In praise of censorship - government and the arts

Public Interest, Wntr, 1994 by Stanley C. Brubaker

The law of obscenity is a good example. The Court has consistently ruled that obscenity stands outside of First Amendment protection, and the reason for this is found in the Court's very definition of obscenity. Material is obscene, the Court has held, if taken as a whole and judged by contemporary community standards it appeals to a "prurient interest," is "patently offensive," and fails to make a significant contribution to literature, arts, politics, or science.

From the flat perspective of pure liberalism, unleavened by a republican concern with man's soul, this definition appears to contradict itself. It seems to hold that such material must simultaneously turn us on and gross us out. Liberalism's descendant, economic analysis, lacking the ability to distinguish the worth of preferences, would be similarly impatient: does the consumer want this material or not? But this rather contrived mystery vanishes from the more elevated perspective of republican government. Obscenity appeals to what is base in us, a prurient interest. In defining this as a shameful or morbid interest in sex, the Court acknowledges there are pleasures that debase us as individuals and make us unfit for self-government. Obscenity offends, patently, what is high in us. In this the Court affirms there are sensibilities that elevate us as individuals and render us fit for self-government. The classical republican element in this is apparent. But it is also liberal. In the tension between virtue and liberty, it leans quite substantially in favor of liberty. For one thing, there is no attempt here to coerce virtue, only to curb a bit of vice. For another, the definition recognizes that something may be obscene by the first two elements of the definition (appeal to prurient interest, and patently offensive) and yet make a significant contribution to the arts. If that is the case, it is constitutionally protected. What about restrictions on funding? In one sense this is an easier question, but it also involves a prior question. What's the constitutional basis for funding at all? The liberal tradition views with suspicion funding for the purpose of recognizing and cultivating man's soul. Further, the constitutional text itself warrants skepticism, for as noted above, its recognition of federal authority to further the "useful" arts indicates some doubt about its authority to promote the "fine" arts. Indeed, for the nation's first century and a half, it was seriously disputed whether the authority of the federal government to spend was limited to the enumerated powers of Article One, Section Eight or whether spending was permitted to advance a broader understanding of the "general welfare." Madison himself took the restricted interpretation, but the expansive understanding has of course prevailed. But if spending has not been confined to the enumerated powers, it has for the most part been limited to goods and services justified (plausibly or not) by economic arguments such as "public goods." To be sure, such arguments were put forward when federal funding of the arts was first considered. But the only plausible argument is that stated by the Eisenhower Commission on National Goals: The federal government should fund the arts, not to employ impoverished artists, or attract industry, or to win the cold war. The federal government should encourage the arts "as an expression of what is noblest in people's lives."