Performing art: National Endowment for the Arts v. Finley.

Karen Finley claims to be an artist. A performance artist.

Not everyone agrees.

Finley's art is who she is. She grew up in a Chicago suburb and was educated at the San Francisco Art Institute. (1) She describes herself as the child of a "not white" mother and a "manic-depressive jazz musician [father] who eventually committed suicide ... 'I have used that information in my artmaking I think very well' ... 'I had to get out that emotion somewhere.'" (2)

Her most infamous performance was described in the Harvard University Gazette in an article following a public lecture she gave at Harvard in 2002. The title was We Keep Our Victims Ready.

She took her inspiration from Tawana Brawley, the 16-year-old who

was found alive in a Hefty bag covered with feces near her home in

upstate New York. Finley was moved when Brawley was accused of

perpetrating this act herself. "Was this the best choice? What was

the worst choice? What was the other choice?" she said of Brawley's

apparent desperation. "All of us have that moment where puttin' the

shit on us is the best choice we have."

At the end of the piece, after smearing herself with the

feces-symbolic chocolate, Finley covers herself with tinsel

because, she said, "no matter how bad a woman is treated, she still

knows how to get dressed for dinner." (3)

The Gazette article described other, thematically related works. One is "The Body as Rorschach Test."

[It] showed Finley at work in a studio, surrounded by paintbrushes

and other tools. Instead of using them, however, she pulls her

breast out from behind her apron and "paints" on a black page with

her breast milk, growing increasingly animated and ultimately using

both breasts.

Another piece features large, close-up photographs of her

daughter's birth surrounded by Post-it Notes of quotes by the

practitioners who assisted the drug-free delivery of her 9-pound

baby. "I couldn't believe that people were telling me to relax,"

she said. "This was the most dismissive piece of crap I ever

heard." (4)

Finley discussed some of her more overtly political work in an interview in The Nation with Bryan Farrell. (5)

[Question:] George & Martha [one of her performances about George Bush and Martha Stewart] had a brief theatrical run in 2004, in which you played the Martha character. Was it difficult to perform such an intense yet insidious psychosexual relationship? Did audiences react the way you expected?

[Finley:] Well, I did perform it nude. And I did diaper Bush. That was a lot of fun....

I think we also have to look at our national narratives. We have to be seeing that with Reagan, who was the child of an alcoholic. And when Clinton had his acceptance speech, he was talking about standing up to his father. We vote in a national narrative that we relate to. That's why I was wondering ... how did this guy get in? ...

... Why is he so simple? Why does he act so stupid? I think it's to make himself stay like a child.... Even Laura is like his mom. She's a librarian. It's like marrying the teacher.... I think everyone likes the fact that he's the black sheep.... Everyone thought he was the dumb kid. And he showed them. That's one reason I'm against inherited wealth. The playing field would have been even, so he could have just started on his own resources and self-generated what he was doing rather than what he was afforded by the family dynasty. I think he could have had a great bar in Houston.

Finley's performances are bawdy, lewd, dirty, political, powerful. The critic C. Cart described his reaction in a Village Voice review. (6)

When I first saw Finley performing in the clubs in 1985, she was

doing scabrous trance-rap monologues that seemed to burst right

from the id. First she'd walk out in some godforsaken prom dress or

polyester glad rag, presenting herself as the shy and vulnerable

good girl. Then the deluge. While the pieces were heart-stopping in

their sexual explicitness, they were never about sex so much as

"the pathos," as she called it, the damage and longing in everyone

that triggers both desire and rage. She could take a subject like

incest and push it to surreal extremes. Above all, she would

address it without euphemism. For me, these performances were

cathartic, amazing.

But not everyone agreed that Finley was an artist and that her performances were art. As controversy exploded in 1989 over the National Endowment for the Arts ("NEA") grant funding to support the exhibition of Robert Mapplethorpe's homoerotic photographs and Andres Serrano's work, Piss Christ, Karen Finley got caught in the aftershocks. Her request for NEA support for her performance art was rejected by the NEA after consideration of "general standards of decency and respect for the diverse beliefs and values of the American public." (7) Prior to 1990, the NEA funded art based on its artistic merit as art. After 1990, Congress required that grant decisions of the NEA also take into account "general standards of decency and respect." (8) Karen Finley's work was judged indecent and disrespectful, a conclusion not only supported but widely voiced by such personages as Senator Jesse Helms of North Carolina, who led the fight to enact and thus impose the decency and respect requirement on the judgments of artistic merit made by artistic panels of the National Endowment.

Having "smeared herself with chocolate, painted with her own breast milk, put Winnie the Pooh in S&M gear, and locked horns with conservative Sen. Jesse Helms," (9) Finley was subjected to criticism not only from the political and religious right, but also from gallery owners and from the National Organization for Women ("NOW"), which objected to Finley's "The Virgin Mary Is Pro-Choice" design for a T-shirt. (10) She claims to have been blindsided by the opposition to her work and the resulting political conflagration, saying, "When I finally realized that Jesse Helms was actually having a public sexually abusive relationship with me and I [became a free speech advocate and symbol].... I changed the relationship and I think that I've been healthier ever since...." (11)

Performance, not diplomacy, it appears, is her forte.

Karen Finley ultimately joined other artists in a lawsuit seeking to prohibit the NEA from considering decency and respect as part of its grant-funding decisions. As the lawsuit wound its way through the federal courts, she lost at first, and then won, finally arriving on the doorstep of the United States Supreme Court where, at shortly after 10:00 a.m. on Tuesday, March 31, 1998, the Justices turned their attention to the oral argument in the Finley case. To describe her case as much-watched and much-argued would be a colossal understatement.

Before turning to the Finley case, two important matters need to be touched upon. The first is the focus with which we will explore Finley's claim. Our interest here is with the central questions of art, aesthetics, and how, when, why, and if government should ever intrude into the artistic and aesthetic realms when regulating expression. Are these ineffable, or simply prohibited, domains for government? Were Finley's performances "art"; if so, what accounts for that conclusion, and what consequence should the conclusion have for art's protection from government regulation under the First Amendment? Karen Finley's claim is that her work is art. Is the stripper's work in a bar art? What if the stripper covers her nude body with chocolate, as does Finley? Or shouts obscenities? Or intends by her work not just to titillate, but to symbolize the desperate role of women in a conventional and male society? Does a cognitive "message" strengthen the claim that something is art, or is its effect exactly the opposite?

The Oxford English Dictionary ("OED") defines "art" by employing many layers of potential meaning. The term's most ordinary usage is, according to the OED, "Skill; its display or application," or "learning of the schools," as in the liberal arts. (12) The more fitting definitions for our purposes are, again according to the OED, "[t]he application of skill to subjects of taste, as poetry, music, dancing, the drama, oratory, literary composition, and the like ...: Skill displaying itself in perfection of workmanship, perfection of execution as an object in itself." (13) Similarly, art is "[t]he application of skill to the arts of imitation and design ...; the skilful production of the beautiful in visible forms." (14)

From these definitions we might conclude that art has to do with skill as to form, in itself, as in perfection of form and execution; and as to the beautiful, in matters of taste. Beauty and taste, moreover, go not only (or not so much) to a message conveyed (cognition), but to perception itself, as in beauty, pleasure, comfort, or evoked emotion. Art rests on emotion, or aesthetic perception, rather than cognition, or rational understanding. "Aesthetic," in turn, according to the OED, means "[o]f or pertaining to sensuous perception, received by the senses," or "[o]f or pertaining to the appreciation or criticism of the beautiful." (15) And aesthetics is "[t]he science which treats of the conditions of sensuous perception," and "[t]he philosophy or theory of taste, or of the perception of the beautiful in nature and art." (16)