs and values of the American public" does not satisfy, in any respect, the "greater specificity" standard required by Smith and Hoffman.

A. "General Standards Of Decency"

On its face, "decency" is defined in terms of vague and undefined standards of propriety or morality. According to The American Heritage Dictionary of the English Language 483 (3d ed. 1996), "decency" is

the state or quality of being decent; propriety. . . . Conforming to prevailing standards or propriety or modesty,

and "decent" is

characterized by conformity to recognized standards of propriety or morality. . . . Free from indelicacy; modest. . . . Meeting acceptable standards; adequate. . . Morally upright; respectable. . . .

Such definitions do not provide the greater specificity required by Smith and Hoffman to save the phrase "general standards of decency" from unconstitutional vagueness. They provide artists and art institutions no guidance whatsoever about what qualities or elements, if found in an artistic work, would trigger rejection under Section 954(d)(1), and they do not prescribe explicit standards for NEA judging officials to use in making funding determinations. As the court of appeals noted, "[the NEA decision­makers] have no . . . expertise in applying such free­floating concepts as 'decency' and 'respect.'" Pet. App. 19a n.18. Just as "one man's vulgarity [may be] another's lyric" (Cohen v. California, 403 U.S. 15, 25 (1971)), so too may works of art be "decent" or not depending on a viewer's own particular background and personal philosophy. See FCC v. Pacifica Foundation, 438 U.S. 726, 742 (1978) ("for indecency is largely a function of context­­it cannot be adequately judged in the abstract").

For example, what is "decent" is likely to run afoul of some viewer's standards of propriety regarding sexuality and nudity. Examples of art works that have provoked objections to allegedly explicit sexuality or excessive nudity range from Michelangelo's Last Judgment (1534­41) (App. 2a), to Rodin's "The Kiss" (1886­98) (App. 3a), to Edouard Manet's 1863 "Dejeuner sur l'herbe" (Luncheon on the Grass) (App. 4a), to much of the work of Egon Schiele, (3) whose oeuvre was recently featured in a retrospective exhibition at the Museum of Modern Art in New York City. In fact, Schiele's work was so offensive to his Austrian contemporaries, that in 1913 he was convicted of creating pornography at a trial during which the judge burned one of his pictures in the courtroom. (4) Although Michelangelo's "David" (1501­1504) (App. 5a) and Henri Matisse's "Hindu Pose" (1923) (App. 6a) managed to escape serious censure in their own times, each has been the subject of outrage in modern times: a replica of the David was seized in 1966 in Beverly Hills for "appearing without a figleaf" and the U.S. Post Office revoked the mailing permit of an issue of a fine arts publication because it contained reproductions of nudes, including "Hindu Pose." (5)

Even assuming that an artist applying for a grant could hazard a guess about what is meant by "decency" in the statute, the applicant could never know with any degree of certainty what is the "general standard" referred to in the statute or what "general standard" NEA decision­makers were using. Is the same general standard applied in Kansas City and New York City? If there are differing standards, who decides which standard to apply?

In Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997), this Court considered the Communications Decency Act of 1996 (the "CDA") which attempted to restrict access to speech on the Internet that was "indecent." 47 U.S.C. @ 223(a) (Supp. 1997). Like the NEA "decency" and "respect" provisions, the CDA did not further define or qualify "indecent." This Court invalidated the decency provision of the CDA statute, concluding that the vagueness of such terminology raised special constitutional concerns because of its "obvious chilling effect on free speech." Reno, 117 S.Ct. at 2344. The NEA "decency" provision suffers from the same defect. Without further definition, "general standards of decency" provides no standard at all; worse, such a vague formulation both encourages the rejection of art because of the viewpoint the art may express and dampens the free expression of ideas by artists and arts organizations that seek NEA funding.

B. "Respect For The Diverse Beliefs And Values Of The American Public"

The meaning of the phrase "diverse beliefs and values of the American public" is as opaque as is "general standards of decency." Which particular set of beliefs and values is to serve as the standard for selection? Although the statute recognizes that the beliefs and values of the American public are "diverse," it fails to indicate which values should prevail if respecting one set of values means offending another. Who is to make this subjective judgment? Since Section 954(d)(1) designates the NEA's Chairperson as the final arbiter of what art conforms to the "decency" and "respect" provisions, does this mean that the Chairperson is empowered to reject any grant application that he or she believes criticizes or questions the political, religious, or moral values of some part of the American public?

"Respect for the diverse beliefs and values of the American public" is necessarily defined with reference to religion, politics, racial or ethnic attitudes, and attitudes about human sexuality, among other beliefs and values. Within each of these spheres, there is ample potential for discordant views and attitudes, depending upon the point of view of the person doing the evaluating.

Assuming that religion is included among the American beliefs and values that an arts grant must respect, it is quite possible that depicting religious figures or symbols in unconventional contexts or in unflattering postures may be considered indecent or disrespectful. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 504­05 (1952) ("In seeking to apply the broad and all­inclusive definition of 'sacrilegious' . . . the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies").

For example, Paolo Veronese's 1573 painting "Christ in the House of Levi" (App. 7a) now hanging in the Galleria dell'Accademia in Venice, was criticized by the religious tribunal of the Inquisition because it included figures­­a dwarf, jesters, servants, and a dog­­considered inappropriate alongside the Holy Figures. (6) Michelangelo's "Last Judgment" (App. 2a) (1534­41) was censored in part because of the nudity of the figures, a defect that Pope Paul IV finally cured in 1558 by having draperies and loincloths painted over the offending body parts; (7) and Caravaggio's "Death of the Virgin" (1605­06) (App. 8a), first commissioned as an altarpiece, was then rejected as blasphemous because the Virgin figure in the picture was modeled after a prostitute and was bare­footed. (8)

Although it is easy to dismiss such attitudes as the unenlightened views of the 16th and 17th centuries, recent history shows that artists are not immune from those who consider blasphemous the use of religious symbols in artistic expression. For example, in 1928 George Grosz, a well­known German artist, and his publisher were prosecuted for depicting "Christ in a Gas Mask" (App. 9a). (9) In 1991, a "photo­allegory" by the artist Duane Michals drew criticism for depicting a crucifix, pointed gun­like at the head of a victim, to show the artist's belief that "no American has the right to impose his private morality on any other American" (App. 10a). (10) And Senator Jesse Helms used Andres Serrano's 1987 photograph "Piss Christ" (App. 11a) as a focal point in his attack on the NEA's 1989 appropriations. (11) If offending religious sensibilities is a criterion for denying NEA funds, such a rule might exclude Max Ernst's 1926 "The Holy Virgin Chastising the Infant Jesus Before Three Witnesses: Andre Breton, Paul Eluard and the Artist" (App. 12a) and Francis Bacon's 1953 "Study After Velasquez's Portrait of Pope Innocent X" (App. 13a), among countless other visual art works and works of literature, opera and theater.

Whether a particular work of art will offend Americans' beliefs or values often depends on the perspective of the viewer. This is well illustrated by David Hammons's "How Ya Like Me Now" (1988) (App. 14a), which depicts a white, blue­eyed Jesse Jackson. The work outraged many young African­Americans, who saw it as insulting to Mr. Jackson, unaware that the African­American artist was using color to comment on how race influences political (and other) judgments. (12) Similarly, viewers offended by Robert Colescott's highly stereotypical images of African­Americans in "George Washington Carver Crossing the Delaware: Page From American History" (1975) (App. 15a) might react differently once they realize that Colescott, an African­American, seeks to attack such stereotypes with his figures. (13)

Differing political viewpoints can also influence the perception of whether a particular artistic work collides with "the beliefs and values of the American public." In the age of McCarthyism in the United States, artists, especially those of foreign origin, were often identified with communism. In 1949, Congressman George A. Dondero delivered the following lines in a speech before the House of Representatives:

. . . art is considered a weapon of communism, and the Communist doctrinaire names the artist as a soldier of the revolution. It is a weapon in the hands of a soldier in the revolution against our form of government, and against any government or system other than communism. . . .
What are these isms that are the very foundation of socalled modern art? . . .
I call the roll of infamy without claim that my list is all­inclusive: dadaism, futurism, constructionism, suprematism, cubism, expressionism, surrealism, and abstractionism. All of these isms are of foreign origin, and truly should have no place in American art. . . . Picasso, who is also a dadaist, an abstractionist, or a surrealist, as unstable fancy dictates, is the hero of all the crackpots in so­called modern art. (14)

Most of the artists that Senator Dondero believed were conspiring to overthrow democracy in America (such as Marcel Duchamp and Fernand Leger), today are accepted, almost universally, as important contributors in the development of American art.

A more extreme example of artistic expression colliding with the reigning political regime was the Third Reich's program to brand as "degenerate" much of the modern art that flourished in Germany after World War I in order to clarify for the German public "exactly what type of modern art was unacceptable to the Reich, and thus 'un­German.'" (15) Confiscating art from museums all over Germany, the Nazis installed over 600 works in an exhibition of so­called "Degenerate Art." To discredit the works further for the popular audience, many of the works were affixed with a red sticker stating "Paid for by the taxes of the German working people." (16) The condemnation of contemporary art and the threat of eliminating public funding for the arts is still part of the agenda of some right­wing European politicians including Jean­Marie Le Pen in France and Jorg Haiden in Austria. (17)

These examples demonstrate that the public's opinions as to whether any particular art work is "decent" will be as diverse as their beliefs and values in general. As should be apparent, there is no way to determine the content of "general standards of decency" and the "respect for the diverse beliefs and values of the American public." Because Section 954(d)(1) implicates protected speech under the First Amendment, those standards need to be defined with specificity. They are not. The statute, therefore, is unconstitutionally vague.

C. The "Decency" And "Respect" Provisions Cause The Harm That The Vagueness Doctrine Attempts To Avoid

The harm of the unconstitutionally vague "decency" and "respect" provisions is that authority to administer this vague statute is placed, with no form of review, in the panelists, Council, and ultimately, in one person, NEA's Chairperson, with knowledge that members of Congress and others with particular political viewpoints will be looking over their shoulders. This sort of unguided discretion fosters precisely the kind of invidious discrimination among viewpoints that is intended to be avoided by the Due Process Clause's requirement that a statute be reasonably clear. As Justice Clark pointed out, concurring in Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 701 (1959), with this sort of statutory guideline the only limits on the censor's discretion is his understanding of what is included in the term "desirable, acceptable or proper." This is nothing less than a roving commission in which individual impressions become the yardstick of action, and result in regulation in accordance with the beliefs of the individual censor rather than regulation by law. Accord, City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423­24 n.19 (1993).

Moreover, the Chairperson is not required to give reason for disapproving a grant, so that there is no record that can be reviewed if the Chairperson abuses his or her authority and rejects an application because of its political or ideological viewpoint. Thus, the sole, unsupervised and unreviewable authority to decide whether a grant application comports with "general standards of decency" and is respectful of the American "beliefs and values" amounts to bestowing on the Chairperson a power of censorship, a power that this Court has said "should not be easily inferred." Hannegan v. Esquire, Inc., 327 U.S. 146, 151 (1946). (18)

Unjustified rejection of artistic expression because of its viewpoint is just one side of the harm flowing from this unconstitutionally vague statute. The other is the self­censoring effect that such a limitless standard will have on the artists and arts organizations who seek NEA grants to support their work and exhibitions. Artists producing works worthy of funding will be discouraged from applying for an NEA grant, fearing that any subject too unconventional will not overcome the hurdle of Section 954(d)(1)'s "decency" and "respect" provisions. A second level of self­censorship comes from arts institutions that decline to display works out of fear of being rejected for future funding under some interpretation of the "decency" and "respect" provisions. Section 954(d)(1) thus has the doubly undesirable effect of forcing artists and arts organizations to "steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked" (Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (internal quotes omitted)), and stifling the creation of the best and most innovative work that artists are capable of creating­­just what the NEA was originally established to promote.

II ARTISTIC "EXCELLENCE" AND "MERIT" ARE NOT UNCONSTITUTIONALLY VAGUE

In support of its contention that Section 954(d)(1) is not vague, the NEA has adopted an argument advanced by Judge Kleinfeld in his dissent from the court of appeals panel decision (Pet. App. 38a­40a) and repeated by Judge O'Scannlain in his dissent from the denial of the petition for rehearing en banc (Pet. App. 95a). The NEA claims that if "general standards of decency" and "respect for the diverse beliefs and values of the American public" are impermissibly vague, then so too are "artistic excellence" and "artistic merit." Pet. Br. 48.

The court of appeals rejected Judge Kleinfeld's argument as irrelevant because the meaning of those terms had not been challenged by respondents. Pet. App. 18a n.18. However, the court of appeals noted that there were obvious differences between the "decency" and "respect" provisions and "artistic excellence" and "artistic merit," including the fact that the NEA decision­makers are knowledgeable about the arts, but have no particular expertise in determining what is "decent" or whether the American public shares any particular beliefs or values on a given subject. Id.

The NEA's argument that "artistic excellence" and "artistic merit" are unconstitutionally vague suggests that it is impossible to answer the questions "what is art?" and "how do we tell the difference between good art and bad art?" The amici curiae believe that, although there may be no absolutes when it comes to art, there are, in fact, standards and tools which can be used to answer these questions. (19)

In his dissenting opinion, Judge Kleinfeld tries to suggest that the process of judging art is wholly elusive. Pet. App. 39a. He relies for this startling proposition on a passage in the 1962 first edition of "History of Art," the well known textbook by H.W. Janson. (20) A closer examination, however, reveals that Janson does not support Judge Kleinfeld's assertion. Although Janson admits that absolute definitions cannot be reached, the Introduction to his first edition discusses at least two factors which are necessary to distinguish art from mere craft: originality and creativity. (21) By the 1997 fifth edition of the Janson text, the Introduction has been expanded to include discussions of creativity, imagination, originality, technique, meaning and style, self­expression, and taste. (22) That Introduction continues by listing certain visual elements that should be analyzed when looking at art: line, color, light, composition, form and space. Contrary to Judge Kleinfeld's assertion that there are no standards for evaluating art, the latest edition of Janson takes a far less absolutist view: "If definitive conclusions are impossible, there is still a good deal that can be said." (23) Indeed, Janson's "History of Art" is a 1000­page tome of judgments about which objects are the visual artistic masterpieces of the Western World.

The factors listed in Janson's most recent Introduction demonstrate that there are, in fact, standards which may be used to determine artistic excellence and merit. Furthermore, and central to this case, whatever artistic excellence" and "merit" mean, their definition cannot and do not include "general standards of decency" and the "respect for the diverse beliefs and values of the American public."

A. There Are Established Standards Of "Artistic Excellence" And "Artistic Merit"

Since the advent of art history as a discipline, there have been established standards for determining artistic excellence. However, the answers to the questions "what is art?" and "how can we tell the difference between good art and bad art?" have depended on where and when they are asked.

In ancient Greece and Rome, writers mentioned objects that today are classified as art, such as paintings and sculptures, but they were not discussed as works of art. Instead, these mentions appeared in texts on other subjects and described only how the objects were made, their size, their cost, the artists who made them, how lifelike they were, whether they were the first of their kind, and the extent to which they embodied either natural or ideal beauty. (24) Cicero (106­44 B.C.), Pliny (23­79 A.D.) and Quintillian (30­100 A.D.), for example, described the development of sculpture beginning from the 5th century B.C., moving from crude early representations to a style of perfect naturalism (the way things really look) in the 4th century B.C. (evidenced by the sculptural work of Phidias on the Parthenon), to idealism (the way things ought to look in a perfect world). (25) These ways of writing about art objects continued, for the most part without change, from antiquity, throughout the first millennium and up to the Middle Ages. (26)

The study of art became a subject in its own right in the 16th century with the publication of Giorgio Vasari's Lives of Artists in 1550 in Florence. (27) The Lives is a series of biographies which treat the Renaissance artist as genius, set apart from ordinary man by the grace of God. The Lives featured artists such as Leonardo da Vinci, Michelangelo and Raphael; and their achievements in painting, sculpture and architecture were compared to the classics of ancient Greece and Rome. Unlike prior historians, Vasari did not merely describe art works; instead, he made judgments about the quality of art works for the purposes of attribution and to decide which artists belonged among the most accomplished of the Renaissance. (28) Vasari assessed artistic quality on the degree of naturalism or illusion attained and considered ideal beauty to be the selection and combination of the most beautiful parts of nature. He encouraged connoissuership and the close study and analysis of works of art, leading to the classification of styles of individual artists and schools, and tracing the influences among them. (29)

Following the peak of the Renaissance style (generally considered from 1500 to 1525), the history of Western art is best characterized by a series of stylistic innovations and reactionary movements, labeled by historians with such terms as the Baroque, Rococo, Neo­Classical and Romantic periods. Not surprisingly, these movements in painting and sculpture had companion periods in music and literature. At first, each of these movements presented, in some way, a challenge to the then­established style of art. They subsequently became popular and, therefore, established in their own right, and, eventually, declined as they were challenged by a new style or the revival of an old style.

The Renaissance "classical" style of Leonardo da Vinci, Michelangelo and Raphael can best be characterized by clarity, balance and restraint. By the mid to late 16th century, many artists began moving away from this classical style and developed a style that had more of a mannered elegance. (30) This break led to the rise and dominance in the 17th century of the Baroque artists (such as Caravaggio and Bernini in Italy, and Rubens, Rembrandt and Vermeer in Northern Europe), whose painting and sculpture were generally characterized by great drama or elaborate ornamentation.

Despite the work of these Italian and Northern artists, it was France that became the most culturally (and militarily) powerful European country in the 17th century (a reign that, in the visual arts, would continue until the middle of the 20th century). In response to the dramatic works of the Baroque painters, many French artists began once again to champion the classical style. The Frenchman Nicholas Poussin (1593­1665) was the protagonist of the classical style in the 17th century. He wrote that the painter must:

make every effort to avoid getting lost in minute detail, so as not to detract from the dignity of the story. He should describe the magnificent and great details with a bold brush and disregard anything that is vulgar and of little substance. Thus the painter should not only be skilled in formulating his subject matter, but wise enough to know it well and to choose something that lends itself naturally to embellishment and perfection. (31)

Following Poussin's death, the French government, under Louis XIV (crowned in 1661), adopted classicism as the officially approved style in order to glorify the monarchy. (32) Louis XIV also reconstituted the Royal Academy of Painting and Sculpture in Paris to inculcate this style. The Academy even devised a method for grading artists of the past and present in such categories as drawing, expression and proportion. (The ancient Greeks and Romans received the highest grades, followed by Raphael and Poussin. The Venetians, such as Veronese, and the Dutch received the lowest marks.) (33)

In England, Sir Joshua Reynolds, the president of the Royal Academy in London, also professed the Academy style. In his famous Discourses, Reynolds developed a hierarchy for artistic merit in painting based on subject matter and style that was similar to the rules of the French Academy. (34) Paintings of subjects from Greek and Roman mythology and history and the Bible were considered to be more dignified than paintings of landscapes, which, in turn, were considered more advanced and noble than portraits and still life paintings. (35)

Following Louis XIV's death in 1715, the French nobility were no longer tethered to the court at Versailles, and the monarchy loosened its grip on the French Academy. In this freer society, artistic taste swung in the other direction toward the highly fashionable style of the Rococo painters such as Antoine Watteau, Francois Boucher and Jean­Honore Fragonard. Instead of choosing noble and dignified subjects from Greek and Roman mythology or the Bible, these painters showed scenes of elegant society, generally in parklike settings, and comedies. (36)

The Rococo period lasted only a short time, however, as the politics of the French Revolution and Empire greatly influenced the favored artists of the late 18th and early 19th century. A revival of classical antiquity (the "Neo­Classical" period) dominated the late 18th century (e.g., the painting of Jacques­Louis David, a hero of the French Revolution), and was linked to the Enlightenment thinkers in France, England and Germany. Then, around 1800, the Romantic artists (as well as writers and musicians) began to flourish. (37) These artists were more linked to each other in thought (generally a "return to Nature") than in style, which was really a revival of many different styles (e.g. the "Neo­Rococo" of Francisco Goya in Spain, the "Neo­Baroque" of Theodore Gericault and Eugene Delacroix in France, the "Neo­Classicism" of J.A.D. Ingres also in France, and the landscape painters of France and England including Camille Corot, Jean­Francois­Millet, John Constable and J.M.W. Turner).

Toward the end of the 19th century, at the dawn of the Industrial Age, a revolutionary development in painting took place in France. In 1863 Edouard Manet (1832­1883) shocked the Paris art world with his "Dejeuner sur l'herbe" (App. 4a). This painting particularly offended contemporary morality by juxtaposing a nude woman with two men in contemporary dress in an outdoor setting, without a title that invoked any "higher" meaning. (38) More importantly, however, the painting is among the first to use pictorial elements purely for aesthetic effect, thereby demonstrating that painting does not have to be a window to the world. Manet took this concept even further by painting his later pictures with very little modeling, depth or shadows, thus rejecting the notion that a painting must transform a flat surface into a pictorial space. (39)

Manet's style of painting was adopted and advanced by Claude Monet and the Impressionist painters, including Camille Pissarro, Auguste Renoir and Edgar Degas. (40) When these artists were refused permission to exhibit at the Salon of Paris, they were forced to organize an exhibition of their own works in the spring of 1874. (41) Their paintings depicted outdoor, "slice­of­life" scenes using innovative networks of color and seemingly spontaneous brush strokes. Painters such as Paul Cezanne carried Impressionism even further by painting still­life subjects (bowls of apples, for instance) using brush strokes that resulted in highly textured canvasses and perspectives that could not exist in the real world. (42)

Just as there were standards for judging art in the 16th through 19th centuries, there are also standards for judging 20th century art. However, judging artistic excellence in the 20th century is more complex than in the past because of the tremendous variety of artistic styles and movements. (43) Not only have new and previously unimagined styles of painting and sculpture emerged in the 20th century, entirely new forms of art have been developed. This tradition was begun around 1913 when Marcel Duchamp began to display ordinary objects such as bicycle wheels, shovels and, in one case, a urinal, as "ready made" sculptures. (44) Duchamp's intent in presenting such objects, without altering them at all, was to give them different meaning by placing them in a new context, an art gallery, in order to challenge the idea that aesthetics were necessary for art and to expand the notion of the artist as creator. Duchamp's views were carried forward in the 1960s by the Pop Artists (e.g. Claes Oldenburg, Roy Lichtenstein and Andy Warhol) who displayed ordinary objects as art works to expose art as a commodity and to comment on the new commercial nature of the art world. (45) Since Duchamp's time, unconventional objects such as air, light, sound, words, live persons, animals and food have all been used as components of art works. In addition, photography, video, installations, performances ("happenings"), environmental constructions ("earth art"), assemblages, and mere ideas have become legitimate art forms.

These are fascinating, exciting and challenging times for artists, art historians and critics. Artists are choosing new and controversial subjects for their art as well as presenting new forms and technologies to embody those subjects. It is a time when the audience may have just as much responsibility for the understanding of an art work as the artist has in conveying its meaning; a time when sensory experience, traditionally thought to be paramount in the appreciation of the visual arts, may be subordinate to thought; a time when art does not even require a tangible object. (46)

Despite the changed nature of art in the 20th century, there remain standards for determining artistic excellence. Creativity, imagination, originality, technique, meaning, style, and self­expression are all still relevant. However, it requires skilled, knowledgeable and fair evaluators to apply these standards.

B. "Artistic Excellence" And "Artistic Merit" Must Be Evaluated Within The Particular Context Of The NEA Program

For the purposes of the void­for­vagueness doctrine of the Fifth Amendment, statutory language must be interpreted in the "particular context" within which the legislation was enacted. Grayned v. City of Rockford, 408 U.S. 104, 112 (1972) (quoting American Communications Assn. v. Douds, 339 U.S. 382, 412 (1950)). The "particular context" within which "artistic excellence" and "artistic merit," as used in Section 954(d)(1), must be evaluated for vagueness purposes is the NEA grant program. It is the NEA decision­makers, after all, who must apply those standards. Because these decision­makers are knowledgeable about the arts (indeed, many are experts in their fields), "artistic excellence" and "artistic merit" are concepts with which they are extremely familiar.

In order to arrive at a meaningful evaluation of art, especially 20th century art, the evaluator must have knowledge about the objects at which he or she is looking. The more knowledge, the better. Important information to the evaluator may include the identity of the artist, his or her background, knowledge of prior works done by that artist, and the locale in which the work was created. In addition, he or she must be able to place the object within its art historical context. Is the work influenced by a prior artist? Are there literary or musical influences? Is the work making a statement about the history of art, as Duchamp's works were? Finally, and perhaps most importantly, the evaluator must be able to learn about the art work by closely looking at it. The ability to learn about an object by looking can come only with experience. (47) If the judge is a person who has examined hundreds or thousands of the same type of object, the evaluation becomes much more advanced and reliable. For example, an expert in ancient Greek painted ceramic pots could probably, without much controversy, examine two such pots and explain why one has more artistic merit than the other. This same is true, of course, in judging literature, music and performing arts.

Evaluating the art created by one's contemporaries is usually more difficult than evaluating art of the past. The problem is lack of perspective. (48) As with the writing of any history, a certain period of time needs to pass before any particular event can properly be put into context. Despite these complexities, there are experts in the various arts who are equipped with the knowledge, skill and experience to make valid evaluations of art works. Congress recognized that it would require the talent of these experts to make the determinations necessary to award NEA funds. The Act requires that funding applications be reviewed by advisory panels composed of artists and "lay individuals who are knowledgeable about the arts." 20 U.S.C. @ 959(c)(2). Recommendations of the advisory panels are reviewed by the National Council of the Arts, which is composed of people selected "from among the private citizens of the United States who (A) are widely recognized for their broad knowledge of, or expertise in, or for their profound interest in, the arts and (B) have established records of distinguished service, or achieved eminence, in the arts." 20 U.S.C. @ 955(b). In practice, the NEA advisory panels and the National Council are comprised of just such experts, skilled at discerning the best works among those submitted for NEA funding.

Thus, within the "particular context" (Grayned, 408 U.S. at 112) of government funding of arts programs, "artistic excellence" and "artistic merit" are not unconstitutionally vague. Although lay people with only passing knowledge of the arts cannot make an informed decision regarding an NEA grant award, these are not the people Congress selected to be the decision­makers for NEA grants. Instead, the NEA peer panelists and the NEA Council members, people with a broad understanding of the history of their particular artistic discipline and knowledgeable in the recent developments in the art or literary world, make the judgments regarding the applicants for NEA funding. (49) They are not well­versed in "standards of decency" and "the diverse beliefs and values of the American public," but they are uniquely qualified to evaluate artistic excellence.

C. "Artistic Excellence" And "Artistic Merit" Do Not Include "Standards Of Decency" And "Respect For The Diverse Beliefs And Values Of The American Public"

Throughout history, artists have traditionally experimented with what is new and unconventional, and artistic work often compels the viewer to look at the world in new, often troubling, and provocative ways. Given that tradition, a standard for judging artistic merit that focuses upon "general standards of decency"­­and implicitly the idea of conformity­­is fundamentally antithetical to the making of art. This is especially true in the 20th century when almost every major art movement is a rejection of the perceived established order in the art world or society.

Even if "general standards of decency" and the "beliefs and values of the American public" could be defined with some degree of accuracy, imposing those standards on NEA's selection of works showing artistic excellence and merit would have a devastating effect on the creation of art. Such standards would oblige artists to compromise their creativity and originality in order to conform to the viewpoint of the majority. This result was clearly not intended by Congress when it created the NEA in 1965. The Senate Report on the legislation creating the NEA stated:

It is the intent of the committee that in the administration of this act there be given the fullest attention to freedom of artistic and humanistic expression. . . . Countless times in history artists and humanists who were vilified by their contemporaries because of their innovations in style or mode of expression have become prophets to a later age.
Therefore, the committee affirms that the intent of this act should be the encouragement of free inquiry and expression. . . . Conforming for its own sake is not to be encouraged, and . . . no undue preference should be given to any particular style or thought of expression. (50)

The NEA suggests that "artistic excellence" and "artistic merit" refer only to "technical proficiency," and that the "decency" provision serves to expand those standards. Pet. Br. 42­43. This equation of artistic excellence with technical skill grossly simplifies the definition of artistic merit and ignores entirely the roles of creativity, imagination, originality and meaning in art. For it is the relationship between the mode of representation (the "technical proficiency") and the meaning of a work that raises an object from mere craft to the level of art. (51) By imposing standards that are impossible to define and reducing the universe of possibilities, the "decency" and "respect" provisions necessarily infringe on artists' ability to choose the most effective mode of representation for their art and to give their art work meaning. Far from expanding standards of "artistic excellence" and "artistic merit," the "decency" and "respect" provisions detract from them.

Imagine the results if Americans were polled on their "standards of decency" and their "beliefs and values." (52) Even if a consensus could be reached (what would the questions be?), the majoritarian view on various topics, if implemented, would chill the creation of art. In order to be eligible for an NEA grant, artists would be compelled to make art works that satisfied some notion of political correctness, instead of, simply, the best art they can create. To the extent that such vague statutory language as the "decency" and "respect" provisions mean anything, they imply a standard of that which is accepted, traditional and orthodox. To use such a benchmark to evaluate art that is intended to provoke viewers and to challenge traditional standards amounts to setting a standard that can never be met. As a standard for receiving NEA grants, this may be a prescription for the death of art funded by the NEA. While some members of Congress may intend that result, they should not be permitted to achieve it under the guise of an unconstitutionally vague statute.

CONCLUSION

For the foregoing reasons, the amici curiae respectfully submit that the judgment of the court of appeals should be affirmed.

Respectfully submitted,

Gloria C. Phares, Counsel of Record, James Kronenberg, PATTERSON, BELKNAP, WEBB, & TYLER LLP, 1133 Avenue of the Americas, New York, New York 10036, (212) 336­2000

February 6, 1998

APPENDIX [PHOTOGRAPHS]


NOTES

(1) Pet. App. 102a­103a. Pub. L. No. 101­512, @ 318, 104 Stat. 1960 (1990), reprinted in 1990 U.S.C.C.A.N. (104 Stat.) 1960. Title 1 of the Act amended the National Foundation on the Arts and Humanities Act of 1965, 20 U.S.C. @@ 951 et seq. Return to text

(2) See J.A. 12, 33; Department of the Interior and Related Agencies Appropriations for 1992, Hearings before the Subcomm. on the Dep't of the Interior and Related Agencies of the House Comm. on Appropriations, 102d Cong., 1st Sess. 234 (Feb. 21, 1991) (testimony of NEA Chairperson John Frohnmayer); Department of the Interior and Related Agencies Appropriations for 1993, Hearings Before the Subcomm. on the Dep't of the Interior and Related Agencies of the House Comm. on Appropriations, 102 Cong., 2d Sess. 613­14 (May 5, 1992) (testimony of NEA Chairperson Anne­Imelda Radice). Return to text

(3) Jane Clapp, Art Censorship: A Chronology of Proscribed and Prescribed Art, 143­45, 167, 369 (1972). Return to text

(4) Frank Whitford, Egon Schiele 115 (1981). Return to text

(5) Clapp, supra note 3, at 265, 323­25, 369. Return to text

(6) H.W. Janson and Anthony F. Janson, History of Art 494­95 (5th ed. rev. 1997). The painting was originally known as "The Last Supper." On July 17, 1573, Veronese was summoned by the Holy Office to be questioned before the Holy Tribunal, Paolo Caliari of Verona:

. . . Q: Who are at the table of Our Lord?
A: The Twelve Apostles.
Q: What is St. Peter, the first one, doing?
A: Carving the lamb in order to pass it to the other end of the table.
Q: What is the Apostle next to him doing?
A: He is holding a dish in order to receive what St. Peter will give him.
Q: Tell us what the one next to this one is doing.
A: He has a toothpick and cleans his teeth . . .
Q: Did any one commission you to paint Germans, buffoons, and similar things in that picture?
A: No, milords, but I received the commission to decorate the picture as I saw fit. It is large and, it seemed to me, it could hold many figures.
Q: Are not the decorations which you painters are accustomed to add to paintings or pictures supposed to be suitable and proper to the subject and the principal figures or are they for pleasure­­simply what comes to your imagination without any discretion or judiciousness?
A: I paint pictures as well as I see fit and as well as my talent permits.

Id. at 634­65. To appease his critics, the artist consented to changing the title to "Christ in the House of Levi." Id. at 495. Return to text

(7) Clapp, supra note 3, at 61. Moshe Carmilly­Weinberger, Fear of Art: Censorship and Freedom of Expression in Art 17­18 (1986). Return to text

(8) Pamela Askew, Caravaggio's Death of the Virgin 50­68 (1990); Helen Gardner, Gardner's Art Through the Ages 728 (1991). Return to text

(9) Clapp, supra note 3, at 224­26. Return to text

(10) Op­Ed, Four Frames on America, N.Y. Times, July 6, 1991, at A21; N.Y. Times, July 20, 1991, at A18 (Letters). Return to text

(11) See, e.g., 135 Cong. Rec. S 5595 (daily ed. May 18, 1989) ("Senator [D'Amato] is absolutely correct in his indignation and in his description of the blasphemy of the so­called artwork. I do not know Mr. Andres Serrano, and I hope never to meet him. Because he is not an artist, he is a jerk."); id. at S 12968 (Oct. 7, 1989) (criticizing the conference bill on the 1990 appropriations bill for its failure "to get tough on the NEA for funding trash like Mr. [Robert] Mapplethorpe's and Mr. Serrano's"). One of the immediate results of Senator Helms's attack was the legislation at issue here. Return to text

(12) Roxanne Roberts, Jackson: Not Insulted by Painting; Says Destruction of Portrait Reflects Hidden Anger, The Washington Post, Dec. 4, 1989, at B1; Hammering the Body Politic; Blacks Wreck a Portrait of a Blond, White Jesse Jackson, Time, Dec. 18, 1989, at 79. Return to text

(13) See John Russell, Turbulent Restatements from Robert Colescott, N.Y. Times, Mar. 3, 1989, at C32; Paul Richard, Robert Colescott's Perspectives on Black and White, The Washington Post, January 20, 1988, at C1. Return to text

(14) 95 Cong. Rec. H 11584 (Aug. 16, 1949). Return to text

(15) Stephanie Baron (ed.), "Degenerate Art": The Fate of the Avant­Garde in Nazi Germany 9­23, 45­46, 89 (1991). Return to text

(16) Id. Return to text

(17) See David Zane Mairowitz, Fascism a la Mode: in France, the Far Right Presses for National Purity, Harper's Magazine, Oct., 1997, at 59; Sharon Waxman, Artists Put on Brakes at France's Right Turn; Some Urge Boycott in National Front Towns, The Washington Post, June 22, 1995, at C1; Ian Traynor, Austrian Far Right Turns the Arts into Theatre of War, The Guardian (London), Dec. 14, 1995, at 15. Return to text

(18) In Hannegan, this Court held that to uphold the Postmaster General's revocation of Esquire Magazine's second­class postal permit on the ground that, although not obscene, material in the magazine was "indecent, vulgar and risque" "would grant the Postmaster General a power of censorship [which is] abhorrent to our traditions. . . ." 327 U.S. at 149, 151. Return to text

(19) Some philosophers of art and aesthetics, for example, have recognized that visual art is the marriage of (1) content and (2) a mode of visual presentation. See, e.g., G.W.F. Hegel, Introductory Lectures on Aesthetics 13 (Michael Inwood ed. & Bernard Bosanquet trans., Penguin Books 1993) ("What is now aroused in us by works of art is over and above our immediate enjoyment, and together with it, our judgment; inasmuch as we subject the content and the means of representation of the work of art and the suitability and the unsuitability of the two to our intellectual consideration."); Arthur C. Danto, After the End of Art: Contemporary Art and the Pale of History 81­98 (1997) (applying Hegel's paradigm to contemporary art criticism). Return to text

(20) Pet. App. 39a. The exact passage is: "But if we must give up any hope of a trustworthy rating scale for artistic quality, can we not at least expect to find a reliable, objective way to tell art from non­art? Unfortunately, even this rather more modest goal proves so difficult as to be almost beyond our powers." Return to text

(21) H.W. Janson, History of Art 9­17 (1st ed. 1962). Return to text

(22) Janson, supra note 6, at 16­25. Return to text

(23) Id. at 16. Return to text

(24) Eric Fernie, "A History of Methods." Art History and Its Methods: A Critical Anthology 10 (1995). See Pliny the Elder, Natural History, excerpts reprinted in Janson, supra note 6, at 213­14. Return to text

(25) Fernie, supra note 24, at 10. Return to text

(26) Id. Return to text

(27) 1 Giorgio Vasari, Lives of the Artists (George Bull trans., Penguin Books 1965). See Fernie, supra note 24, at 22­28. Return to text

(28) Vasari, supra note 27, at 83­84 ("I have endeavored not only to record what the artists have done but also to distinguish between the good, the better, and the best . . ."). Return to text

(29) See Fernie, supra note 24, at 22­28; Janson, supra note 6, at 452. Return to text

(30) The "Mannerist" style is represented by the Italian painters Pontormo (1494­1556), Parmigianino (1503­1540), and Bronzino (1503­1572). See generally Janson, supra note 6, at 482­496. Return to text

(31) Nicholas Poussin, from an undated manuscript, reprinted in Janson, supra note 6, at 641. Return to text

(32) See Janson, supra note 6, at 600­01. Return to text

(33) Id. at 601. Return to text

(34) Sir Joshua Reynolds, Discourses on Art, ed. Robert R. Wark, 57­73 (1975). Return to text

(35) Id. Given Reynolds's theories, it is surprising that he was, in fact, primarily a painter of portraits. Return to text

(36) See generally, Janson, supra note 6, at 610­629. Return to text

(37) See generally, Janson, supra note 6, at 672­706; Robert Rosenblum and H. W. Janson, 19th Century Art 114­218 (1984). Return to text

(38) See Janson, supra note 6, at 720; see also T.J. Clark, The Painting of Modern Life: Paris in the Art of Manet and His Followers 94­95 (1984). Return to text

(39) Rosenblum and Janson, supra note 37, at 278­295. Return to text

(40) See generally id. at 331­53. Return to text

  1. Id. at 331­54. Return to text

(42) See generally id. at 384­93. Return to text

(43) As various styles and movements have developed, so too have the number of "isms" that historians use to label them. Examples include: Cubism (e.g., Picasso and Braque), Futurism (e.g., Umberto Boccioni), Surrealism (e.g., Rene Magritte, Joan Miro, and Salvador Dali), Dadaism (e.g., Marcel Duchamp), Suprematism (e.g., Kazimir Malevich), Expressionism (e.g., Franz Marc, Max Ernst, and Egon Schiele), Abstract Expressionism (e.g., Jackson Pollock and Willem de Kooning) and Minimalism (e.g., Sol LeWitt, Donald Judd and Ellsworth Kelly). Return to text

(44) See H.H. Arnason, History of Modern Art 227­230 (3d. ed. 1986). Return to text

(45) See generally, id. at 452­470; Janson, supra note 6, at 831­834; Michael Archer, Art Since 1960 9­25 (1997). Return to text

(46) Because art created in the last twenty­five years has gone so far beyond traditional notions of painting and sculpture, some art critics have argued that the history of art ended in the 1960s and that art created since that time is "beyond the pale of history." See Arthur C. Danto, After the End of Art: Contemporary Art and the Pale of History (1997); Hans Belting, The End of the History of Art (Christopher S. Wood trans. 1987). Return to text

(47) The art critic Clement Greenberg wrote in 1961: "Experience itself­­and experience is the only court of appeal in art­­has shown that there is both bad and good in abstract art. And it has also been revealed that the good in one kind of art is always, at bottom, more like the good in all other kinds of art than it is like the bad in its own kind." Clement Greenberg, "The Identity of Art," 4 The Collected Essays and Criticism 118 (John O'Brian ed. 1993). Return to text

(48) For example, as popular as their style is today and as innocuous as their works now seem, the Impressionist painters were at first rejected by critics. In fact, their first exhibition in 1874 was received with outrage and condemnation. The critic Louis Leroy mockingly commented that viewers might have thought their eyeglasses were dirty by looking at all of the specks in one Pissarro painting. Rosenblum and Janson, supra note 37, at 334. In 1875, a public scandal arose after an exhibition in London of paintings by J.A.M. Whistler, including the painting "Nocturne in Black and Gold: The Falling Rocket" (App. 16a). The critic John Ruskin accused Whistler of asking "two hundred guineas for flinging a pot of paint in the public's face." Id. at 363. Forced to defend his reputation and his belief in the artist's freedom to create beauty by his own standards, Whistler sued Ruskin for libel and won after a trial in which many British artists testified about whether the painting was a legitimate work of art. Id. Return to text

(49) Despite the addition of more lay people to the NEA advisory panels and the addition of members of Congress to the National Council of the Arts, the panels are still made up primarily of experts in the arts. Return to text

(50) S. Rep. No. 89­300, at 3­4 (1965). Return to text

(51) See texts cited at supra note 19. Return to text

(52) The results of such a poll might resemble the results of the poll conducted by the artists Vitaly Komar and Alexander Melamid to create "America's Most Wanted Painting" (App. 17a). See Painting By Numbers: Komar and Melamid's Scientific Guide to Art, ed. Joann Wypijewski (1997). Komar and Melamid sought to learn through a scientific study what the American people wanted if they could construct a painting. They polled 1001 persons, asking them what kind of paintings they liked and what features, colors, textures, etc. they wanted to see in painting. The survey showed that Americans' favorite color is blue (44%), and that they wanted "realistic­looking" paintings (60%), dishwasher­sized (67%), wild animals (51%) in their natural setting (89%), both ordinary and famous people, visible brush strokes (53%), blended colors (68%), etc. The artists took the survey results and painted "America's Most Wanted Painting", a landscape with mountains, a lake and blue sky, a posed George Washington figure, a hippopotamus, deer frolicking through the lake, and a group of people walking. It is easy to see that very few Americans would actually want "America's Most Wanted Painting." Although its individual aspects may be desirable, the sum of its parts is much less desirable. Id. Return to text


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