September 23, 2005

Art, sex, and Scalia.

Antonin Scalia gives a talk about law and art at the Juilliard School. One topic: the 1990 statute -- brought on by Mapplethorpe and the "Piss Christ" -- that required the NEA to take decency and values into account as it made its arts grants. Scalia's apt comment:
"I can truly understand the discomfort with government making artistic choices, but the only remedy is to get government out of funding."
Another topic was law and pornography, about which Scalia opined:
"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."
What is less sexy than Scalia, et al, deciding what is "a good healthy interest in sex"?

34 comments:

John said...

"What is less sexy than Scalia, et al, deciding what is "a good healthy interest in sex"?"

hmmm...Dr Ruth comes to mind.

Gerry said...

It doesn't sound like he's too keen on being in that role either...

BoneUSA said...

Let's take that seeming afterthought -- "whatever that means" -- and read it to mean that Scalia does not wish to determine what a good healthy interest in sex is.

Ann Althouse said...

Bone: I like to think it means that he's not personally keen on condemning sexual things.

gs said...

Dear Justice Scalia:

NEA grant applicants don't want the FBI Porn Squad breaking down their doors in the middle of the night. To illustrate what constitutes 'a good healthy interest in sex', please tell some dirty jokes.

Respectfully,

gs

Eddie said...

I am not sure that sex and Scalia should be in the same sentence. I guess it could have been worse, it could have been, "art, sex and Ginsberg."

Pastor_Jeff said...

What is less sexy than Scalia, et al, deciding what is "a good healthy interest in sex"?

Ruth Bader Ginsberg?
Danish government sex?

Be said...

Hey, I think that "...the only remedy is to get the government out of funding" is a pretty sexy statement. That whole government not deciding what's worthy of being funded or not / what's considered "degenerate" or not, etc is awfully free-spirited for someone of his stature and darn hot in my book.

Meade said...

I agree with Be. And good point, Eddie. This is an uncharacteristically mean post for Ann Althouse.

Pastor_Jeff said...

lmeade,

I also agree generally with Be and with Eddie. But what do you find mean-spirited about Ann's post?

Ann Althouse said...

Yeah, what's mean about it???

Bob Davies said...

What a wonderful comparison! Perhaps the only way to eliminate the discomfort of the government making "artistic choices" about people's sex lives is to get government out of the regulation of porn!!!

The government is capable of recognizing child porn and prosecuting it, thank goodness, but beyond that, they can't even define it.

downtownlad said...

Well I guess we now know how he's going to rule in FAIR v. Rumsfield.

Harkonnendog said...

Goldmember eating some skin while commenting upon one's "tight buns" is certainly less sexy.

Meade said...

Pastor Jeff and Ann Althouse:

Uncharacteristically mean of Ann to wryly single out a guy for aspects of himself he has no control over - in this case, Scalia and the tragic disabling void of sexiness he was born with.

Maven said...
This comment has been removed by a blog administrator.
Maven said...

Rust v. Sullivan, baby!

Ann Althouse said...

Lmeade: I'm a lawprof, so I can't write things like what do you mean? Nino is hot. Damned chilling effect.

smilerz said...

Bone: I like to think it means that he's not personally keen on condemning sexual things

Though he didn't mind letting government decide that sodomy could be condemned.

Ann Althouse said...

Smilerz: That's right. He defers to legislative choice. And if you watched the Roberts hearings, you should know that was the Democrats main theme.

Meade said...

Alright now, that really is too much information, Ann.

See if this warms you up. Reads almost like high class porn. I trust I won't need to bolden and underline:

(from Maven's link)We begin by pointing out the posture of the cases before us. Petitioners are challenging the facial validity of the regulations. Thus, we are concerned only with the question whether, on their face, the regulations are both authorized by the Act, and can be construed in such a manner that they can be applied to a set of individuals without infringing upon constitutionally protected rights. Petitioners face a heavy burden in seeking to have the regulations invalidated as facially unconstitutional. " A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [the regulations] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render [them] wholly invalid." United States v. Salerno, 481 U.S. 739, 745 (1987).

Gerry said...

smilerz,

Let me pose a quiz of sorts to you.

Let's say there is this guy, call him Gerry. Let's ascribe to him the following views: that he does not think federal judges are put in the position by the Constitution of making arbitrary distinctions over what is a 'good healthy interest in sex' and 'appealing to a depraved interest, whatever that means.' Let's ascribe to him the view that he is skeptical that the Constitution authorizes the federal government to be in the business of funding art, and ascribe to him the view that government in general would be wiser to be out of the business altogether and avoid discomforting issues over government making artistic choices.

Let's also ascribe to this fictional guy we will call Gerry the view that the 10th Amendment leaves matters over sodomy laws to the states.

Given the above, what is Gerry's opinion on sodomy laws? Does he think they are a good idea or a bad one?

Do you think he might find such laws to be uncommonly silly?

Ann Althouse said...

lmeade: LOL.

Simon said...

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.

I read a comment on some random blog ealier today that I wanted to rebut before it even gets mentioned here. A liberal blogger was responding to the NY Times' coverage of the speech, saying how terrible it was that Scalia was saying that government had a first amendment right to censor art (those weren't his exact words; he wasn't so polite). This seemed to me to be not only absurd on its face, but a complete misrepresentation of what Nino actually said. As I understood it, what Scalia was saying 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 or fund which chooses to do the same. And 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, means that government should get out of that business. I realize no one's brought this up here yet, but I'm being pre-emptive.

Of course, it's hard to tell exactly what Scalia was saying in the absence of a full transcript, and given that the NY Times is not exactly going to be a reliable and even-handed coverage of the Justice its editorial page has just spent two months wringing its hands in the hopes that John Roberts will not resemble. "Is the deck loaded? You bet."

One last thing, just because a lot of folks have raised it in the comments (including our gracious host, for that matter). It's true that Our Hero is a balding, slightly overweight, Italian-American heading into his 70s; not exactly Adonis, I'll grant you. But then, neither is Michael Moore, neither is Bill Clinton, and I can't think of any of the Democrats current cheerleaders who is. If your pin-up is Howard Dean, either you have a thing for middle-American hockey dads, or you need to ajust your prescription. ;) Granted, I'm in a minority of one insofar as I think that Hillary Clinton has actually become very attractive in middle age, but I doubt that it's her looks that make Democrats willing to forgive her for anything.

Gerry said...

"I realize no one's brought this up here yet"

I pre-empted your pre-emption by a post since you were taking the time to be much more thorough than me!

OddD said...

Hey, a little respect for those of us with black robe fetishes.

Be said...

I'm at a considerable disadvantage compared to just about everyone here law opinion-wise, but I do have to say that Scalia's got a couple things going for him (aside from his being an older, Mediterranean sort). First, what's impressed me about him has been what I interpret as a strong interest in an individual's privacy rights. Second has been an an incredible wit/dry humor. I actually enjoy reading his decisions on cases even if I have no objective interest in them.

I guess that what I have to say is I probably trust him with more decisions regarding my own personal freedoms (in artistic/expression freedom, sex - not just behind closed doors with my partner, but in a hospital setting, etc) than a lot of others who claim to be looking out for my demographic's interests (whatever they may be). Maybe I'm naive, I don't know. But that's the feeling I get.

Lmeade: that bit you posted may have been meant for other eyes, but gosh darnit, it sure made me blush.

Simon said...

Oddd:
Hey, a little respect for those of us with black robe fetishes.

Hey - welcome to Althouse, Article III Groupie!! ;)

(I would just like to note, incidentally, that I couldn't remember the URL of the blog I just linked to, so I had to go click on the link in my Blogroll, only to be confronted with the actual Article III Groupie's headline on the Scalia Juilliard story - and because it's too horrific a thought to reproduce on a respectable blog like Ann's, I will merely link to it - click at your own risk of horrendous mental pictures evoked!).

mcg said...

First, what's impressed me about him has been what I interpret as a strong interest in an individual's privacy rights.

Be, I'm not sure how you see this. I mean, he did dissent from Lawrence v. Texas, you know (the sodomy case). As far as I understand him, he does not see a "right to individual privacy" in the Constitution, at least in the way people typically think of it. (Nor do I, but my opinion doesn't affect law :))

So while he may indeed have a strong personal interest in individual privacy, and were he a legislator he would likely favor laws that protected it: but he is not.

And nor should he be, in my opinion. It was not the Court's business to toss out Lawrence v. Texas; the Texas legislature should have had the cojones to repeal that outdated sodomy law.

Simon said...

[H]e does not see a "right to individual privacy" in the Constitution

He doesn't see a general right to privacy, in the sense suggested by Griswold - because it isn't there. Justice Douglas argued that the enumeration of specific privacy rights implied a general right to privacy; I would argue - and I think Scalia would also argue - that the enumeration of specific privacy rights explicitly denies a general right to privacy; if the first Congress had meant "you have a general right to privacy", they would probably have said so, instead of spreading vague hints of it across nearly a half-dozen separate amendments.

Eli Blake said...

The NEA funds tens of thousands of exhibits each year. It is easy to find the most extreme example one can think of (and the Mappethorpe exhibit is about a decade old, at that) but the fact is that out of the number of pieces of art that they fund, I think their record at not funding controversial exhibits is pretty good.

And for people who support censorhip, I have a suggestion (and an amazingly libertarian one at that): If you don't like it, then don't look at it!

Simon said...

Eli,
That's all well and good. But - and this, I think, is Scalia's point - 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. Other than merit - which necessarily involves a judgement call - what alternative criterion do you offer for determing who gets the money and who doesn't?

Chris said...

That would be a valid suggestion if people weren't being coerced into paying for it, through the government.

The controversy is not that they people who don't like the art have to look at it, it's that they have to pay for it, and it's easy to see how that can make people angry. Even more angry than merely having the art exist.

Scalia's point stands though, if the taxpayers are paying for it, then the taxpayers have a right to demand that it conform to their standards.

It is not censorship is the person paying decides not to pay for things they don't agree with. In this case it is the government paying, so if a majority of the taxpayers disagree with it, they can decide through their representatives to not pay for it. It's not censorship, it is no different than choosing not to subscribe to the playboy channel or something. Just on a much larger scale.

Menlo Bob said...

As someone who has been the beneficiary of a National Endowment for the Arts Artist Fellowship (since discontinued) I too find it puzzling why I should be given money to do what I would do for nothing. Scalia has it right.