Summer brought no peace to Washington. Thanks to the Supreme Court, the issue of abortion went back to the states whence it had come sixteen years earlier. But, as if in return, Washington was given patriotism and obscenity when the Court upheld the burning of the flag by an angry Gregory Johnson and when an embarrassed Corcoran Gallery cancelled an exhibition of Robert Mapplethorpe photographs.
Johnson was angry with the United States, which proved to be his salvation because, as the Court explained, the First Amendment protects angry political expression, but not, if such exists, pointless political expression: for example, flag-burning just for the fun of it. The Corcoran was embarrassed, not by the Mapplethorpe photographs themselves but by its decision to cancel the exhibition, thereby surrendering its principles to a phalanx of angry Congressmen led by “the unspeakable [Senator] Jesse Helms,” as he was called by the Washington Post, “America’s Number One Yahoo.” After all, the Corcoran is an art gallery and Robert Mapplethorpe was an artist, and it follows—at least in the art world it follows—that everything done by an artist is art. Art, like angry flag-burning, is one of the modes of expression, and expression is said to be protected by the First Amendment.
According to Robert McCormick Adams, the head of the Smithsonian Institution, even graffiti are (or is) art. Including, we are entitled to ask, even graffiti spray-painted on the exterior walls of one of the Washington museums entrusted to his care—for example, the National Gallery’s East Wing of which he is a trustee? After all, by definition graffiti are words or pictures scratched or painted on a public surface, and the East Wing provides public surfaces much grander, cleaner, and, one would think, much more inviting than any available in New York City subways. So grand, in fact, and so clean, that one wonders why no one has yet taken advantage of them. (Perhaps we can thank the corps of dogs employed by the Smithsonian to police its grounds and buildings.) Still, notoriety awaits the first to do so, just as notoriety, of a sort, was won by the anonymous New York subway “graffitists” when, with the help of a grant in the amount of some $160,000 from the National Endowment for the Arts (“Your Tax Dollars at Work!”), a film was made depicting their work, and not only depicting but celebrating it.
Rather than celebrate it, Adams would surely call the police, the FBI, or the U.S. Attorney’s office, if someone were to spray graffiti on any of the Smithsonian buildings. Graffiti may be an art, and art may be a form of expression, and expression may be protected by the First Amendment, but surely, he would protest, there are limits. He might cite a few Supreme Court decisions having to do with time, place, and manner. At a minimum, we would expect him to be outraged; but outrage was all Jesse Helms was expressing—at least initially. He thought it outrageous that public money, like public surfaces, should be made available to the likes of Robert Mapplethorpe.
One doesn’t have to be a “Yahoo” to agree with Helms on this point. Like Gregory Johnson, Mapplethorpe was undoubtedly expressing himself; indeed, unlike Johnson, he was expressing himself in the etymologically precise sense of the term. According to the unabridged Oxford English Dictionary, expression originally meant “the act of pressing or squeezing out,” hence “to expel or get rid of by force.” Just so, in one of his photographs Mapplethorpe shows one man artfully urinating into the mouth of another, expelling urine by force of the sphincters, so to speak (or so to express). In another of his photographs he also shows a bullwhip thrust, handle first, into a man’s anus. As a Washington Post writer explained, Mapplethorpe “set out to celebrate this domain of sexual experience, to elevate it, even, to a transcendent level.” It was their failure to appreciate this higher purpose that caused the Post to be indignant with Jesse Helms and his “Yahoo” colleagues in the Congress who threatened to cut off funding. Expression, the Post insisted, even apparently shocking expression, is protected by the First Amendment. (In its own expression of indignation, the Post reproduced a Mapplethorpe photograph of a couple of tulips and, a week or so later, a Mapplethorpe self-portrait—of his face—but, for some reason, it never got around to reproducing what the art critic Hilton Kramer, writing in the New York Times, referred to as “those disputed pictures.”)
In fact, of course, the First Amendment protects not freedom of expression but freedom of speech. “Congress shall make no law,” it reads, “abridging the freedom of speech.” But, it might be asked, what is expression if not one of the forms of speech? Indeed, to refer again to the dictionary, the word soon acquired the meaning familiar to us, “the utterance of feelings.” Besides, in our postmodernist world, speech and expression are easily confused and just as easily identified. In his massive and widely acclaimed book, The Study of Freedom of Expression, for example, Thomas I. Emerson of the Yale Law School, no doubt inadvertently, removed the word “speech” from the First Amendment and put in its place the word “expression.” In construing specific legal doctrines which govern concrete issues, he wrote, “the main function of the courts is . . . to define the key elements in the First Amendment: ‘expression,’ ‘abridge,’ and ‘law.’”
It would be foolish, however, to insist on this distinction between speech and expression when confronting the issue of censorship of the arts. Whatever the authors of the First Amendment intended by choosing the word “speech,” there are sound practical reasons for the law to leave the arts alone. Even assuming that not everything carrying the label is, in fact, art, the courts are unable, and have proved themselves unable, to make the aesthetic judgments necessary to mark the distinction. And since the kind of restrictions proposed by Jesse Helms1 would inevitably end up in the courts, it would be best to forget about dealing with the problem through legislation.
Thus, for example, Helms, like the legendary Anthony Comstock, would draw the line between art and obscenity, but many a work of art, and many a literary masterpiece, is obscene. Aristophanes’ Assembly of Women is so obscene that the English translator of the play preferred to remain anonymous. (That was a long time ago.) Hilton Kramer finds it noteworthy that Manet’s painting, “Déjeuner sur l’herbe,” now one of the Louvre’s “treasured classics,” was considered indecent when first exhibited in 1863. But treasured classic or not, it is indecent; no one, however, not even Jesse Helms, I suspect, would say that about the painting that inspired it, Giorgione’s Concert Champêtre. The two paintings—each of them a masterpiece—are both strikingly similar and dissimilar, but what distinguishes them cannot, I think, be expressed in any category known to the law.
Manet, the greatest of the French Impressionists, shows a woman without a stitch of clothes on, and in the background another partially clothed woman, the two of them sharing a picnic lunch with two fully clothed men. Giorgione, some 350 years earlier, shows two women, without a stitch of clothes on, also in the company of two men who are fully clothed. But Manet’s women are undressed; he shows their clothes in a heap. Giorgione’s are simply nude; their clothes are nowhere to be seen. Manet’s women are playful, even wanton, as if it is no big deal, as we would say, for women to undress before men in a public park (a sort of miniature Woodstock festival). Giorgione’s women appear serene, even noble; one of them is holding a pitcher and pouring water from it into a well. Manet’s men look bored; sharing a picnic lunch with undressed women would appear to be something they do every day. Giorgione’s men are innocent and appear to be engaged in serious musical conversation. Nothing indecent is being depicted here; as is evident to someone who knows how to look at this picture, the young men cannot see the women because the women, like Oberon in Shakespeare’s A Midsummer Night’s Dream, are invisible, not to us but to them. The women are not human; they are woodland nymphs who, attracted by the music and charm of the young men, have joined in their pastoral concert, their Concert Champêtre.
There is no reason to believe that a judge cannot be taught to see this—I myself learned it from an art critic, Philipp Fehl—but there is also no reason to believe that a judge could state the difference between the two paintings (or, more to the point, between Manet and Mapplethorpe) in a rule of law. When required to make such distinctions, judges are inclined to mutter something about “redeeming social value” (and find it in Fanny Hill, the highly explicit life story of a whore), or to throw up their hands and say, with the late Justice John Marshall Harlan, “one man’s vulgarity is another’s lyric.” This was said in 1971 for a divided Supreme Court, but it is a foolish statement at best, and at worst it is pernicious. For if Harlan is right, there is no such thing as vulgarity (and therefore no reason to censor), but, by the same token, there is also no such thing as art (and therefore no reason not to censor).
Better, as I say, for the law to leave the arts alone. Better for society to express its disapproval of a Robert Mapplethorpe by simply refusing to fund his work. Presumably—although, goodness knows, there is reason to doubt it—the National Endowment for the Arts, unlike the courts, can do this without a Helms amendment and without jeopardizing the work of Giorgione or Manet.
Political expression is another matter, but unfortunately, our judges hardly do much better in that area. The Illinois Supreme Court even quoted Harlan’s aphorism in the Skokie case, thereby implying that what went for the brandishing of four-letter words in a courthouse (the issue in Harlan’s case) applied equally well to an invasion of Nazis brandishing their swastikas in a community of Holocaust survivors.
This sort of moral relativism is a feature of our First Amendment law: distinctions, whether between the art of the tulip and the art of the anus, or between flag-burning and sober political speech, are not to be made because, so it is thought, they cannot be made except arbitrarily. Just as beauty is in the eye of the beholder, so truth is relative, a proposition that found its way into our law through the good offices of two of our most famous 20th-century Supreme Court justices, Oliver Wendell Holmes and Hugo L. Black. If, said Holmes in 1925, “the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” So, too, Black in 1961: “Education and contrary argument [may provide an adequate defense against Communist and fascist speech, but if that] remedy is not sufficient, the only meaning of free speech must be that the revolutionary ideas will be allowed to prevail.” In other words, it is worse to punish the advocacy of Stalinism or Hitlerism than it is to be ruled by Stalin or Hitler.
According to the historian Arthur M. Schlesinger, Jr., relativism is the peculiar American virtue; everyone we admire—not only Holmes but Learned Hand, Ralph Waldo Emerson, William James, Reinhold Niebuhr, even (astonishingly enough) Abraham Lincoln—in fact, everyone except Allan Bloom and, presumably, the “Yahoos” represented by “the unspeakable Jesse Helms”—was or is a relativist. Relativism, Schlesinger says, “is what America is all about.”
It was, of course, otherwise at our beginning. John Locke was the first to teach us the importance, not of speech—Aristotle did that—but of freedom of speech, by which he meant freedom of religious speech, or liberty of conscience. Locke, writing in the 17th century, aimed this doctrine at the clergy (for example, the Archbishop of Canterbury, William Laud) who, with the support of the government (for example, King Charles I), used their speech to instruct people in the proper care of their souls and threatened to punish anyone who disobeyed. The consequence, especially in Locke’s own time, was civil war and revolution. Locke taught, and succeeded in teaching Thomas Jefferson and the other American Founders, that “the care of each man’s soul belongs unto himself alone,” and that “liberty of conscience is every man’s natural right.” Government is instituted to secure that right, which means, so far as government is concerned, that there is no right way to care for souls and that all religious speech is equal. As Jefferson put it, “It does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” In fact, he added, “difference of opinion is advantageous in religion.”
Advantageous in religion and, as he said elsewhere, harmless in physics and geometry; but he never said that, or anything resembling it, with respect to political speech. On that subject, and unlike Schlesinger, he and the other Founders were not relativists. As they saw it, we might lack knowledge concerning the right way to care for souls, but we had firm knowledge concerning the fundamental principles of government: we knew that governments were instituted to secure rights, and that they derived their just powers from the consent of the governed. If this were merely an opinion rather than a “self-evident” truth—if, that is, it were a matter on which men might rightly disagree—it would be impossible to protect the right of freedom of conscience. For then the opinion that government must instruct men on the care of their souls would be equal to the opinion that the care of each man’s soul belongs to himself alone, and the issue could not be decided (and, in the Britain of Locke’s time, was not decided) other than by force of arms.
Thus, at our beginning, there was understood to be a difference between religious and other kinds of speech, which is why the First Amendment distinguishes them. With respect to religion we were to be a house divided, and the Constitution was designed to keep us divided. With respect to the fundamental principles of government we were to be a house united, and the Constitution was designed to keep us united: “The United States shall guarantee to every State in this Union a Republican Form of Government” (Article IV, Section 4).
Fulfilling this mandate is not an easy matter. Republican government is representative government, but in the words of James Madison, the people to be represented are by no means united; in fact, they are divided into “factions,” the causes of which are “sown in the nature of man.” By nature, men are selfish, each of them moved by “self-love”; and while they are endowed by nature with the same rights, they are also endowed by nature with different and unequal faculties. The consequence is that they have different interests. Republican government must bring these naturally self-interested persons together to form a whole while also respecting the diversity of their interests and, at the same time, securing their right to have different interests. Not, to repeat, an easy thing to do.
The Founders’ solution was representative government based on the consent of the people. Such a government must, first of all, represent the diversity of interests in the society. Therefore the First Amendment guarantees that each person has a voice in the selection of the representatives who make the laws and form the policy. Stated otherwise, each member of the society registers his consent by debating, organizing, and then choosing his representatives. Freedom of speech plays an essential part in this process.
Secondly, such a government must make it possible for agreements to be reached with respect to the policies adopted in the laws and otherwise pursued. To do this, it must gain the consent of these representatives, or at least a majority of them, each of whom has a right to withhold it. This, too, requires speech, but speech of a certain kind, which is why every representative assembly has rules governing the manner of debate. Kings may speak haughtily and tyrants cruelly, insultingly, or even contemptuously, but the members of a republican assembly must adopt a mode of address that reflects a disposition to respect the interests of others because, as a matter of constitutional right, they are equally respectable. The speech of political representatives will be self-interested speech, of course, but it will be speech that recognizes the difference between self-interest and the common interest and the necessity to agree on a common interest. And given the fact that men are divided by their interests (which derive from their self-love and different faculties), the common interest here takes the form of an aggregation of partially satisfied self-interests.
Gregory Johnson wants no part of this. On the contrary, he has nothing but contempt for the flag and “the republic for which it stands.” To adopt the locution of the day, he is “into” self-expression, and as Harvard’s Harvey Mansfield has reminded us, there is nothing in self-expression that requires or encourages one “self” to seek the consent of another. Self-expression is almost always angry expression, and anger provokes anger, as it did in this instance, not agreement or accommodation.
The reason self-expression is almost always angry is that it is self-assertion. According to Nietzsche (the founding father of self-expression and the man from whom all this derives), the “self” lacks innate definition; it acquires identity, or “authenticity,” only by assertion against others.
In this sense, the “self” is a neologism; we speak of “selfs” where our fathers, or at least our Founding Fathers, spoke of souls, and the difference is decisive. “The soul may be responsible for its being good or bad,” as Leo Strauss wrote some twenty years ago when addressing a somewhat similar issue, “but it is not responsible for its being a soul.” Rather, the soul is (or was) understood to be part of an order for which God was responsible. But in Nietzsche’s words, “God is dead,” and with His death went the ordered universe of which the soul was a part. “Nature’s God,” the God of the Declaration of Independence, is also dead, and with His death went the laws and rights of nature, because, lacking definition, the “self” is governed by no moral laws and is incapable of having rights.
This means that constitutionalism is also dead, an event announced in a recent book by Sanford Levinson of the University of Texas Law School. “The death of ’constitutionalism,‘” he declares, “may be the central event of our time, just as the death of God was that of the past century (and for much the same reason.)” Nature’s God endowed us with rights and, through the agency of the Founders, provided us with a Constitution that, in order to secure these rights, put constraints on the popular will. With His death, those constraints are deprived of all moral authority. In Levinson’s words, “law is stripped of any moral anchoring,” with the consequence that there is nothing “to which the will [is] bound to submit.” No moral order, no moral laws, and, as Nietzsche said, no reason to be burdened by guilt.
The “self” exists in this void; it is merely will; it becomes what it is only by asserting—in Nietzsche’s formulation—“the will to power,” and the strongest will must prevail. This prospect does not frighten Levinson: “Political institutions,” he says, “thus become the forum for the triumph of the will,” the phrase first uttered by Hitler’s minister of propaganda, Joseph Goebbels, and rendered memorable (appallingly so, one would have thought) by Hitler’s favorite film-maker, Leni Riefenstahl, in The Triumph of the Will. When it comes to “self-expression,” no one has yet been able to top Adolf Hitler. On the other hand, considering the condition of our legal and political thought—Levinson claims his view of our situation is held by “most major law schools”—there is no guarantee that someone might not yet succeed in doing so.
All this should serve to convince us that the Supreme Court was ill-advised to treat flag-burning as unimportant. The flag is the symbol of what we think about ourselves, and what we think we are about, much more so than the presidential seal, to adopt Justice William Brennan’s silly analogy. As Judge Robert Bork said after reading Brennan’s opinion for the Court in this case, no one, save perhaps the members of the White House staff, salutes the presidential seal. Nor, unlike the case with the flag, does the U.S. Code devote page after page prescribing when and where it should be displayed—“The flag should be displayed during school days in or near every schoolhouse”—or how it should be displayed, or how it should be folded and disposed of, or how and when it should be saluted. Nor, again unlike the case with the flag, does the Code make it a federal offense to “desecrate” the presidential seal. Like the American people, Congress has always looked upon the flag as something special. Why then is the Supreme Court unable to draw a line in favor of the flag and against its desecration?
The Court’s answer is that the First Amendment forbids the drawing of such a line. Writing for the five-judge majority, Brennan said that “if there is a bedrock principle underlying the First Amendment, it is that the goverment may not prohibit the expression of an idea simply because it finds the idea itself offensive or disagreeable.” But surely it is possible to distinguish between an idea and the manner in which it is expressed. Judges may not be able to devise a rule of law marking the difference between Manet and Mapplethorpe, but it is not beyond their capacity as jurists to distinguish between speech and at least some forms of expression or, for that matter, among the various kinds of speech. Libelous speech is not protected by the First Amendment, nor are “fighting words,” perjury, false advertising, verbal agreements to restrain trade, or vulgar speech in a student assembly, or contemptuous speech in a courtroom. The list is not endless but it is long, and commodious enough to include flag-burning.
Within these limits, Gregory Johnson can say whatever he wants to say; that is the “bedrock principle.” He can with impunity denounce Ronald Reagan and George Bush and call down a plague on the Republican party; he can hurl his imprecations against the United States and the American people; he can scream his disgust with life in the 20th century. He can also make a fool of himself by burning the presidential seal—no law forbids it—but he should not be permitted to do whatever he wants to do by way of expressing his “self.”
Of course, deprived now of flag-burning—because it is no longer illegal—Johnson and his friends will have to find new and, of necessity, more egregious ways to aggress against the symbols, the conventions, or the mores which, as Tocqueville argued, provide the foundation of America’s laws and its political life. For this they might find inspiration in some of Robert Mapplethorpe’s photographs, which may explain why Johnson immediately flew to Washington in order to be among the first to visit the private gallery exhibiting them.
1 A Helms amendment would bar federal arts money from being used to “promote, disseminate, or produce obscene or indecent materials, including but not limited to depictions of sadomasochism, homoeroticism, the exploitation of children, or individuals engaged in sex acts; or material which denigrates the objects or beliefs of the adherents of a particular religion or nonreligion.”