Silent Galleries:Executive Power and the Chilling of Artistic Speech

Source: The Censorship Horizon: A Survey of Art Museum Directors, Pen.org

1. Background

A mirror for dissent. That has been one of art’s paramount functions since the busts of  Akhenaten were destroyed and left as visages for an onlooking public in Tutankhamun’s new eighteenth dynasty. From abolitionist engravings to anti-war murals of the 1960s to human rights activists like Ai Weiwei, art has long served as protest speech. American artists have used paint, performance, and public space to challenge power, expose injustice, and expand the nation’s democratic imagination. This has been true since before the inception of the American project. In the 1930s, federal projects, such as the Works Progress Administration (WPA), categorically shifted art from superfluous into a civic instrument. This democratized culture and ignited debates about government influence. The Vietnam era brought waves of protest art, taking the shape of photography, street theater, and conceptual installations which blurred the line between art and political speech.

Artists always test the boundaries of constitutional protection when it comes to creative expression. Artists like Andres Serrano (known for Piss Christ) and the photographs of Robert Mapplethorpe have inspired national debates over obscenity in art and its viability to qualify for public funding. Even the Black Lives Matter and LGBTQ+ movements of recent years have used murals and public performance pieces to reclaim public space and use it as an effective forum for conversations about social justice. All these ideas, and one grand theme endures—the artist’s undeniable role as a disruptor. Art is both critique and creation. However, this kind of push-and-pull relationship is clearly not just a thing of the past. Even now, government attempts to impose ideological boundaries on art through funding are not to regulate national taste. These executive orders deeply threaten a tradition of American egalitarianism. This is a strong tradition where protest art has always been protected speech.

2. The Issue Presented

In this administration, the legacy of artistic dissent faces renewed peril. Recent executive actions under the current Administration have used narrowingly language to suppress dissent. Executive Order 14161, entitled “Protecting the United States From Foreign Terrorists and Other National Security and Public Safety Threats,” used language that actively encourages unfavorable actions against foreigners residing in the United States who express unfavorable attitudes toward the U.S and its institutions. This is a slippery, and undefined, slope when it comes to protecting protest speech. Another such Executive Order entitled “Implementing the President’s Government Efficiency Initiative” sought to condition federal funding of grants on government organizations' strict adherence to a narrow vision of “American patriotism” and “traditional aesthetics.” 

By imposing a set of clear ideological borders on the funding of creative expression, these directives are quickly turning the arts into a tool to enforce political conformity. As the introduction showed, this Nation is no stranger to silence or convenience as a trade off for perceived decency or public order. However, such restrictions should raise profound constitutional concerns for those paying attention. The Executive Orders impose restrictions which blur the boundary between government speech and private expression. They teeter on viewpoint discrimination. Most of all, they chill the very artistic experimentation that the First Amendment was designed to protect. Under these orders, as a policy artists will lose financial support from organizations like the NEA. However, can the administration legally dictate the terms of cultural identity? What happens to the lively spirit of a democratic nation when  propaganda is substituted for art and compliance takes the place of creativity?

Source: ‘Untitled #1,’ by David Pulphus, ncac.org

3. The First Amendment

Many kinds of artistic expression enjoy robust protection under the First Amendment. As the primary clause of the Bill of Rights, it ensures that Congress cannot make laws that infringe upon the freedom of religion, speech, press, assembly, and the right to petition the government. Regarding speech, the Supreme Court has repeatedly recognized that not only spoken or written words are protected, but visual, performance, and digital media fall under the broader umbrella of “speech.” It has been affirmed that expressive works, including everything from paintings, murals, theater performances, to multimedia installations are protected speech. This means that they cannot be legally suppressed by the government  based on their subject matter. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Court held that the government can not compel or silence expression due to an oppositional message. A similar principle is echoed in National Endowment for the Arts v. Finley. While there are small exceptions carved out of the speech protections for obscenity, violent incitement, libel or defamation, and true threats (more heavily detailed in the case Miller v. California), courts have consistently sought to protect expression which challenges social norms and provokes public debate. Most courts still recognize that this kind of expression is central to the democratic function of speech.

4. Funding Loss and Its Effect on American Art 

Since the founding of the National Endowment for the Arts (NEA) in 1965, artists of all kinds have been relying on the critical grants it has shared in order to make their visions possible. While this fund, and others like it across the country who receive federal monies, may allocate resources based on neutral criteria, they work not to suppress art with politically unpopular viewpoints or that compel adherence to specific ideological positions. In fact, both National Endowment for the Arts v. Finley and Agency for International Development v. Alliance for Open Society International, Inc. demonstrate that restrictions cannot operate as a form of viewpoint discrimination when federal funding is involved. Even indirect undermining of funding by administrative discretion may have lasting effects on our National memory. Constitutional concerns are raised when federal funds become tied to content restrictions. In the 1990s, under George H.W. Bush’s administration, implementation of NEA “decency” standards sparked controversy in criticizing art pieces and raising questions about government censorship. The Supreme Court in Finley, held that while aesthetic criteria may guide funding, the government cannot impose specific viewpoint-based restrictions to quiet disfavored art. Though this precedent continues to morph, debates over the balance between supporting the arts and protecting artists’ First Amendment rights still remain a viable and vital question.

Even absent formal prohibitions, the threat of losing federal support does often chill creativity. It discourages artists from exploring controversial or socially critical topics. 

The Human Rights Foundation finds that art is one of the first institutions often attacked in autocratic and authoritarian regimes. Aida Kasparova writes, “Even if it does not manifest explicitly as a law, totalitarian regimes create environments not conducive to the free creation of art. The co-founder of Siyah Bant, a Turkish organization that tracks art censorship, Banu Karaca,, notes that Kurdish communities face “surveillance, police raids, archive confiscations, and requirements for ‘pre-clearance’ by authorities.” Such conditions not only discourage the creation of art but they ensure that any art cannot be a meaningful form of cultural expression. Constitutional protection of the arts must stand firm in encompassing protected speech. The First Amendment encompasses a broader set of ideals and principles that undergird American expressive freedom and must be protected fiercely by institutions that find them valuable. 

Source: “CENSORED” - Art Project Georgi Yamaliev, behance.net

This relationship to federal monies also illustrates something deeper: Art is not just expression, it is also an industry. Federal funding from agencies like the NEA have often sustained emerging and disenfranchised artists, even small organizations. Grants from NGOs like this provide them with a small foothold in a giant market that is cut-throat and competitive. But when grants come with ideological strings attached, financial incentives can easily pressure artists to self-censor. This, in turn, shapes the kinds of work audiences see. There is a trend toward those forms that seem to be most  economically viable. Even commercial galleries and private patrons feel ripples of this as artists may avoid controversial showings or exhibitions to preserve financial backing. Some may not even want to identify with artists groups or dissident artists in order to maintain economic viability which begins to degrade artistic communities. Recognizing that art is both creative and economic underscores the viewpoint restrictions on federally funded projects, which not only chills the expression itself, but also the diversity and vitality of the broader creative market.

5. Recommendations 

As with the liquidity of art and creation itself, no one-size-fits all solution will work in the face of surmounting First Amendment pressure. However, if the Nation does owe a duty to safeguard artistic expression against the chilling effects of executive overreach for emerging artists, then this undertaking will likely require a hearty combination of both legal and social measures. Via legal channels, artists and advocacy organizations should continue to challenge the conditionality of arts funding on executive directives which impose viewpoint-based restrictions. As legal professionals continue to challenge bad faith applications of these restrictions, Courts should be encouraged to rigorously scrutinize conditions which tie public support to ideological compliance. Judges and legislators alike should be asked to protect even the broadest reading of the First Amendment in the cases of artistic expression. Lastly, Congress should consider further codifying protections for federally funded art in order to to prevent arbitrary censorship.

Source: “Making Connections:‘Fahrenheit 451’ and Today”, NYTimes.com

Socially, the ballgame will be different. Education and exposure of young people will be equally critical to legal safeguards. Things like integrating art history and protest art into school curricula, hosting community exhibitions with local artists, and promoting participation in public art programs can cultivate appreciation for a diversity of perspectives. This approach can also normalize controversial or politically critical work. A recent project undertaken by eighth-grade students at the Village Community School in Manhattan is a great example. Students were assigned to read Fahrenheit 451 by Ray Bradbury and write a follow-up essay. Using modern news articles as sources, they needed to argue why contemporary society may or may not appear similar to the dystopia described in the 1953 novel. It is these kinds of engaging and sophisticated educational projects which are key in molding a conversant society of leaders who understand the value of protected creative expression. 

In combining judicial oversight, legislative safeguards, and proactive (and early) social engagement, the American people can ensure that protest art remains a protected form of speech for dissent, dialogue, and true democratic participation.

*The views expressed in this article do not represent the views of Santa Clara University.