NUDE DESCENDING A STAIRCASE AT THE NATIONAL ENDOWMENT FOR THE ARTS: A LEGAL ANATOMY OF KAREN FINLEY'S CONSTITUTIONAL CHALLENGE Michael Angelo Tata

NUDE DESCENDING A STAIRCASE AT THE NATIONAL ENDOWMENT
FOR THE ARTS: A LEGAL ANATOMY OF KAREN FINLEY’S

CONSTITUTIONAL CHALLENGE
Michael Angelo Tata
Belin | « Revue française d’études américaines »
2022/2 N° 171 | pages 40 à 56

ISSN 0397-7870
ISBN 9782410025705
DOI 10.3917/rfea.171.0040
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Nude Descending a Staircase

at the National Endowment
for the Arts: A Legal Anatomy
of Karen Finley’s Constitutional
Challenge
MICHAEL ANGELO TATA
Keywords En 1990, le scandale des « NEA Four » a mis au centre

de l’arène juridique la nudité dans les arts au cours d’un
NEA Four; Sandra Day procès qui a fini par être entendu par la Cour Suprême des
O’Connor; Ruth Bader États-Unis. Lors de ce procès, Karen Finley et les trois autres
Ginsburg; Antonin
plaignants ont remis en cause l’Amendement Williams.
Scalia; Williams/
Coleman et demandé qu’il soit abrogé en argumentant qu’il
Coleman Amendment;
Karen Finley; NEA;
était anticonstitutionnel prima facie. Cet amendement avait
National Endowment
ajouté un critère moral, fondé sur la société civile, aux
for the Arts; facial demandes de bourses individuelles déposées auprès de
challenge; excellence; l’agence fédérale pour le financement des arts (NEA), et a,
arete; patronage; par la suite, entraîné l’annulation des prix obtenus par Finley
totalitarian democracy et ses co-plaignants car leurs spectacles ont été jugés « indé-
cents » par l’administration fédérale. Finley a perdu son
recours à la Cour Suprême. Sandra Day O’Connor a rédigé
l’opinion majoritaire, et a été rejointe par Ruth Bader Gins-
burg pourtant souvent considérée comme une alliée poten-
tielle, voire une représentante, de la cause féministe. Seul le
juge Souter a formulé une opinion minoritaire. O’Connor a
soutenu que dans la mesure où toutes les bourses sont compé-
titives et s’appuient sur un critère d’excellence, il n’était pas
inapproprié d’avoir des critères secondaires supplémentaires
qu’ils soient moraux ou autres. Souter n’a pas considéré
a priori que le critère d’excellence permettait de remettre en
cause l’interdiction de critères secondaires et a conclu en
faveur de l’abrogation de l’amendement prima facie. Éton-
namment, c’est le juge Scalia qui dans sa confirmation de
l’opinion majoritaire a rendu le plus justice à la dimension
artistique des œuvres d’arts. En effet, il est le seul juge de la
Cour Suprême à s’être intéressé au contenu des spectacles
ou à avoir fait preuve de connaissances sur les questions
esthétiques, jouant ainsi le rôle improbable de l’anti-héros
dans cette saga judiciaire.
40 No 171
A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE
“Progress for the sake of progress must be discouraged. Let us preserve what must be
preserved, perfect what can be perfected and prune practices that ought to be
prohibited.”
Dolores Umbridge, Harry Potter and the Order of the Phoenix
(David Yates, Warner Bros, 2007)
Introduction: Nudity and the End of Art

In June 1990, performance artists Karen Finley, Tim Miller, Holly
Hughes and John Fleck found themselves turned down for National
Endowment for the Arts (“NEA”) grants because the NEA deemed their
work indecent. Specifically, the NEA determined that their art violated
the recently enacted decency clause of the 1990 Williams/Coleman
Amendment, 20 U.S.C. § 954(d)(1). 1 This supplemental legislation
allowed moral considerations of the work submitted by aspiring grantees
to be taken into consideration. Congress enacted Williams/Coleman in
the wake of funding scandals surrounding work by photographers Robert
Mapplethorpe and Andres Serrano, whose iconography elicited the ire of
outspoken conservatives like North Carolina senator Jesse Helms (Finley
508). 2 The amendment spoke to his rancor, allowing government officials
to consider “general standards of decency and respect” when making award
determinations, yet was a tamer solution than other proposed amendments,
which would have been more restrictive (Finley 576). Seen in light of James
Davison Hunter’s influential Culture Wars: The Struggle to Define America,
this fledgling amendment spoke to building rancor between progressives
and orthodox Christians, something the Mapplethorpe and Serrano
debates crystallized, and a tension Finley and her fellow artists would be
forced to confront. For though the four artists had been given awards before
passage of the amendment, its incorporation into § 954 suddenly—even
belatedly—caused their work to be re-examined in light of decency, and the
NEA subsequently revoked their prizes (Finley 577).
In National Endowment for the Arts v. Finley (1998), the four per-
formance artists sued to have the amendment overturned as unconstitu-
tional. They initially won their case in 1993, at the District Court level.
The NEA settled, giving each artist the sum denied, while the Court
allowed their challenge of Williams/Coleman, which was “impermissibly
overbroad on its face,” to move forward (Finley 578). The Appeals Court
upheld their victory, finding the amendment “void for vagueness” (Finley
1. In his article “Frohnmayer Denies ‘NEA 4’ Grant Appeals: Arts Funding,” arts
journalist Allan Parachini alleges that the NEA denied Miller’s application because it was
incomplete; a letter of recommendation by Peter Sellars had never made it into his file.
2. National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).
Revue Française d’Études Américaines 41

MICHAEL ANGELO TATA
579). The NEA then petitioned the United States Supreme Court
(“SCOTUS”) for certiorari. 3 The Court granted their request, taking the
case for review. In 1998, SCOTUS ultimately ruled that the government
agency’s decision to deny funding for art deemed to be indecent was in
keeping with the Constitution: the decency clause was neither vague nor
facially unconstitutional, both of which would have been fatal to it. 4
Sandra Day O’Connor wrote the majority opinion, and Ruth Bader Gins-
burg joined; the ruling was 8-1, with only Justice Souter dissenting. Jus-
tice Scalia wrote a concurrence, to which Justice Thomas joined.
The divergence in their opinions is the object of this essay’s “anat-
omy,” by which the author means to dissect these Justices’ individual
responses to the artworks in question and to place them in resonance
with one another, albeit via a “cubist” lens through which legal geome-
tries emerge (hence the title’s reference to the controversial cubist paint-
ing, Marcel Duchamp’s Nude Descending a Staircase, 1912). Because
O’Connor focused almost entirely on the notion of “excellence” in the
assessment of artworks, she was able to side-step the First Amendment
issue, ignoring the sensuous surfaces of the performances entirely. At the
opposite pole, Judge Souter penned a dissent that underscored the dan-
gers of majoritarian mathematics hearkening back to critiques of Rous-
seau as fostering totalitarian democracy, as J.L. Talmon proposes in his
Origins of Totalitarian Democracy. Finally, while Judge Scalia, an origi-
nalist behemoth, paid proper attention to the physicality of the perform-
ances in his concurrence, he arrived at a conclusion that did not do them
justice because it ignored the aesthetics of identity. 5
Before these disparate opinions make sense for readers who are not
necessarily legal scholars, it is imperative that the author provide a history
of relevant Constitutional case law within a First Amendment context.
Even though O’Connor circumvents the First Amendment through her
crafty focus on the inescapable subjectivity of excellence, her path makes
little sense in the absence of a deeper case discussion. The author has
3. When anyone, even a government agency or the President, wants a case to be heard,
it must petition SCOTUS to take the case via a granting of certiorari.
4. In the United States, any law which is so vague as to be functionally indeterminate
typically fails, as exemplified by the two portions of the Communications Decency Act
successfully challenged in Reno v ACLU (1997).
5. “Originalism” refers to the legal philosophy that the Constitution and its Amend-
ments be interpreted in their original context and not be read in light of modern social
developments. One originalist hot spot is the Second Amendment (the right to bear arms).
Jonathan O’Neill’s Originalism in American Law and Politics: A Constitutional History
provides a detailed history of the movement.
42 No 171
culled the essential cases that have shaped First Amendment jurispru-
dence from the traditional Constitutional casebooks, but also from more
detailed studies, like Randall P. Bezanson’s Art and Freedom of Speech.
Because the American system is founded upon case law via the doctrine
of stare decisis, a word like “obscenity” in a statute only obtains meaning
as it has been applied in individual cases, which in the end must gel. 6
Therefore, a case law itinerary is the only way to ground deeper philo-
sophical inquiries into the various judicial logics at play in Finley.
However, because the author is a postmodernist, there will be multidisci-
plinary thinking peppered throughout the analysis, all in the name of
Derridean play. The author does not examine a broader Foucauldian
history of sexual oppression in the modern West, nor does he look to
self-imposed industry regulations, like Hollywood’s Hays Code (1934-68),
or to a ban, like the Comstock Law of 1873: none of these scenarios
speak to the specifics of the donor-grantee situation, so much more
nuanced than industry skittishness or a flat legal taboo.
Of the four plaintiffs in the case, Karen Finley engaged nudity at
the deepest level; therefore, she will be the focus of this essay, which takes
the stance that nudity occupies a constitutional aporia that can only be
the site of a teeter-tottering ambivalence. Famous for a piece like her
iconic Return of the Chocolate-smeared Woman (1998), she placed the
female body on display for a male paraphilic gaze, taking the odalisque
in Manet’s Le Déjeuner sur L’Herbe (1863) and turning her into a torqued
object of fantasy. C. Carr describes her art in “Unspeakable Practices,
Unnatural Acts” as “obscenity in its purest form” (121) in which “[d]esire
attaches to disgust” (130). Finley’s obscene engagement of nudity had a
strange result, legally: after she and her co-plaintiffs lost, the NEA largely
decided to stop funding individual artists and instead focus on institu-
tions, making the case a critical inflection point. Though Williams/Cole-
man is still “good law” today, its force has hence diminished. 7 It was
almost as if Slavoj Zizek’s observation that Courbet’s L’Origine du Monde
(1866) had effectively ended art with its raw nudity had finally come to
fruition: only within the realm of the law, that bizarre, Kafkaesque lan-
guage-game that dominates all others.
6. Cornell Law School’s Legal Information Institute boils down stare decisis—Latin
for “to stand by things decided”—as the precedent doctrine. Cornell Law School Legal
Information Institute, Stare Decisis, https://www.law.cornell.edu/wex/stare_decisis.
7. For example, racially contentious trademark case Matal v. Tam (2017) cites Finley,
distinguishing it from Matal.

MICHAEL ANGELO TATA
Nudity’s Slippery Middle Ground: Indecency

In American Constitutional jurisprudence, nudity has been treated
within the caselaw on obscenity, even though the two are not identical:
cases indicate that the threat of the unclothed body instantly places it in
some potential relationship to the lurid. Some nudity is never acceptable,
as with the case of child pornography. New York v. Ferber (1982)
announced this point in a ruling that salacious child nudity categorically
fell outside the protection of the First Amendment, even when its content
was sexual, but not obscene. Because the government possessed a compel-
ling interest in protecting minors from sexual abuse, it was in keeping
with the Constitution to deem a class of expression taboo. Ashcroft v. Free
Speech Coalition (1996) muddied these waters, holding that simulated
child pornography could not be banned even when obscene because it
involved no live child participants. While nudity does not always devolve
to pornography, the danger is ever present, and the law is normally a few
paces behind technology, which pushes pornography into new arenas,
necessitating code like the ill-fated Child Online Protection Act of 1998
(“COPA”), which the Supreme Court struck down in favor of less restrict-
ive alternatives, like filtering, under Ashcroft v. American Civil Liberties
Union (2002). 8
Attitudes toward adult nudity are even more ambivalent regarding
obscenity. The 1971 movie Carnal Knowledge culminated in a critical
Supreme Court challenge to its decency on the grounds of nudity. In
Jenkins v. Georgia (1974), SCOTUS ruled that, though nudity received
First Amendment protection, the film did not veer toward obscenity, and
hence could not be banned, as the nudity was not “patently offensive”
(Jenkins 161). Jenkins relied on a new obscenity standard laid out in land-
mark pornography mailer case Miller v. California (1973). Miller set forth
three criteria for determining what constitutes unprotected obscenity.
Material is obscene when (1) average Americans applying contemporary
community standards would find that the work in question appeals to
prurient interests; (2) the work offensively depicts or describes sexual con-
duct or excretory functions; and (3) the work lacks other merit (literary,
scientific, artistic, political, etc.). The Miller standard holds to this day.
In fact, the Miller test was the very legal mechanism used in photog-
rapher Robert Mapplethorpe’s posthumous obscenity case, Cincinnati
8. American Criminal Law follows the Legality Principle, which states that one must
be on notice that one’s behavior might be criminal in order to be prosecuted. In Common-
wealth v. Mochan (1955), because there was as yet no statute against obscene phone calls,
a litigant argued that the dirty calls he had been placing were not illegal because there was
no rule against them.
44 No 171
v. Cincinnati Contemporary Arts Center (1990). The Miller test’s essence

is that there has to be some value to the nudity: aesthetic, medical, politi-
cal or other. Mapplethorpe’s art failed the test; the Ohio court ruled that
his work was not obscene, despite its overt sadomasochistic content. In
particular, the city of Cincinnati had challenged seven photographs from
Mapplethorpe’s retrospective show The Perfect Moment, an exhibit
scheduled to run under the directorship of Dennis Barrie. The court iso-
lated two images of children from five images of adult males in various
S/M situations, ruling that the Ferber standard of deeming all child por-
nography as illegal did not apply to these children’s images because
though they involved nudity, they were not obscene (Cincinnati 20). While
the case did proceed for the five adult images from what the curator had
labeled the X and Z Portfolios, they, too, failed the Miller test, exonerat-
ing Barrie and giving sexual minorities the hope that they could continue
to push the limits of artistic expression in a way that involved the articula-
tion of their identities.
Performance artist Karen Finley’s Supreme Court case resulting
from the NEA’s decision to rescind her grant took nudity in a different
direction. In her case the issue being determined was whether a govern-
ment agency could decide to fund a work of art in light of its offensive-
ness, without running afoul of the First Amendment. Finley’s case
involved nudity, and in the end O’Connor’s majority opinion pronounced
that, indeed, a government agency can exercise its discretion in refusing
to award money to artists it deems indecent, though talented. 9 Finley and
her co-plaintiffs believed the rescinding of their funds to be unconstitu-
tional, something that to this day haunts at least Hughes as a breach of
sisterhood, which she continues to share on her social media: “Ginsburg
was vile, as big a disappointment as any of them, but that’s another
story.” 10 Though arguably polemical and not academic, Hughes’ words
are important in that they give voice to the emotional content of the law,
something legal scholars like Tess Wilkinson-Ryan and David A. Hoff-
man have examined in their work on what “breach” feels like in the con-
text of Contract Law. What it feels like to be the object of a ruling
matters: something this author has argued in work hoping to inaugurate
a Law and Psychoanalysis discussion.
In general, the grey area established by Miller helped carve out a
space for certain kinds of obscene speech that are culturally significant,
9. Ginsburg joined the majority opinion for all portions but II-B, which dealt with
viewpoint discrimination in the context of funding decisions.
10. Holly Hughes Facebook Post, June 11, 2018.

MICHAEL ANGELO TATA
a mentality originating in Judge John Woolsey’s forward-thinking opin-

ion in United States v. One Book Called Ulysses (1933), a District Court
decision ruling that James Joyce’s novel Ulysses was not obscene and thus
could not be banned. For modern art is rooted in an opposition between
the avant-garde and the mainstream, with Finley being the postmodern
outpost of this constitutive dissonance. Given its centering on the female
body, this opposition comes to bear a decidedly feminist flair for Finley,
a point that Dolan has emphasized in her “Fathom Languages: Feminist
Performance Theory, Pedagogy and Practice.” 11 Legal skirmishes are
thus inevitable for a feminist performer operating at the fringes of desire
in the United States. 12
Because of the proximity between nudity and obscenity, American
courts have attempted to insulate nudity—protectable expressive speech
form Jenkins onward—from American culture. The spaces where nudity
proliferates, like strip clubs, can be subjected to time, place and manner
restrictions, as demonstrated by both Paris Adult Theatre I v. Slaton
(1972) and City of Renton v. Playtime Theatres, Inc. (1986). Further,
though nudity itself cannot be made illegal within certain spaces, its “sec-
ondary effects” may warrant further restrictions: for example, consequen-
ces like the weakening of the morality of surrounding neighborhoods may
be taken into consideration in free speech analysis. Young v. American
Mini Theatres, Inc. (1976) highlighted the fact that, though the primary
effects of nudity fall within the protective penumbra of the First Amend-
ment, more distant and far-reaching effects can culminate in a constitu-
tionally valid regulation of nudity. This back-and-forth dialogue has
made purveyors of nudity self-identify as unlikely Constitutional warriors
in Hunter’s culture war: hence the “Your First Amendment Headquar-
ters” sign placed outside Ohio strip club Kandyland after SCOTUS,
through another O’Connor opinion, ruled that the erotic expressivity of
dancers would not be impaired in any cognizable way if they were forced
to wear pasties and G-strings and thus not be fully naked (City of Erie
v. Pap’s A.M. 294, 2000). As these cases demonstrate, nudity is a deeply
ambivalent pulsation that can only be subject to legal and cultural fluc-
tuations.
11. Jill Dolan’s work prefaces Carol Martin’s synoptic A Sourcebook of Feminist Thea-
tre: On and Beyond the Stage. Her volume also includes Finley’s text “The Constant State
of Desire.”
12. Carr reports European friction over Finley’s work as well, when performing as a
Kipper Kid in Cologne for the Theater for the Word Festival in 1981. She and her partner
Routh Kipper starred as Hitler and Eva Braun in a diarrhea- and sauerkraut-infused show
that horrified almost everyone in the audience, with the exception of filmmaker Rainer
Werner Fassbinder (Carr 125-26).
46 No 171
The fallout from these cases and others is that a slippage has devel-
oped between the terms “indecent” and “obscene.” The Miller message
seems to be that something indecent might not actually be obscene: for
the profane is protectable. Expletives themselves cannot be banned, as
per the ruling in Cohen v. California (1971), a case involving clothing
emblazoned with the F Bomb (“F*** the Draft”). Because audiences are
not captive, one may remove oneself from such indecent speech, preserv-
ing its sartorial semiotics. When a popular George Carlin radio broadcast
contained foul language, it, too, tested the limits of the indecency/obscen-
ity divide. In FCC v. Pacifica Foundation (1978), SCOTUS upheld the
Federal Communications Commission’s (“FCC”) decision to regulate
indecent but not obscene speech: a true foreshadowing of a similar power
vested in the NEA. The Supreme Court held that, although the edgy
comedian’s Filthy Words routine was indecent yet not obscene, it might
be intercepted by children during the hours they are typically awake, and
thus was the proper subject of regulation. In the 1989 California case
Sable Communications of California v. Federal Communications Commis-
sion, a Dial-a-porn ban was unconstitutional for obscene messages, but
not indecent ones: “Sexual expression which is indecent but not obscene
is protected by the First Amendment” (Sable 126). Finally, though inde-
cent material may be regulated, not all attempts to contain it are legal, a
point championed by porn maven Robin Byrd, who sued Time Warner
cable when it attempted to scramble her shows. This unwelcome intrusion
violated the Constitution, and as journalist Stephanie Buck reports, Byrd
eventually won her case, though she admits it drained her, spiritually and
emotionally: another emotional moment that can sit beside Hughes’ and
which legal philosophy cannot ignore if it is to remain human.
It is in this complicated network of seemingly incompatible argu-
ments that Karen Finley and her co-plaintiffs found themselves when
they made the decision to pursue a facial challenge of the Williams/Cole-
man Amendment. 13 Like comedian George Carlin, she found herself
trapped between the indecent and the obscene, an especially precarious
13. Finley’s case involved both facial and as-applied challenges. A facial challenge
alleges that the law cannot ever be justly applied as it is written; an as-applied challenge
alleges that the law’s text is proper, but it has been misapplied. Finley’s as-applied challenge
resolved when, after the discovery process, the NEA stipulated to pay the artists grant
money, attorney fees and damages. As for the facial challenge, this issue did not emerge
until the First Amended Complaint, when the National Association of Artists’ Organiza-
tions (“NAAO”) joined the case (Finley 577). Though scholars like Kowalski fault Finley
for pursuing a facial rather than as-applied challenge with SCOTUS, the settlement would
surely have enervated any further as-applied challenge.

MICHAEL ANGELO TATA
place for a female artist to be positioned. For if the male gaze is porno-
graphic, a point vividly made by Linda Williams in Hard Core: Power,
Pleasure and the “Frenzy of the Visible,” then presenting the female body
as pornographic object would be perhaps the most powerful way to cri-
tique that gaze. Such an approach would be inherently political and
should be accorded the highest level of protection, especially given the
art-historical backdrop of the Williams/Coleman amendment. 14 Manet’s
odalisque cannot step out of the painting’s frame without engaging
obscenity.
Justice O’Connor’s Ruling: The Arete Trap

O’Connor’s opinion takes the view that the NEA’s general stan-
dards of excellence under 20 U.S.C. 954(d) make discrimination, read as
taste, permissible in a patronage setting, which is not subject to the rules
of Constitutionality because it involves a prior concept of excellence that
allows the subjective to slip in. In the classical Athenian tradition, arete
was the name for the virtuous perfection of an art, and O’Connor invokes
its subtle history when she makes excellence itself the off-ramp for Consti-
tutionality. 15 Because we are not dealing with the government as speaker,
sheer consumption prevails: “[W]hen the government is acting as patron
rather than as sovereign, the consequences of imprecision are not consti-
tutionally severe” (Finley 589). By “not constitutionally severe,”
O’Connor means that they do not violate the First Amendment by chill-
ing speech and expressive conduct. As arete precedes and even grounds
the decency requirement tacked on to the NEA rules in the same clause,
it has already set the stage for the tasteful discrimination that informs the
determination of what constitutes excellence and what becomes bad art or
kitsch, terms that surprisingly appear only in Scalia’s concurrence (597).
In fact, it is the ultra-conservative Scalia who pays the closest atten-
tion to the performances in question through his Concurrence, a quirk of
the case: for example, as he alone summarizes, “Finley’s controversial
14. “Although all artwork is arguably political speech, the artwork that precipitated
the enactment of the decency clause had a uniquely political element in that these works
were criticized for the homosexual overtones they conveyed…The view that the majority
adopted toward the creation of the decency clause, the failure to note the controversy, and
the struggle between the art world and Congress that precipitated its enactment, ignores
the possibility that the legislators and NEA officials will make judgments based on their
own personal mores” (Kowalski 258-59).
15. Phillip Vassallo provides a history of arete. In particular, Athenians rooted arete in
“humankind’s quest for excellence.” Taken literally, arete denotes a sharp mountain ridge.
48 No 171
show, We Keep Our Victims Ready, contains three segments. Finley visu-
ally recounts a sexual account by stripping to the waist and smearing
chocolate on her breasts and by using profanity to describe the assault”
(597 note 2). O’Connor provides no such description, passing over the
textuality of the challenged art in a remarkable silence, something legal
scholars like J.R. Bloom and H. Lackland have noticed: “Justice Scalia,
in concurrence, and Justice Souter, in dissent, demonstrated that a clear
and more principled opinion than the majority’s could be written either
to uphold or invalidate the legislation” (Bloom 2). Scalia is no C. Carr,
but he echoes her gaze in a way that O’Connor does not. For the author
of this essay, this blind spot makes O’Connor’s opinion less convincing
than Scalia’s: Scalia, the great conservative juggernaut who takes the time
to engage the work of art at the level of its sensuous surface, almost as if
he were a fin-de-siècle Decadent in Oscar Wilde’s circle.
In the context of an arts application, “discrimination” is not the
advancement of one viewpoint over another, but rather a subjective pref-
erence that aspires to objectivity, an almost neo-Kantian reading of the
NEA’s enabling statute and the Williams/Coleman Amendment. In
O’Connor’s Critique of Judgment, the taste of the patron prevails, a
choice legal scholars do not always trust, as they feel it masks a hidden
core of viewpoint-based discrimination: “Controversy is a common reac-
tion to artistic themes involving sexuality, politics, or religion, but tying
an artist’s creativity to government approved ‘safe’ topics is a form of
viewpoint discrimination” (Schmaltz 355). Some have even characterized
O’Connor’s decision as philosophically flimsy, “a decision in search of a
rationale” (Bloom 2). Here, the patron is the U.S. government, although
O’Connor’s introduction of a patronage paradigm certainly invokes the
history of Western art, which only after the patronage system collapsed
became exhibition-based. Here, the government is a modern surrogate for
a family like the Medicis, keeping art alive through taste-based subsidies
that cannot proceed without some degree of selectivity, especially given
its limited resources, a point central to O’Connor’s analysis. 16 Though
these subsidies inherently presuppose the preference of one artist over
another, they do not violate the Constitution because they do not consti-
tute viewpoint-based discrimination. In Constitutional Law, when gov-
ernment-based discrimination relies on either content or viewpoint, it
impermissibly infringes upon the First Amendment. Yet since arete-based
decency is the rewarding of excellence rather than the punishment of the
iconoclastic, it is fundamentally rooted in subjective principles that are
16. According to the NEA, its 1990, budget was $171,255,000. That same year, the US
GDP was $5.963 trillion.

MICHAEL ANGELO TATA
not amenable to fixed definitions: “The ‘very assumption’ of the NEA is

that grants will be awarded to the ‘artistic worth of competing applica-
tions,’ and absolute neutrality is ‘inconceivable’” (585). As such, the
decency requirement is “merely hortatory”: a strange wish or exhortation
that actually comes to bear so much weight that individual funding
largely collapses in the wake of Finley, making the naked female body a
lost site of resistance (580).
Because taste is subjective, arete is a concept that necessarily requires
a human being to make a choice transcending the cold objectivity of
logic. O’Connor is pointed: without subjective standards of excellence,
there is no patronage, but to dismantle the structure of patronage solely
because its foundation cannot be made objective would be a result that
benefited no one: a sentiment the dissenting judge at the trial court, Judge
Kleinfeld, expressed. Though O’Connor agrees with Kleinfeld, it is Scalia
who echoes his sentiments the closest: “Avant-garde artistes such as
respondents remain entirely free to epater les bourgeois [sic]: they are
merely deprived of the additional satisfaction of having the bourgeoisie
taxed to pay for it” (596).
O’Connor provides numerous examples of grants programs that
have no decency requirement but which nevertheless rely upon technical
and industry-specific notions of excellence, and which are therefore inher-
ently viewpoint-based because excellence itself is a viewpoint. Thus, the
Congressional Award Program promotes public service excellence among
youths; the National Endowment for the Humanities promotes excellence
regarding humanities scholarship; Fulbright Grants endorse excellence in
the sphere of international relations; and the Secretary of Energy recog-
nizes excellence in mathematics and scientific pedagogies (589). To dis-
mantle the NEA by invalidating the Williams/Coleman Amendment
would have a contaminating and corrosive effect on arete in general, with
excellence itself being the ultimate casualty. It would be as if the notion
of mastery would be destroyed: what would be left to reward when it
came to these “selective subsidies” (589)?
Given the fraught history of the decency amendment, this decision
to err on the side of that undefinable quiddity, excellence, is also a deci-
sion to support the Congressional tug-of-war that produced the legisla-
tion. Williams/Coleman was something of a bipartisan achievement, a
rarity in the politicized aesthetic environment that followed Mapplet-
horpe and Serrano. As O’Connor elucidates, the alternatives to Williams/
Coleman were far more severe. The Crane Amendment was so extreme
that it would have “virtually eliminated the NEA” (576). Though not as
outrageous, the Rohrabacher Amendment prohibited grant awards to any
50 No 171
artist who denigrated the beliefs of any religion. In the words of Repre-
sentative Pat Williams (Democrat, Montana), grants would have been
denied for Jasper Johns’ flag paintings (1954-1955), Shakespeare’s Mer-
chant of Venice (1598), the Broadway musical “A Chorus Line,” by Dante
and Kirkwood (1975), the film The Birth of a Nation, by Griffith (1915),
and Steinbeck’s Grapes of Wrath (1939), an unthinkable catalogue of phi-
listinism (582). In this context, Williams/Coleman was almost miraculous:
“The legislation was a bipartisan proposal introduced as a counterweight
to amendments aimed at eliminating the NEA’s funding or substantially
constraining its grant-making authority” (581).
Though the amendment disfavored the inflammatory, O’Connor
does not find this wrinkle fatal to the amendment, which already supple-
mented a general tropism toward excellence rooted in the NEA’s enabling
statute, 20 U.S.C. § 953. Though decency might mean something different
to “a septuagenarian in Tuscaloosa and a teenager in Las Vegas,” this
polysemy does not make the amendment unnecessarily vague or over-
broad (Finley 583). Rather, it is an implicit commentary on the nebulosity
of excellence, which from Plato’s Ion onward can only be a je ne sais quoi
not amenable to literal language.
Beyond excellence, there is the question of tradition: one pole in the
ongoing culture war. At one of her rare humorous moments, O’Connor
quips that “one could hardly anticipate how ‘decency’ or ‘respect’ would
bear on grant determinations in categories such as funding for symphony
orchestras” (513-14). She must not have heard of John Cage: someone
for whom a classical musical performance is anything but decent or
respectful, as demonstrated by his quintessential performance piece 4’33’
(Aronson 29-35). Or maybe SCOTUS was just not ready for performance
art. Lastly: perhaps art itself, that pulsating Hegelian mechanism for the
production of Spirit, was unprepared for performance, the final genre
that would topple it, at least from the perspective of funding. 17
Souter’s Dissent: The Specter of Totalitarian Democracy

Though under the Constitution Finley’s work could never have been
banned—it would surely have survived the Miller test—it may legiti-
mately be disfavored for funding, according to O’Connor’s analysis.
17. Hegel’s Aesthetics presents Geist’s journey through various media (painting, sculp-
ture, poetry). After Geist has traversed these categories, it leaves the world of art behind
for a superior discipline: philosophy. This author always struggles to imagine where Hegel
would have slotted performance art (which did not exist at the time of the Aesthetics) into
his schema.

MICHAEL ANGELO TATA
Although Citizens United v. Federal Election Commission (2010), the case

that defined speech as spending, will not be heard for 12 years, Justice
Souter telepoetically calls to its presence in his Dissent. For while
O’Connor has based her opinion on a capitalist-Darwinian theory of
competition, what she ignores is the fact of scarcity as it pertains to the
subsidy situation, at best treating competition as a proxy for scarcity (614
note 8). For Souter, viewpoint-based discrimination combined with scar-
city—masked as competition—impermissibly suppresses speech in Finley.
The Declaration of the National Association of Artists’ Organiza-
tions Executive Director Charlotte Murphy, the note on which his dissent
ends, recounts applicants who have refrained from applying for NEA
grants post-Finley, the very type of chilling effect typically frowned upon
under a First Amendment analysis. For Murphy, and for Souter, the
prospect of losing the “imprimatur” of the NEA, which occupies a “dom-
inant and influential role” in arts funding, discourages innovation and
creativity, promoting the kind of homogeneity that is fundamentally out
of sync with the NEA’s mission, as embodied in its enabling statute (622).
Small wonder that the funding of individual artists largely ends with this
suit, when NEA Director Jane Alexander pulled the plug on individual
funding in 1994, in the thick of Finley’s challenge. 18 As je ne sais quoi,
nudity is just not something that can be regulated.
What Souter does understand is the danger of totalitarian democ-
racy: that is, the establishment of the volonté générale as contractual
ground of lawfulness. Though he does not openly contradict Rousseau,
he appears to fault O’Connor for following the philosopher’s paradigm
in his Social Contract, even echoing J.L. Talmon’s The Origins of Totali-
tarian Democracy. The voice of the minority within a majoritarian frame-
work can only dwindle, if what we rely upon is numbers, as Rousseau did
in his notion of the sovereign will, raised to a totalizing principle. For
when the votes are tabulated, minoritarian desires might very well be
subsumed by majoritarian ones in the absence of some kind of corrective
for the volonté générale. Thus, for Souter, decency can read as masquerade
for other majoritarian values that may remain tacit because they are pre-
sumed, thereby suppressing minority ideas and opinions because they are
outvoted: a result that sounds fair, but which conceals a nefarious logic
of numerosity.
Souter does not allow the presumptions hiding behind these integers
to remain silent: “What if the statute required a panel to apply criteria
18. The Battle Over the National Endowment for the Arts, Constitutional Rights Foun-
dation, https://www.crf-usa.org/bill-of-rights-in-action/bria-13-2-a-the-battle-over-the-nati
onal-endowment-for-the-arts.
52 No 171
‘taking into consideration the centrality of Christianity to the American

experience,’ or ‘taking into consideration whether the artist is a Commu-
nist,’ or ‘taking into consideration the political message conveyed by the
art,’ or even ‘taking into consideration the superiority of the white race?’”
(Finley 610). These are genuine questions. It is startling to hear them
articulated by a Supreme Court Justice, given the United States’ founda-
tional separation between church and state, a mauvaise foi Hunter
addresses in his work on America’s culture wars. Though O’Connor does
not see these interrogatives lurking in the background, they color what
counts as decency and enshrine nudity as the antithesis of decency,
imbuing the outraged public’s general will post-Serrano and Mapplet-
horpe with a totalitarian character that silences dissonant voices by deny-
ing them the funds they require to achieve expression.
Conclusion: Art as Defacement

In his analysis of Lascaux, Georges Bataille asks an important ques-
tion: Why didn’t our ancestors view art as defacement? Why weren’t the
images of so many hands traced with ochre or a shamanistic bird-man
leading the buffalos with his erection perceived as an act of sadism
directed against the wall of the cave? Finley’s chocolate-smeared naked
body asked a related question of art and of the NEA. Through her per-
formance, the issue of defacement surfaces in a way that raises the Las-
caux Question, centuries later, in SoHo. Why is her chocolate-smeared
body not read as viable art in a grant context? For Finley smears more
than her body with chocolate: she smears both the history of Western
Art and her own personal life—which we learn about through the great
enemy of postmodernism, Scalia, not O’Connor, sometimes a friend to
différance, but not always so. Only Scalia is sensitive to the épater para-
digm central to the Western avant-garde, comprehending the irony of
asking for defacement to be funded.
O’Connor gives almost no details about the art in question, perhaps
because the details do not matter: excellence is the viewpoint of all view-
points, and once it has been invoked, we sink in the quicksand of subjec-
tivity, which loses all pretentions to quasi-objectivity. Art can challenge
anything, but it cannot attack the progressive narrative of excellence. Yet
without a subjective standard of arete, could there ever be any parceling
out of subsidies on the part of the sovereign? As anthropology has dem-
onstrated, the gift has an irrepressible power that grounds and transcends
economy, and the NEA’s grant, read as gift of the patron, should perhaps

MICHAEL ANGELO TATA
be no exception. 19 As such, it, too, is metaphysical, irreducible and

beyond the generosity of exchange. After Finley, this gift could only disap-
pear into the ether, untethered from capital and wafting through the
clouds in a poof of Nesquik.
WORKS CITED
Articles
BLOOM, JR., Lackland H. “NEA v. Finley: A Decision in Search of a Ration-
ale.” Washington University Law Quarterly 77.1 (1999).
BUCK, Stephanie. “The Wholesomely Pornographic Robin Byrd Sued Time
Warner to Keep Her Show on the Air.” Timeline.com (March 15, 2017), https://
timeline.com/robin-byrd-show-ed92d1e790e1. Accessed June 24, 2021.
KOWALKI, Karen M. “National Endowment for the Arts v. Finley: Painting a
Grim Picture for Federally-funded Art.” DePaul Law Review 49.217 (1999).
PARACHINI, Allan. “Frohnmayer Denies ‘NEA 4’ Grant Appeals: Arts Fund-
ing.” Los Angeles Times August 25, 1990, https://www.latimes.com/archives/la-
xpm-1990-08-25-ca-998-story.html. Accessed June 24, 2021.
SCHMALTZ, Kimberly A. “National Endowment for the Arts v Finley: View-
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Patron.” Northern Kentucky Law Review 26.337 (1999).
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Arete. Accessed June 24, 2021.
WILKISON-RYAN, Tess and David A. HOFFMAN. Breach is for Suckers. Vander-
bilt Law Review 63:4 (2019).
Books
ARONSON, Arnold. American Avant-Garde Theatre: A History. London: Rout-
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BATAILLE, Georges. The Cradle of Humanity: Prehistoric Art & Culture. Trans.
Michelle Kendall. New York: Zone Books, 2009.
—. The Accursed Share: An Essay on General Economy, Volume 1. Trans. Robert
Hurley. London: Zone Books, 1991.
19. In anthropology, the work of Marcel Mauss has identified gifting as primal mode
of exchange, via phenomena like the famous potlach so central to the thought of Bataille:
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(for example, through human sacrifice).
54 No 171
BEZANSON, Randall P. Art and Freedom of Speech. Champaign: U of Illinois P,

2009.
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Finley.” On Edge: Performance at the End of the Twentieth Century. Hanover: UP
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P, 1988.
HEGEL, Georg Wilhelm Friedrich. Aesthetics: Lectures on Fine Art Volume I.
Trans. T.M. Knox. Oxford: Oxford UP, 1988.
—. Aesthetics: Lectures on Fine Art Volume II. Trans. T.M. Knox. Oxford: Oxford
UP, 1988.
MARTIN, Carol, A Sourcebook of Feminist Theatre: On and Beyond the Stage.
New York: Routledge, 1996.
MAUSS, Marcel. The Gift: The Form and Reason for Exchange in Archaic Socie-
ties. Trans. W.D. Halls. New York: W.W. Norton & Company, 2000.
O’NEILL, Jonathan. Originalism in American Law and Politics: A Constitutional
History. Baltimore: Johns Hopkins UP, 2005.
PLATO. Ion: A Dialogue. Trans. Benjamin Jowett. Rockland: Wildside P, 2010.
TALMON, J.L. The Origins of Totalitarian Democracy. London: Secker & War-
burg, 1952.
WILLIAMS, Linda. Hard Core: Power, Pleasure and the “Frenzy of the Visible.”
Berkeley: U of California P, 1999.
ZIZEK, Slavoj. The Fragile Absolute: Or, Why Is the Christian Legacy Worth
Fighting For? London: Verso, 2000.
Cases
Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002).
Ashcroft v. Free Speech Coalition, 536 U.S. 234 (1996).
Cincinnati v. Cincinnati Contemporary Arts Center, 57 Ohio Misc.2d 15 (Ohio
Mun. 1990).
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000).
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
Cohen v. California, 403 U.S. 15 (1971).
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FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
Jenkins v. Georgia, 418 U.S. 153 (1974).
Matal v. Tam, 137 S. Ct. 1744 (2017).
Miller v. California, 413 U.S. 15 (1973).

MICHAEL ANGELO TATA
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).
New York v. Ferber, 458 U.S. 747 (1982).
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989).
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Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).
56 No 171

NUDE DESCENDING A STAIRCASE AT THE NATIONAL ENDOWMENT FOR THE ARTS: A LEGAL ANATOMY OF KAREN FINLEY'S CONSTITUTIONAL CHALLENGE Michael Angelo Tata

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NUDE DESCENDING A STAIRCASE AT THE NATIONAL ENDOWMENT

FOR THE ARTS: A LEGAL ANATOMY OF KAREN FINLEY’S

Michael Angelo Tata

Belin | « Revue française d’études américaines »

2022/2 N° 171 | pages 40 à 56

Distribution électronique Cairn.info pour Belin.

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Nude Descending a Staircase

Keywords En 1990, le scandale des « NEA Four » a mis au centre

A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE

Introduction: Nudity and the End of Art

Revue Française d’Études Américaines 41

MICHAEL ANGELO TATA

A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE

Revue Française d’Études Américaines 43

MICHAEL ANGELO TATA

Nudity’s Slippery Middle Ground: Indecency

A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE

v. Cincinnati Contemporary Arts Center (1990). The Miller test’s essence

Revue Française d’Études Américaines 45

MICHAEL ANGELO TATA

a mentality originating in Judge John Woolsey’s forward-thinking opin-

A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE

Revue Française d’Études Américaines 47

MICHAEL ANGELO TATA

Justice O’Connor’s Ruling: The Arete Trap

A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE

Revue Française d’Études Américaines 49

MICHAEL ANGELO TATA

not amenable to fixed definitions: “The ‘very assumption’ of the NEA is

A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE

Souter’s Dissent: The Specter of Totalitarian Democracy

Revue Française d’Études Américaines 51

MICHAEL ANGELO TATA

Although Citizens United v. Federal Election Commission (2010), the case

A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE

‘taking into consideration the centrality of Christianity to the American

Conclusion: Art as Defacement

Revue Française d’Études Américaines 53

MICHAEL ANGELO TATA

be no exception. 19 As such, it, too, is metaphysical, irreducible and

A LEGAL ANATOMY OF KAREN FINLEY’S CONSTITUTIONAL CHALLENGE

BEZANSON, Randall P. Art and Freedom of Speech. Champaign: U of Illinois P,

Revue Française d’Études Américaines 55

MICHAEL ANGELO TATA

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

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