Karen Finley is a “performance artist.” Her performances are succinctly described by Judge Robert Bork in his new book Slouching Towards Gomorrah: “Before an audience, [Finley] would strip to the waist, smear her body with chocolate (to represent excrement) and sprouts (sperm), and wail about what men have done to women.” According to a recent decision by the California- based Ninth Circuit Court of Appeals —the former court of the apostate Justice Kennedy—Finley’s First Amendment right to free speech was violated when the National Endowment for the Arts (NEA) turned her down for a grant. Clearly, First Amendment jurisprudence has departed from the realm of reason.
In response to the NEA’s support of Robert Mapplethorpe’s pornographic photographs and Andres Serrano’s blasphemous “Piss Christ,” Congress amended a statute to require that the NEA “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public” when making grants. The Ninth Circuit’s opinion, which along with the district court’s opinion decorously eschewed a description of Finley’s performance (would such a description have been indecent?), said that this standard was, under the First Amendment, an impermissible content-based restriction. The fact that Finley’s right to free speech was not in the least abridged—the NEA simply refused to force the taxpayers to subsidize it—failed to make any difference to this majority of what Judge Bork has called “First Amendment voluptuaries.”
In his dissent, Judge Andrew Kleinfeld has no difficulty demolishing the majority’s embarrassing incoherence. “We now live in a legal context prohibiting display of a cross or menorah on government property,” he noted. “But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans.” He wryly added: “This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.” Judge Kleinfeld explained to the majority a proposition with which any first-year law student is familiar: “First Amendment law protects individual liberty from government, not the government from the people.”
Of course, Finley is not a constitutional aberration, especially by Ninth Circuit standards. In Compassion in Dying v. Washington, for example, the Ninth Circuit, with a brazen lawlessness and abuse of the historical evidence that might surprise even Justice Brennan, invented a hitherto unknown right to physician-assisted suicide. This right was promulgated over another fine dissent by Judge Kleinfeld in which he pointed out a fundamental error in the approach in both Compassion in Dying and Finley. Judge Kleinfeld, who was appointed to the Ninth Circuit in 1991 by President Bush (Bush’s other appointment: Clarence Thomas), observed that the “Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary. . . . That an issue is important does not mean that the people, through their democratically elected representatives, do not have the power to decide it. One might suppose that the general rule in a democratic republic would be the opposite, with a few exceptions.” This is a sound understanding of our constitutional system, and in its witting renunciation of this understanding the Ninth Circuit subverts the document that it purports to construe. This point is particularly true with respect to the author of the lunatic majority opinion in Compassion in Dying, Judge Stephen Reinhardt, who specializes in results-driven, make-it-up-as-you-go-along jurisprudence.
What can be done about such abuses? The appointment of more jurists like Judge Kleinfeld is critical, but that is impossible with President Clinton in the White House. The main thing at this point is to make sure that these decisions are recognized for the arrogation of power by the judiciary that they plainly are. In the short term, the most obvious way to eliminate the problem presented by the Finley case is to enact what many conservatives have advocated: the abolition of the NEA and the removal of the government from the art-subsidy business altogether. And in order to salvage what little is left of intelligible constitutional law, perhaps we should also abolish the Ninth Circuit Court of Appeals.