Identities, Politics, and Rights

The First Amendment and the Meaning of America

The First Amendment and the Meaning of America Steven Shiffrin Political pundits often proclaim the view that conservatives know how to tap into American values in a way that progressives do not. Consider this tiny masterpiece from Patrick Buchanan: "The arts crowd is after more than our money, more than an end to the congressional ban on funding obscene and blasphemous art. It is engaged in a cultural struggle to root out the old America of family, faith, and flag, and recreate society in a pagan image."l Buchanan's value-packed epithets have much to teach American progressives, and the lessons are ultimately quite somber. But let us begin with the obvious, albeit the underappreciated obvious. Everyone understands that the "arts crowd" is engaged in a cultural struggle. From the perspective of the arts community, that struggle is ordinarily seen as one in which the country's cultural standards are improved or "elevated." Moreover, the arts community has a well-developed sense that the denial of funding to blasphemous art is contrary to the art community's understanding of the first amendment. Indeed, the art community's sense of the First Amendment sometimes runs to the more demanding notion that the First Amendment requires funding for the arts in general-though how much funding is not too clear. lowe thanks for helpful comments to Kathy Abrams, Gregory Alexander, Cynthia Farina, Tracey Maclin, Seana Shiffrin, Gary Simson, Steve Thel, and David Williams. I also owe thanks to participants in workshops at Boston University, Cornell University, and the University of Washington, and, of course, to the participants at the Amherst conference. 1. Patrick Buchanan, "This is the Battle for America's Soul," L.A. Times (March 2S, 1990), Ms· 308 IDENTITIES, POLITICS, AND RIGHTS What is less well appreciated is that the First Amendment itself is at the heart of America's cultural struggle and that cases involving the arts are perhaps the easiest illustrations of a more general phenomenon . Although I will discuss the First Amendment ramifications of the selective denials of funding to controversial artists, I will focus on what may appear to be a digression from the arts, namely the flagburning cases. But the flag-burning cases are no digression. After all, the flag is art, a national art form designed to bring the nation together. Moreover , like those who sponsored the flag, those who fund the arts frequently seek to produce works that can induce a sense of national pride and accomplishment. In a way, this issue makes sense of what might be otherwise inexplicable. The nation has spent considerable sums on art and on museums to house art. It invites citizens to come and appreciate that art. Yet, without substantial artistic education, education that the overwhelming majority of citizens do not have, much of the art housed in museums cannot be appreciated for its place in (or departure from) the tradition that precedes it. Museums, then, are designed in substantial part to show that the nation has a great culture. Like the flag, they represent the Nation. In part because they are "our" museums, in even greater part because "we" fund what goes into those museums, the public exhibits an interest, even occasional outrage, when museums house materials that offend deeply held values. Citizens ask why the public should have to pay for materials they regard as offensive. But public displays of some art exhibits would attract public outrage even in the absence of public funding. Take, for example, the artistic representation of Christ-dipped in the artist's urine. So too, when someone bums a flag, the public response is outrage whether or not public funds have been used to support the "performance." Here many members of the public (including Patrick Buchanan) argue that such expressive actions so deeply offend cherished traditions that they should not be tolerated. But the law is not on Patrick Buchanan's side-at least, not yet. The public must tolerate most offensive speech, including flag burning , and the public is constitutionally required to pay for offensive art in some circumstances. Of course, the latter conclusion is more controversial and more difficult to reach than the first. Nonetheless, the THE FIRST AMENDMENT AND THE MEANING OF AMERICA 309 path to the second conclusion follows from the first. In approaching the flag cases, therefore, we do not digress. Indeed, we enter the forest from a spot where we can...