In 1989 the National Endowment for the Arts (the "NEA") caused a stir by funding two exhibitions of photographs by Robert Mapplethorpe and Andres Serrano. The pictures were vulgar and irreverent, and many people thought that the NEA should not sponsor them with tax money. Whether the NEA can actually control the content of speech that it pays for is a hard First Amendment question. I want to look at how Congress has tried to answer it. Congress seriously considered two solutions, and adopted one of them in 1990. Both rely on analogies drawn from the area of race relations. This is not as strange as it sounds. There are some parallels in the problems and the solutions, and the politics of the situation makes the race analogy especially appealing. But this is not the kind of explanation, and maybe not the result, we would get from the judicial process.
John H. Garvey, Black and White Images, 56 L. & CONTEMP. PROBS. 189 (1993).