A rather fascinating ruling by the US Supreme Court in June 1998, in a case related to the federal funding dispensed by the National Endowment for the Arts (NEA), actually dealt with these issues, and even though what the court had to say relates to the situation in the US only, we can certainly learn something from it.
Briefly, the NEA, established in 1965 to provide grants to artists, projects and institutions in various artistic spheres, has dispensed billions of dollars since its establishment. From time to time controversies have emerged regarding specific decisions of the endowment.
In 1989 grants which were indirectly granted to two artists, one of whom had engaged in homo-erotic photography and the other of whom had immersed a crucifix in urine, which raised an outcry in many quarters, and resulted in certain amendments to the section in the National Foundation on the Arts and Humanities Act dealing with the NEA.
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The new §954(d)(1) amendment states that with relation to the grants provided by the NEA, “artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” This was followed by §954(d)(2) which states that “obscenity is without artistic merit, is not protected speech, and shall not be funded.”
Since it was admitted that “general standards of decency and respect for the diverse beliefs and values of the American public” is a rather vague criterion in a heterogeneous society like that of the US, another amendment was added, §959(c)(1) and (2), which ensures that the advisory panels that recommend the recipients of the grants must reflect “diverse artistic and cultural points of view,” include “wide geographic, ethnic, and minority representation” as well as “lay individuals who are knowledgeable about the arts.”
A commission established by Congress before the amendments were enacted to review the NEA’s grant-making procedures and to assess the possibility of more focused standards for public arts funding concluded in its report that there is no constitutional obligation to provide arts funding. However, since Congress nevertheless decided to provide funding for the arts, the commission recommended procedural changes which would enhance the role of the advisory panels involved in reviewing grant requests, reaffirming “the high place the nation accords to the fostering of mutual respect for the disparate beliefs and values among us.”
Amendment §954(d)(1) reached the courts, because it was argued that it contravenes the First and Fifth Amendments to the US Constitution, which ensure extensive freedom of speech, and require clarity and the avoidance of vagueness in the provisions of the law, especially those related to the First Amendment. As mentioned above, the issue reached the Supreme Court in 1998.
The court confirmed the constitutionality of the amendment, stating that there was no danger of “invidious viewpoint discrimination.” It pointed out that since the budget of the NEA is limited it has no alternative but to exercise its discretion in deciding who should receive funding, even though many artistically excellent projects might be denied funding as a result of its choices, and that this was legitimate so long as there is no infringement on constitutionally protected rights. It added that if government funding were calculated to drive “certain ideas or viewpoints from the marketplace,” this would raise “a more pressing constitutional question.”
This last point, which did not relate to the specific case before the court, is probably the most relevant to the current debate in Israel. The current debate in Israel is not about denying government funding for obscene projects (though this issue has come up in the past) but certainly concerns an attempt to “drive certain ideas or viewpoints from the marketplace.”
True, Culture and Sport Minister Miri Regev has argued that there is no attempt to limit the freedom of speech or the expression of controversial views, only a refusal to provide funding for projects that express them. But she is certainly aware of the fact that in the absence of public funding it will be more difficult, if not impossible, to realize such projects, given the fact that the current government is also intent on placing barriers to external sources of funding for such projects.
The problem is enhanced by the fact that Regev defined the viewpoints that she believes should be excluded from public funding as those involving the “delegitimization of the State of Israel” and “the delegitimization of the IDF.”
What does “delegitimization” mean in this context? To delegitimize Israel or the IDF means claiming that they do not have the right to exist, either absolutely or conditionally.
Criticizing the policies and actions of the current government and of the IDF, and warning that these policies endanger Israel’s future, is not delegitimizing Israel and the IDF, any more than the protests of the Right against the policies and actions of Yitzhak Rabin’s second government (1992-1995) constituted the delegitimization of Israel.
Many in the Right who admit that criticism of the government and the IDF do not in themselves constitute delegitimization argue that such criticism supports foreign factors who delegitimize Israel, and is therefore tantamount to delegitimization.
However, one could equally argue that it is the policies of actions of the current government and the IDF that fuel the arguments of those who delegitimize Israel, and that many of the foreign factors currently involved in questioning Israel’s legitimacy would not be doing so if Israel continued to act in accordance with the letter and spirit of Israel’s Proclamation of Independence.
Is there any way to get out of this tangle? Perhaps we could adopt the provisions of the American law on the subject, adding to the obscenity clause another that excludes government funding for projects that openly support what are considered offenses under the Israeli criminal code relating to incitement and deliberate infliction of harm to the state.
However, what seems most important is that we adopt the principle that the bodies responsible for deciding who should receive public funding should be balanced in their makeup. In Israel this would mean that the Culture Administration (Minhal Hatarbut), which is responsible for recommending recipients of funding, should be more diverse than it is currently, both in terms of population groups, territorial distribution and political views.
Regev is certainly right when she claims that currently the periphery is neglected. She has especially the Mizrahim in mind, but the reality is that the periphery includes most of the Arab population and the new immigrants from the former Soviet Union, as well as the settlers and most of the voters of both the Likud, the Bayit Yehudi and the Joint Arab List. Hopefully providing more to the periphery will not be at the expense of the Center (especially the so called “State of Tel Aviv”), but by means of substantially increasing the budget for funding the arts, which is currently extremely low.
Regev keeps stating that her main goal is to increase the budget for culture. Let us all wish her success in this endeavor.
The writer is a political scientist and a retired Knesset employee.