ART LAW

ART LAW

The Framers of the Constitution acknowledged the importance of the arts when they wrote that Congress shall have the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Art. I, § 8). Despite this provision, or perhaps because of its very limited nature, the federal government offered little assistance to artists until the 1930s. Early unsuccessful attempts to aid the arts included an effort by President JAMES BUCHANAN to establish the National Commission of Fine Arts, a project that failed within a year when Congress did notappropriate funds. President THEODORE ROOSEVELT also encountered a reluctant Congress half a century later when he proposed the Council of Fine Arts, but success came when his successor, WILLIAM HOWARD TAFT, persuaded Congress to create the National Commission of Fine Arts.

Even after the National Commission of Fine
Arts was established, the federal government
continued to play a minor role in funding the
arts, but several municipal programs attempted
to fill the void. In New York City, the Civil Works
Administration (CWA) sponsored paintings,
murals, and art education. The primary goal of
the CWA was to create employment for artists
receiving government relief. With the only
requirement for employment being an assertion
that the applicant was an artist, the art produced
under the CWA was often the work of unskilled
amateurs.
Federal funding for the arts took off during
the Great Depression with the creation of the
Federal Art Project, a branch of the Works
Progress Administration (WPA). The Federal
Art Project was modeled on some of the earlier
municipal attempts but avoided their problems
by emphasizing the production of works of
high technical competence, utilizing defined
hiring guidelines, and encouraging creativity
and experimentation. The Federal Art Project
paid a security wage, an amount that was calcu-
lated to fall between the prevailing wage and
the relief grants of the region involved and was
graduated according to skill level. The WPA
spent $35 million on the Federal Art Project
and supported the production of approxi-
mately 1,500 murals, 18,800 sculptures, and
108,000 paintings as well as other works of art.
The onset of WORLD WAR II effectively ended
the WPA.

In the COLD WAR era following World War II,
the federal government funded cultural
exchanges to promote diplomatic ends. The
major cultural institutions were located primarily
in large cities, such as New York, Los Angeles,
Chicago, and Boston. In 1965, only five state arts
agencies existed. The quality of performances
and exhibitions was inconsistent, and support
for the best art depended on the discretion and
charity of a few patrons. As a result, opportunities
for artists were limited, and rural audiences
had few chances to see the best productions or
visit outstanding exhibitions.

In the mid-1990s, federal financial support
for the arts and humanities was provided
through several distinct agencies: the National
Commission of Fine Arts, the National Endowment
for the Arts (NEA), and the National
Endowment for the Humanities (NEH). The
Commission of Fine Arts, established in 1910,
advises the president, Congress, and government
department heads on matters of architecture,
sculpture, painting, and other fine arts. The
commission’s primary function is to preserve
and enhance the appearance of the nation’s capital,
Washington, D.C. (40 U.S.C.A. § 104
[1986]).
The National Foundation for the Arts and
Humanities Act of 1965 (20 U.S.C.A. §§
951–968 [West Supp. 1990]) established the
NEA and the NEH. The NEA provides grants
to, or contracts with, groups and individuals of
exceptional talent, and state or regional organizations
engaged in or concerned with the arts.
NEA programs encourage individual and
institutional development of the arts, preservation
of the American artistic heritage, wider
availability of the arts, leadership in the arts,
and the stimulation of nonfederal sources of
support for the nation’s artistic activities. The
goal of the NEA is not to provide employment,
as the WPA did, but rather to make the arts
more widely available to U.S. citizens, to preserve
the nation’s rich cultural heritage, and to
encourage the creative development of the
nation’s finest artistic talent. By 2003 the NEA
had made more than 120,000 grants for theater,
dance, symphonic music, painting, and
poetry.

As a major financier of the arts, the NEA
has been a significant influence on much of the
publicly exhibited art in the United States. For
many years, it led a quiet administrative existence,
and, although it was a force in the artistic
community, the general public knew little
about it. In late 1989, however, the organization
became the center of controversy when
some members of Congress questioned
whether some works of art and performances
funded by the NEA were obscene. The NEA
had provided funding for exhibits featuring
the works of artists including Robert Mapplethorpe
and Andres Serrano. Mapplethorpe’s
exhibit included sexually explicit
photographs of men, and Serrano’s exhibit
included a jar of urine into which a photograph
of a crucifix had been placed. The
uproar from the public, and from members of
Congress, was so strong that in 1990 Congress
enacted a law that required the NEA to take
into consideration “general standards of
decency and respect for the diverse beliefs and
values of the American public.” This became
known as the decency test.
Over the next several years other controversial
grants were awarded and challenged, culminating
in a case that went to the U.S. Supreme
Court. The case, National Endowment for the
Arts v. Finley 524 U.S. 569, 118 S. Ct. 2168, 141
L.Ed. 2d 500 (1998), was brought by four artists
including Karen Finley. Finley became infamous
for a performance art piece in which she would
remove her clothing and smear chocolate on her
body. The work, she explained, symbolized the
way women were exploited in society. Finley and
her fellow plaintiffs argued that the 1990 statute
was unconstitutional and that the decency test
was a violation of the rights of free speech and
due process.
A district court agreed and the U.S. Court of
Appeals upheld the district court’s decision in
1996 100 F. 3d 671 (9th Cir.) In 1998 the
Supreme Court ruled 8 to 1 that the law was
constitutional, and that it violated no rights.
Grant-seekers, the court noted, were required to
submit their proposals to a panel representing
diverse points of view; as such, the risk that an
ARBITRARY ruling of indecency would be
reached was minimal. In his dissent, however,
Justice DAVID H. SOUTER warned that the law
could force artists to censor their own work to
ensure that it would not offend anyone in a position
to approve a grant.
The NEH funds activities are designed to
improve the quality of education and teaching
in the humanities, strengthen the scholarly
foundation for humanities study and research,
and advance understanding of the humanities
among general audiences. The NEH provides
support through outright grants, matching
grants, and a combination of the two. Schools,
higher education institutions, libraries, museums,
historical organizations, professional
associations, other cultural institutions, and
individuals are eligible to apply for NEH
grants.
One avenue members of Congress use to
support the arts is the Congressional Arts Caucus.
This bipartisan group, composed of nearly
250 members of Congress who recognize and
support the arts, acts as an information clearinghouse
on arts issues. The caucus reports on
legislation affecting artists and arts institutions,
both commercial and nonprofit. It helps members
of Congress prepare testimony and
speeches on the arts.
The government also provides indirect aid
designed to create a heightened public awareness
of art and to provide artists with new outlets
for their work.Among the effective means of
indirect aid are the regulations adopted by many
state and municipal governments, which require
a percentage of the cost of building new government
structures to be spent on art.
Federal, state, and local governments indirectly
promote a heightened public awareness
of the arts in the community through ZONING.
Zoning laws divide a city into districts and set
forth the types of structural and architectural
designs of buildings in those districts, and the
uses that buildings may serve. Some zoning
regulations and laws are designed to preserve
the aesthetic features or values of an area. As of
2003, most state courts allowed the use of zoning
laws for solely aesthetic purposes. These
laws may, for example, restrict the placement
of billboards or television satellite dishes or
may require that junkyards be screened or
fenced.
State and local governments have become
involved in improving the appearance of publicly
funded buildings, or any building built on
public land, by requiring that new building
designs and locations be approved by the local
government. Local control over design was held
constitutional in Walnut & Quince Streets Corp.
v. Mills, 303 Pa. 25, 154 A. 29, appeal dismissed, 284 U.S. 573, 52 S. Ct. 16, 76 L. Ed 498 (1931). In
Walnut & Quince Streets, a municipal arts panel
refused to permit a theater owner to construct a
large marquee extending over the sidewalk. The
owner unsuccessfully argued that a local statute
permitted the jury to act in an arbitrary fashion
that deprived him of DUE PROCESS OF LAW and,
furthermore, that the legislature did not have
the authority to regulate aesthetics and thus
could not delegate such authority to an “arts
jury.” The court upheld the statute as a legitimate
legislative regulation of public property.
Many governments have enacted statutes
and regulations prohibiting the destruction and
alteration of historic landmarks. Landmark
preservation laws indirectly aid the arts by
increasing the public’s awareness of the need for
beautification and for preserving the work of
past generations of artists. The earliest efforts to
preserve the nation’s heritage focused on particular
buildings or national monuments. The
application of historic preservation laws to limit
a property owner’s right to her or his property
was declared constitutional in Penn Central
Transportation Co. v. New York City, 438 U.S.
104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). In
Penn Central, the U.S. Supreme Court held that
the New City Landmarks Preservation Commission’s
failure to approve plans for construction
of a 50-story office building over Grand Central
Terminal, a designated landmark, was not an
unconstitutional taking of property.
Historic preservation law is an active and
expansive area of zoning and planning law.
According to the National Trust for Historic
Preservation, over 1,700 communities have
enacted preservation laws. Federal efforts to
encourage preservation include the enactment
of laws providing some tax credits for the protection
and restoration of old buildings (26
U.S.C.A. § 48 (g)(3)(A) [1986]) and for the protection
of archaeological sites (16 U.S.C.A. §
461[1986]).
FURTHER READINGS
Brenson, Michael. 2001. Visionaries and Outcasts: The NEA,
Congress, and the Place of the Visual Artist in America.
New York: New Press.
Ellickson, Robert C., and A. Dan Tarlock. 1981. Land-Use
Controls: Cases and Materials. Boston: Little, Brown.
Frohnmayer, John E. 1992. “A Litany of Taboo.” Kansas Journal
of Law and Public Policy 2 (spring).
Hulbert, Dan. 1998. “High Court Upholds NEA Decency
Standards.” Atlanta Journal-Constitution (June 26).
Rathkopf, Charles A. Rathkopf ’s Law of Zoning and Planning.
4th ed. New York: Clark Boardman Callaghan.
U.S. Congress. Congressional Arts Caucus. Serial 20515.
CROSS-REFERENCES
Helms, Jesse Alexander, Jr.; Land-Use Control; Zoning.