May an opera house limit its productions to operas, or must it also show rock musicals? May a municipal theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis?"'" As Professor Kenneth Karst observed in his comment on Southeastern Promotions, the Court's majority "answered these questions with silence."The failure of the Court to respond to Justices Scalia and Rehnquist is puzzling, because in both cases their questions are easily answered. ...
None of these answers, however, would have required a different result in Arkansas Writers' Project or in Southeastern Promotions.Thus, although the examples employed by Justices Scalia and Rehnquist may have been "irresistible," these examples were not "counter examples," because the conclusions they assumed were perfectly consistent with the results reached by the Court's majority in both cases. An appreciation of this consistency is important not only in connection with those two cases in particular, but also in connection with he larger question of government support for the arts in general.The purpose of this Essay is to promote such an appreciation, and its thesis is this. First, the first amendment does impose standards by which courts may evaluate the constitutionality of government subsidies of cultural and artistic expression. Second, those standards do permit the government to be selective about the recipients of its largess,provided the government uses appropriate criteria in making its selections. Third, some criteria, though appropriate, must nevertheless undergo strict scrutiny. And, fourth, in many cases such criteria will withstand strict scrutiny, although the criteria in Arkansas Writers'Project and Southeastern Promotions did not.
Lionel S. Sobel,
First Amendment Standards for Government Subsidies of Artistic and Cultural Expression: A Reply to Justices Scalia and Rehnquist,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss3/4