NEW YORK – The government can decide what artwork is worthwhile without being accused of censorship as long as it is funding that art, Supreme Court Justice Antonin Scalia (search) told an audience Thursday at the Juilliard School (search).
"The First Amendment (search) has not repealed the ancient rule of life, that he who pays the piper calls the tune," Scalia said.
The justice, who limited his discussion to art issues, said he wasn't suggesting that government stop funding the arts, but that if it does fund artwork, it is entitled to have a say in the content, just like when it runs a school system.
The high court and Scalia have weighed in on the issue before.
In the late 1980s, the National Endowment for the Arts (search) sparked a public and political uproar when it helped fund exhibits of photographer Robert Mapplethorpe's homoerotic images and a photograph by Andres Serrano of a crucifix immersed in urine.
Critics contended the NEA was financing obscenity, and Congress passed an arts-funding law in 1990 requiring public values be considered when handing out grants.
The Supreme Court upheld that law in 1998, ruling that the government need not subsidize art it considers indecent. Justice David H. Souter (search) was the only dissenter, saying the law was overbroad and had "a significant power to chill artistic production and display."
Scalia said Thursday he believes the government did not violate the First Amendment in the case of the Serrano photo — it did not pass any law to throw the "modern day DaVinci" into jail nor did it stop him from displaying his art, he said.
"I can truly understand the discomfort with government making artistic choices, but the only remedy is to get government out of funding," he told the audience.
Scalia said the Supreme Court has not done a very good job of framing a definition of obscenity, which the First Amendment does not protect.
"The line between protected pornography and unprotected obscenity lies between appealing to a good healthy interest in sex and appealing to a depraved interest, whatever that means," Scalia said in stating the court's position.
The result is that every small town in America must tolerate the existence of a porn shop, he said.