PUBLIC FUNDING OF THE ARTS? YES AND NO.

As an aspiring (and distracted) writer who shares an apartment with a struggling painter, I have a special reverence for art. It thrills me, challenges me, inspires me, guides me. When I see something beautiful or powerfully created, it often brings tears to my eyes, making me want to shout to the world, "Look at this! Look! Do you feel it? Does it change you, too?"

And so I agree passionately with the points made today on this page about the importance of art to the soul and spirit of individuals, communities and nations. Art is not truth, and it is dangerous to believe that it is. But it can help us find truth. And it can uplift us and nourish us like nothing else.

But does this mean that art should be publicly funded? I'm not sure. While sometimes uplifting and nourishing, art can also be destructive.

Is it right then for me to ask money of you (or you to ask money of me), if that money is going to be used to damage or destroy something you or I value? Part of me says, no, that would be unfair and immoral, while another more calculating part tries to figure the balance of the bargain. Do I gain more value than what is destroyed? If so, give me the pen, and I'll sign.

Although Goethe's Faust once made such a deal with the devil and came to regret it, my perspective is that the benefits received from public funding of the arts far outweigh the disadvantages, especially at the local level. The problem is that the disadvantages seem to be growing.

These disadvantages, like so much else that troubles America, result from the skewed set of priorities that are held by many in our society, including many government leaders and federal judges. This is the penchant to privilege expression over responsibility. Until its directors were changed recently, the National Endowment of the Arts was guilty of acting with such priorities as well.

Although Ms. Strohmeyer asserts nearby that in 25 years only 20 NEA grants have been charged with violating the public interest, in the past two years alone a dozen grants jump to my mind as egregiously crossing that line.

So what, though, if over the years 20 grants were awarded that violated public interest? Or if 100 were? Or 1,000? Doesn't the good of the other 84,000 still outweigh the bad?

Perhaps. Perhaps not. But that's the wrong question. Unlike our justice system, where we have a built-in bias to protect the innocent defendant at the expense of sometimes letting the guilty go free, we can be more demanding of the NEA. What we should be asking is, If we are going to use public funds to support art, how do we make sure art that serves the public interest receives funding, and art that violates it doesn't?

To do this we must have a public art support system that includes artists and public representatives, and which values foremost the good of society and not the artist. (I am talking exclusively about public funds here, not private.)

The problem is that the current system, which ostensibly makes sense, has been usurped at the highest levels. In particular, peer reviews have too-often turned into incestuous logrolling sessions, where one artist reviewer shuffles a grant to his friend, who then returns the favor. Next, these peer reviews, which elevate the significance of expression well above public interest, are turned into nearly untouchable demands upon public funds.

Thankfully, the acting head of the NEA, Anne-Emelda Radice, is trying to restore common sense and accountability to the organization. With the foresight that an out-of-control NEA would probably be eliminated by a Congress under siege from its constituents, she has used her position to veto peer recommendations like "Genital Wallpaper" and "Corporal Politics," works which were described by the NEA advisory panel as featuring "often disturbing" examples of "violence, castration, sexual fetishism and ultimate loss." This is at it should be.

Sadly, Ms. Radice may be fighting an unwinnable battle. Perhaps it is impractical and constitutionally impossible for the federal government to be an arts benefactor. That, at least, is one of the messages that was sent on June 9, when Judge A. Wallace Tashima ruled against the NEA's previous director in a case filed by performance artist Karen Finley. (Finley's "art", you might remember, includes stripping nude and smearing herself with chocolate as a metaphor to how women are treated in today's society note, the chocolate does not represent chocolate).

Finley had alleged that the NEA's denial of funding violated her first amendment rights to free speech. While not deciding whether or not, in fact, the NEA violated the consitution in this particular case, the judge ruled that it could have. "While the government does not have to give grants," the judge wrote, "while it does grants, restrictions that discriminate on the basis of the content is unconstitutional." This ruling is mindboggling. How can content not be a criteria for determining the artistic merit of an art piece?

On Friday, I telephoned the NEA's offices in Washington and talked to its general counsel, Amy Sabrin. Please explain this ruling to me, I asked. Here are just a few of the startling aspects of the judge's decision.

1) The judge ruled that if, indeed, it can be proved that the NEA's denial was the result of content, the government clearly acted unconstitutionally.

2) When the NEA argued that government grants are discretionary and the mere refusal to fund is not censorship, the judge ruled otherwise. It is censorship and thus violates the first amendment, he said.

3) After the NEA responded that its very definition as a government agency is to make discretions, and it would be an impossible burden on the courts to review every grant rejected to see if content were a consideration, the judge disagreed, saying, "Political expediency is neither an expressed or an implied criteria under the statute for denial of an NEA grant."

4) Finally, the judge struck down a provision of the Congressional statute which authorizes the organization of the NEA. The statute reads, "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." Citing the "vagueness rule" (a person of ordinary intelligence must know what "general standards of decency" or "beliefs and values of the American public" are, and that is unlikely, said the judge), the judge decided that the language was overall broad and, furthermore, captured indecent speech, which was clearly protected.

The meaning of all this is that, if the judge's decisions are not overturned along the line, even asking the question, Does this art benefit the public interest, is invalidated for determining who receives public funding. If that's the case, how can public funding be justified then?

It can't.