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Friday, September 23, 2005

Scalia on Art: The Government Knows It When It Sees It

Here is a short piece describing a recent talk by Justice Scalia at Juilliard, suggesting that government, in its role as arts funder, may engage in content selection and therefore discrimination.  "The First Amendment has not repealed the ancient rule of life, that he who pays the piper calls the tune," Scalia is quoted as saying.  He adds, in language paraphrased by the writer, that if government does fund artwork, "it is entitled to have a say in the content, just like when it runs a school system."

No great disagreement here.  But this article lends itself to two thoughts:  1) To the extent the Solomon Amendment case turns ultimately on government's role as speaker and funder, it certainly suggests the orientation of Scalia's vote on this case.  2) What relevance should this position have for Justice Scalia in cases involving public funding of religious programs, or public funding of non-religious activities carried out by religious groups?  Does this suggest Justice Scalia believes it is constitutional to impose conditions on such groups -- for instance, that no money flowing to such a group be spent on anything that may contain religious content, or that a religious group receiving government funds may engage in x religious speech but not y religious speech?  This is not a gotcha post; commenters are welcome to discuss the ways in which Justice Scalia is or is not consistent in his views on this point.  But I think it's an interesting subject for musing and discussion. 


Posted by Paul Horwitz on September 23, 2005 at 04:40 PM in Constitutional thoughts | Permalink


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Paul Horowitz puts forward an interesting question regarding Justice Scalia's views on governmental restrictions on speech that it is funding. Scalia first made his views on the subject known in National Endowment for the Arts v. Finley (524 U.S. ... [Read More]

Tracked on Sep 23, 2005 8:06:44 PM


I will merely repeat what I have already said at Althouse.

Firstly, I actually called Juilliard earlier today to ask if there is a transcript, and their information office says that there will be, but it is not yet available. You can contact them at communications at juilliard dot edu. My general thought would be that it would be best to wait until the full transcript is available before making irretractable statements.

However, human nature being what it is, people will do so. As I understood it, what Scalia was saying is that if the government is going to give money to artists, it has no more or less discretion as to which art or artists that it chooses to fund than a private organization which chooses to do the same. I think he also made the point that government really shouldn't regulate art, and because having government funding permits (and, in fact, requires) it to do exactly that, that government should get out of that business. If the government gives grants to artists, by necessity, it has to reject some applications and grant others. Therefore, as long as government is in the business of giving money to any art, and because it necessarily cannot give money to all art, government will be choosing which art to subsidize and what not to subsidize.

Lastly, I am inclined to delink Underneath Their Robes, because the headline of Article III Groupie's coverage of Scalia's speech forces upon the reader a mental picture of Our Hero which is frankly so terrifyingly ghastly that I am immediatley entering therapy.

Posted by: Simon | Sep 24, 2005 2:01:22 AM

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