Free Speech Concerns … Updated, Part II

GUEST: Floyd Abrams
VTR: 6/11/1992

I’m Richard Heffner, your host on THE OPEN MIND, and when I introduced our last program, I noted that it has become time again for what seems to be my annual fix on the air – my regular bout of rigorous talk, sometimes disagreement, too, with my friend Floyd Abrams, partner in the distinguished Cahill, Gordon, and Reindel Law Firm, and one of our nation’s premier constitutional experts, whose concerns over the years have so often focused on First Amendment matters.

Last time, too, I introduced our exchange by noting, among other things, Mr. Abrams and I would surely deal with First Amendment aspects of government support for the arts. And possibly, with the appropriateness and free speech dimensions and implications of “faction”, that questionable media mix of fact and fiction perhaps best symbolized recently by the controversy over “JFK”, Oliver Stone’s enigmatic masterpiece; but we didn’t. We never had time to get to those subjects. Yet I made my guest promise to come back to this table so that we could.

First off, then, I want to ask Floyd Abrams if the recent flacks over making or not making National Endowment for the Humanities grants to controversial artists have in any way made him question the essential wisdom of government aid to the arts. Floyd?

ABRAMS: No. It was always inherent in any government support for the arts that we could have the flacks that we’re now having and that we’ve had for the last few years. We managed, though, for over 20 years, to not have almost any. We established a system which worked astonishingly well, with peer reviewing groups which may have been effective, maybe not, but with not censorship; which had made judgments which at least were not in general, based on content, but with someone’s notion, at least, of artistic integrity and artistic contribution. I became persuaded from that that we could continue to have government support for the arts without having government control over the arts. Is that more problematic now? Sure. Because now we have Congress front and center; we have an appointee to the position formerly held by Mr. Frohnmayer, who seems inclined towards yielding to the pressures of the day, the winds from the White House, the winds from Congress, etc. And yet it’s such a small amount of the total amount that is spent on the arts by our government. I think that there are constitutional issues raised when the government gets involved in content decisions based on judgments that we don’t want to show this or that – not because it’s ugly, but because we disapprove of the topic. I think that that raises a real First Amendment problem, a major First Amendment problem. But that said, I think that we ought to continue with government support for the arts. I find bizarre the opposition of people like George Will, who first made their way into public consciousness on Channel 13 and other public TV stations, opposing this as a matter of principle. It’s not an upper middle class support system. It’s what every country in the Western world, and many not in the Western world offers in an effort to inform their citizenry – and I think it’s a great idea which some people in Congress are trying to ruin.

HEFFNER: But, you know, last time, when I jokingly needled you about British attitudes towards free press matters, the answer was, in a sense, “Well, that’s the British, and I think they’re wrong in what they do”. Here, when you say other peoples have extended themselves this way, they do it out of a cultural tradition; and maybe you can say that we lived beyond our means, in a sense, for twenty years or more, not having this kind of trouble; that you would guess that a country like ours would have a tough time avoiding the issues we’re facing today if we got into government support of the arts.

ABRAMS: Well, I don’t see any way to avoid those issues. We’re going to have those issues presented. They’re going to lead, among other things, to legal issues. But beyond legal issues, they’re going to lead to greater public dissent of the whole concept of government support for the arts. That’s all there. That said, my reaction is dissent of that sort is protected by the First Amendment, too. The fact that some of it is irresponsible, the fact that some of it is politically motivated; some of it is neither, and is just the expression of views of which I disagree is another way of saying that we live in an intensely politicized atmosphere today on cultural values. My friend Dan Quayle isn’t wrong when he says that we live in two countries. He wasn’t the first one to say it either, but he’s quite right to say that there’s a major cultural divide in this country. And if it comes to pass that eventually the public, through Congress, decides not to fund ANY arts anymore, because people are angry over this particular photograph, or that particular example of performance art, what can one say? It’s too bad. It’s a sad reflection on our some-time immaturity as a public. But it’s not an argument against public support for the arts. It’s just a constant risk, that so long as we have government support for the arts, someone in Congress is going to “red-bait”, in 1991 terms, which is generally “sex-bait”, and say because the government is involved in funding, it shouldn’t fund this or that or something else, even though some independent decision-maker, some peer review board has decided that it has some level of artistic merit. Too bad, but it’s not something that’s going to lead us to end support for the arts.

HEFFNER: But let me go back a moment. You said “red bait”, “sex bait”. You’re a kindly gentleman. Not to me, but at times.

ABRAMS: I try.

HEFFNER: Have you no sympathy whatsoever for those who say “Our dollars are being used to support ideas, ideals, values that really have nothing to do with my country, meaning my part of that country.”?

ABRAMS: I understand it, and it makes a sort of raw, elemental sense, too, when I object to any one of a lot of sort of public fundings to causes with which I disapprove and failure to fund causes with which I approve. Well, what I’m saying is that I think that public funding for the arts serves an enormous public purpose, a public education; and that if we wind up with a few exhibitions which people find offensive as a result, that that is a price well worth paying. Now, if the public thinks it’s not worth paying, why then we won’t pay it anymore. I’ll just be as I usually am, in the minority, in hoping that the public thought something other than what it wound up thinking.

HEFFNER: But of course, we’re not only talking, today as we sit at this table, about a few exhibits, or whether one person who is granted money turns around and says “I am going to use this money for those who are not granted funds, these “no-nothing” reasons. We’re talking now about public television, as you said, with George Will and others, making very, very strong points whether you support them or not. Doesn’t it feel to you, that we may be coming now, to an important crossroads, not just, well, if they say, “We’ll no longer support it”…they’ll say that?

ABRAMS: Sure, it’s an important crossroads; All the more important to win the battle. But I don’t see any way to compromise this one out. I don’t see any way to say “Look, let’s have the public funding for the arts, but let’s just fund orchestras, alright? Orchestras don’t get people angry”. We could do that. It would be constitutional…

HEFFNER: Then why do you say…

ABRAMS: …to do that.

HEFFNER: We can’t do that…I mean you say that we can…

ABRAMS: …we shouldn’t do that. What I’m saying is that there are a lot of artistic forms that the public has been served and served well by some small appropriation of tax-payer money, federal money, to support the arts in this country, as every other modern democratic country does. If we have some electronic town meeting some day and the public winds up saying “No, no, never”, why that will be the end of it, assuming Congress gets the message. But my message would be “What a shame that would be”. We’ve profited, not suffered from doing this. And that it’s important to keep the faith on this one. That it’s important for people who care about this to send a message back to Congress. One of the things that disturbs me, by the way, is how ineffectually that’s been done. Where are the museums? I mean I haven’t seen an awful lot of major support, certainly not enough, from the people who go to museums, from the people who go to symphonies, from the people who are the immediate beneficiaries of grants. They simply haven’t been heard from enough. And the entities that have received the monies haven’t been heard from enough. I think we’ve had a number of people get angry and excited, many of them on the merits, many of them outraged; but I don’t think we’ve heard enough from the people who think it’s a good idea to have a reasonable amount of federal support for the arts and the people who are the immediate beneficiaries, in the sense, of going to the museums, going to the symphonies, even watching the performance art, whatever.

HEFFNER: But then I have to ask you the question as to why you think there has been that failure. The other side certainly hasn’t failed…

ABRAMS: I think it’s a few things. I think one of the things is that there is a natural tendency on the part of establishment institutions not to go out on a limb in support, including many people who are on boards of established institutions – tend to think of it as outrageous art or outrageous non-art. It’s not as if people who sit on the great boards of America that provide cultural benefit to the rest of us are the same sort of people who tend to go to performance art, or even the same sort of people who tend to go to photographic museums. Those are the two, by the way, that tend to get into most trouble…

HEFFNER: Hmm.

ABRAMS: …photography and performance art, because, I think, of the immediacy of photography as opposed to painting, say; and the fact that there’s a high political/social content to performance art, and the difficulty a lot of people have in seeing it as art in the first place. So it’s not that one can’t argue about these things or argue seriously about them, but it’s disappointing and troubling to me that an inadequate number of people in the artistic community, broadly viewed, have come forward, have been heard and the like. Now, a lot of the public was heard about public broadcasting.

HEFFNER: Mm hmm.

ABRAMS: Now when that was up in front of Congress a lot of people wrote letters. A lot of members of Congress heard from their constituents who elected them that they liked public television, and that at least on the broadest framed issue, “Shall we continue with public television or not?”, put aside particular programs, “Should we continue or not?”, that a significant number of the public were willing at least to pick up the phone, write a letter, send a telegram, do whatever, to let Congress know that this was something important.

HEFFNER: So that the money was delivered.

ABRAMS: And the money was delivered.

HEFFNER: Or at least appropriated; let’s wait and see whether it’s delivered. But you know, you say that on the constitutional level – I think you say that there isn’t very much question, that the effort to make judgments, and the pressure is on now to make judgments on ideas and on exhibits – that there are very real legal questions.

ABRAMS: What I mean by that is this: On one level, any time you fund the arts you’re making content decisions. How can you not? You can’t fund everything. You have to make decisions. Someone in government has to make a decision about where to spend the money. So there’s no avoiding some content…on the other hand, as we lawyers say, if you were to say on behalf of the government, that we are not going to fund any art having to do with homosexuals, or we’re not going to fund any liberal (whatever that means) art; or we’re not going to fund any art about this topic, or that topic; that raises intensely significant First Amendment issues, because there the government is making a value judgment, putting one idea above another by funding one idea rather than another; and quite possibly putting the unfunded ideas in a category of officially disapproved ideas.

HEFFNER: But I have a question to ask you about that. Could you, Floyd Abrams, develop…would you even consider not necessarily guaranteed, but a fairly well-stated argument that would permit some degree of that choice? Just as you said, editors edit…could you?

ABRAMS: The…I don’t want to suggest that there aren’t a lot of votes on the Supreme Court…

HEFFNER: Wait a minute. I’m going to ask you about the Supreme Court later. But I’m asking whether if your assignment…if your client were the government or an agency that had…

ABRAMS: The only leeway I would give the government…

HEFFNER: Yeah…

ABRAMS: …is to make judgments based upon artistic excellence. And I would give them a good deal of leeway in doing it. I would understand that some of the very art which is controversial because some people believe it to be nearly obscene, or at least pornographic, would leave other people to use different language – that the language they would use is “That’s ugly”.

HEFFNER: I was just going to say “ugly”…unworthy?

ABRAMS: …and I don’t think that the courts can get much involved, or others can get much involved in second-guessing artistic judgments if they are, what should we say, rational…if they are genuinely artistic judgments. But where I do think you get into a First Amendment issue is when Senator Helms gets legislation passed which says that no funding is to this, this, this and that. Nothing.

HEFFNER: But could you write…could you write legislation that would pass muster with my friend Floyd Abrams? Not with the present Supreme Court…

ABRAMS: I could pass…Sure, I could write legislation that would pass muster with me, and I would understand that when I was writing it it could be misused…

HEFFNER: Mm Hmm…

ABRAMS: …by people in power to substitute political views for artistic ones. That’s the nature of the beast. That said, though, that’s not the end of the inquiry. Although it can be misused, what can we look to? We can look to public opinion to some extent. We can look to try to persuade people that if when it can be demonstrated, that what’s happening is that the government, having considerable power to decide what’s ugly and what’s beautiful; what’s artistically worthy and what’s artistically unworthy – if it happens (but it doesn’t really just happen) that they’re not funding artistic works, that Senator Helms disapproves, or that certain people disapprove, why then, back to court you go. Then there is again a serious First Amendment issue. There is no avoiding, in my view, the seriousness of that issue, regardless of how the courts would go.

HEFFNER: But then let’s go to the question that you raised a moment ago as to how the courts would go, or would they go? What indications are there now that properly – and forgive me for the use of the word – I’ll put quotation marks around it – cleverly devised legislation to achieve Senator Helms’ objectives, not at a gross, but refined way, could pass muster? What indications now, from what we’ve heard from them in the court, are in the majority in the court now?

ABRAMS: I think that if you drafted…if I drafted for you legislation which didn’t contain the sort of language in the current version, or last year’s version, but simply gave a good deal of discretion to the decision-makers to make artistic judgments based on the notions of quality, contribution, diversity, etc., that it would pass constitutional muster. Indeed, that would pass constitutional muster from everyone on the court. The difficulty now in the court is that there are probably a good many votes for the proposition that just about anything will pass muster, so long as not the most overtly stigmatizing sword of legislation…I mean, if Congress were to be dumb enough to pass a law saying, in effect, “Whereas we disapprove of activities which are not obscene, but sexually explicit, and we disapprove of public having access to works funded to any degree by the government, of people who are nude”, say, even this Supreme Court would strike that down in all probability, because that goes so far over the edge into government making not just content decisions, but decisions about what is not acceptable art. And the closer you get to sort of “official art”…

HEFFNER: Mmm.

ABRAMS: …in a Nazi sense – the closer you get there, the more even this Court, I think, seriously would listen to an argument that a statute is unconstitutional.

HEFFNER: But you say we don’t have to get all that close.

ABRAMS: We don’t. We don’t have to get that close at all. And indeed, where the Court is at now is saying, in effect, “Look, the government’s got power over spending, where it spends its money – and unless it spends its money in a way that sends a message of disapproval of the art it’s not funding, it’s going to probably proceed as before.

HEFFNER: You know, when the bill for establishing the corporation for broadcasting was introduced, I was a member of the Board of the ACLU then. I went down to testify for the ACLU. And we stated that we have very great qualms about entering, about government entering this area for fear of what might happen. And yet, we felt it was so important for there to be support for public broadcasting. We supported the bill. I remember Senator Hugh Scott…Richard Russell in the Senate was saying “Those damned Liberals in the North. They’re going to get hold of this medium and you’re going to find all kinds of political shenanigans”. And Senator Scott, the Liberal Republican, said “Don’t worry Senator. Each year they’ll come up before us for an appropriation”. It seemed to indicate that in all of this, who pays the piper calls the tune. Which leads me to wonder again what your prophecy is, what your prediction for the future is along these lines. I know what you want, and I know what you don’t want.

ABRAMS: I guess if I had to prophesize now, it would be that we’re likely to have ever-blander art funded, or supported, by federal monies, so as to stay out of trouble with Congress. And at least as long as we have the current administration in power, and quite possibly with any other administration, we may continue to move in a direction of saying, “Look the public pays the money, the public takes its choice. We in Congress are the public, or their representatives. We choose not to fund anything controversial. Go get your own money”. I think that’s the direction that we’re going in and the direction that the courts are going in, as being less responsive to First Amendment pleas in this area, as the courts are being less responsive to other Bill of Rights claims up and down the constitutional spectrum. So that’s the direction we’re moving in.

HEFFNER: We’re becoming more and more democratic, aren’t we? In a Jacksonian sense, in a majoritarian sense.

ABRAMS: In that sense, that’s true. We always become more democratic the more we move away from the Bill of Rights.

HEFFNER: Well, that’s chasing your tail there…

ABRAMS: Sure. The more we simply allow the Congress or the public to simply do what it wants, and at the same time, the less we impose the limits placed upon what the Congress can do by the Bill of Rights, the more majoritarian we are. Absolutely.

HEFFNER: And if you had to draw a line, would you say that with the end of the Twentieth Century, that it’s so removed from the Jeffersonianism of the Eighteenth Century and the Age of Democracy…that one can’t really anticipate or expect that the concerns for minority rights are going to prevail over majority rule, or even live with it…

ABRAMS: It could have happened. All that had to happen was that Hubert Humphrey had to be elected President in 1968. It’s not that all this had to be. We have elected presidents who have chosen members of the Supreme Court who, in general, share their views. That’s the way the system works. The public is free to vote for other people if the public wants to.

HEFFNER: Ah, that’s…

ABRAMS: Oh, sure. That’s true, but that doesn’t…

HEFFNER: …a chance, then…

ABRAMS: …But that doesn’t end it’s chance that a few votes here and there led to one group being in power or not, it’s chance that Arthur Goldberg left the Supreme Court when he did. A lot of things affected a lot of things. But with enough time passing, then it’s not chance. That’s true. If the years go by and we continue to elect conservative presidents, they continue to appoint conservative Supreme Court Justices, what we are choosing by doing that is less protection for the Bill of Rights.

HEFFNER: You know, we’re choosing program after program not to talk about Oliver Stone.

ABRAMS: (Laughter)

HEFFNER: That’s quite clear. And about the questions raised by his picture. Next time, Floyd Abrams, okay?

ABRAMS: Okay.

HEFFNER: Thanks. Thanks, too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program, please write: THE OPEN MIND, P.O. Box 7977, F.D.R. Station, New York, NY 10150. For transcripts, send $2.00 in check or money order.

Meanwhile, as another old friend used to say, “Good night and good luck”.

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